Globalization and International Law

Globalization and International Law

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Gl ob a l i z at ion a n d I n t e r nat iona l L aw

David J. B ederman

GLOBALIZATION AND INTERNATIONAL LAW

Copyright © David J. Bederman, 2008. All rights reserved. First published in 2008 by PALGRAVE MACMILLAN™ 175 Fifth Avenue, New York, N.Y. 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978–0–312–29491–5 (hardcover) ISBN-10: 0–312–29491–3 (hardcover) ISBN-13: 978–0–312–29478–6 (paperback) ISBN-10: 0–312–29478–6 (paperback) Library of Congress Cataloging-in-Publication Data Bederman, David J. Globalization and international law / David J. Bederman. p. cm. Includes bibliographical references and index. ISBN 0–312–29478–6—ISBN 0–312–29491–3 1. International law. 2. Globalization. I. Title. KZ3410.B425 2008 341—dc22 A catalogue record for this book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: June 2008 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

2007048028

For Frank J. Cuzze, Jr., who lived a century of progress with the wisdom and faith of the ages

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C on t e n t s

Preface

ix

Abbreviations

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Part 1

A Short History of World Law

1 Empire 2

3

Belief

11

3 Conflict

19

4 Commerce

27

5 Dignity

35

6 Universalism

43

Part 2 Today’s Globalism 7

Movement

55

8

Commons

71

9 Disciplines

87

10

Crime

103

11

Culture

119

12

Technology

131

Part 3 Challenges for Globalism and World Law 13

Diversity

147

14

Permeability

159

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C on t e n t s

15 Legitimacy

171

16 Exceptionalism

181 Part 4 Values for World Law

Conclusion

191

Notes

203

Index

235

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his book questions conventional wisdom about globalization and the development of a new world legal order. Although one might expect that the two topics linked together in the title of this volume—globalization and international law—would be the subject of countless studies and reflections that has actually not been the case.1 Indeed, one of the peculiarities of contemporary globalization research is the extent to which it segregates what are perceived to be the “realities” or “empirics” of globalizing developments from any analysis of the jurisprudential, legal, and regulatory ordering of this new aspect of international life. This book will remedy this gap in scholarship by offering both an historical and pragmatic account of the relationship between globalization and international law. Conflicting definitions and paradigms of the phrase “globalization” have been perennially debated in academic literature and public discourse. Indeed, it has come to mean all things to all people, describing “a process, a condition, a system, a force, and an age.”2 Globalization is often referred to, in David Held’s and Anthony McGrew’s famous formulation, as a sociological process, “embod[ying] a transformation in the spatial organization of social relations and transactions—assessed in terms of their extensity, intensity, velocity, and impact—generating transcontinental or interregional flows and networks of activities, interactions, and the exercise of power.”3 But one vitally important theme of this book is that globalization is not just about the international dynamics of society and culture, or even of economics (which it is most often associated with), but also has definitive historical, political, and, yes, legal, aspects that need to be fully explored if a complete picture of contemporary international relations is to be appreciated. The concept of international law—the norms, rules, and institutions that govern the relations among States and the conduct of actors, transactions, and relationships across national borders—is more conventional (and less contested), even though probably less acknowledged in current debates about international affairs. Although my approach to globalization is from the perspective of both an international historian and academic international lawyer, this book is by no means a conventional treatise on the law of nations. Quite the contrary, this volume attempts to chart the routes to, and boundaries of, a terra incognitae: a newly emerging body of global rules of political, social, and economic interaction that can be rightly called “world law.”

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Let me be clear here: this book carries no brief for the idea that contemporary globalization should lead inevitably and invariably to some form of world government. Instead, I see the concept of world law as an evolution of previous versions of transnational governance—whether called the “law of nations,” “international law,” or “transnational law.” Such writers as Harold J. Berman and Wilfrid Jenks have made a sustained case for a developing “world law” underpinning global civil society along the lines of a common law of mankind or a new ius gentium, or “law of peoples.”4 Berman’s definition of world law is sweeping and inclusive: the body of law that “combines inter-state law with the common law of humanity, on the one hand, and the customary law of various world communities, on the other.”5 If anything, however, I am deeply skeptical about the validity of three central tenets for the legal bases of globalization. The first two propositions are historical in character. It has been consistently contended that the current period of globalization we are experiencing is utterly unique and unprecedented, and, therefore, previous approaches to world legal order can have no relevance to present times. This is altogether fallacious. As discussed in great depth in this volume (especially in the first part), human history has seen at least three extraordinary epochs of globalization before this contemporary period. Each of these earlier eras of globalization featured significant bodies of world law, as manifested in attempts to structure international relations along predictable and uniform lines. In short, globalization is not a new concept. Some of its current manifestations may be novel (and many of these will be reviewed in part two of the volume), but that does not make contemporary globalization legally unprecedented. The second major fallacy in much of globalization scholarship today is that the globalizing trends and phenomena we are experiencing are inevitable and inexorable. Yet, it becomes clear from any historical narrative of globalization and the evolution of the rule of law in international relations that globalization has proceeded through a series of historical cycles. Within those periods of globalizing activity, distinctive trends toward world legal order occurred. But it is also true that human history has witnessed as many (if not more) periods of de-globalization, of a definitive reversal of fortunes for these trends and patterns. So, if globalization has been a cyclical phenomenon, it also follows that it is not inevitable, and also quite reversible. This has vitally important implications for designing and structuring international legal systems and regimes that are the product of (or at least associated with) globalizing moves. That leaves the third, and final, postulate of contemporary globalization, widely held by many international law scholars: that globalizing trends invariably result in positive changes for the world legal order. As the world becomes more closely knit together, so this theory holds, the legal relationships among international actors will become more clearly defined and regulated. I question this assertion throughout much of this book (especially in its third part). I do so not because I believe that law is “epiphenomenal” or irrelevant for international relations (as many so-called “realists” believe). Rather, I am

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concerned that the institutions and process of international law are not keeping pace with changes in the international community. As the intensely positivist and rationalist, nineteenth- and twentieth-century vision of international law is giving way to a new paradigm of world law, one can legitimately wonder what will be the central legal values and principles for the next era of globalization (something that will be considered in the final part of this volume). In short, I believe that international law has a special, but limited, role to play in many of the key policy debates about the impacts of globalization today. Keeping these three assertions in mind—that globalization is not new; that it is cyclical and reversible; and that world law plays a special, but limited, role in its progress—this book’s exposition will unfold in a series of discrete steps. Part 1, somewhat immodestly titled “A Short History of World Law,” teases out what I think are six defining historical features of globalization, and relates them to correlate legal and political developments. Whether one considers this an intellectual history of globalization and international law, or simply a broader historical conspectus of international relations, does not matter. Although it sounds clichéd, history really does matter in any understanding of where we are in regard to today’s globalizing trends, especially in recognizing that (in many respects) they are fragile and ephemeral. Part 2 is the heart of this book. It examines the distinctive features of today’s globalism through a series of six themes. This section of the book was deliberately not written as a hornbook or treatise on international law. Rather, I have selected a number of vignettes that take a current topic of globalization and deliberately placed them in an international legal and policy context. I have tried to choose examples of globalizing trends and problems that are diverse, relevant, and provocative. My selections range across the doctrinal spectrum of international law; topics are chosen from international environmental and economic law, the law of global “common spaces,” intellectual property and trade issues, human rights and international security problems. If any criteria guided my choices, it was that the globalizations problems presented here should fairly reflect the concerns and attitudes of all actors and participants in the international community (and not just those of people living in postindustrial, developed, and powerful countries in Europe, North America, and the northern Pacific). Part 3 integrates the historical and legal frameworks of the book’s earlier parts and explores the primary critiques of international law in today’s globalizing processes. There are many challenges to the role of international institutions and regimes in global society. The discussion offered here is intended to provide a broad analytic framework for rethinking the essential assumptions of today’s international legal order and possible reforms to that system. Insofar as we assume that globalizing trends will continue (and that may be a heroic assumption), it is also worth considering how international law will continue to evolve into world law over the coming years, and what

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the legitimate limits of legal and regulatory institutions will be in managing global order. Ultimately, the legitimacy of the entire international legal order turns on the selection of the values and principles we care most to protect and preserve in the face of globalizing developments. These will be discussed in the final part of the book, where we can take stock of the objects that are being pursued by globalization, and to what end. In short, this volume takes a hard look at the connections between globalization and world order, challenges conventional wisdom, and charts a course not only for further study but also for the practical realization of a just world under law. *

*

*

As is usual, I incurred many debts in writing this book. This project was conceived just after the millennium, and has undergone a variety of transformations over the past eight years. I am grateful to colleagues at Emory University (my home institution), as well as Georgetown’s and the University of Illinois’ law faculties, for allowing me the opportunity to work-shop portions of the draft. I appreciate the patience and encouragement of my editors at Palgrave Macmillan who lent support for this project even during fallow times. I am immensely grateful for the positively superb research assistance of Dr. Lara Michaela Pair, graduate of Emory University School of Law and now of the Vischer law firm in Zurich, Switzerland. The staff of Emory’s Law Library, particularly Will Haines, were magnificent with their research support. Lastly, as always, I acknowledge the love, kindness, and support of my family over the years in which this book was planned, researched, and drafted. We have experienced together many changes and passings over this time. This book is dedicated to the memory of my father-in-law who inspired me to complete this project.

Notes 1. But see such works as Globalisation and the rule of law (Spencer Zifcak, ed.; New York: Routledge, 2005); The third world and international order: law, politics, and globalization (Antony Anghie, ed.; Leiden, Holland: Martinus Nijhoff, 2003); Björn Hettne, International law, in The global transformations reader: an introduction to the globalization debate (David Held & Anthony McGrew, eds.; Malden, MA: Polity Press, 2000); Paul Schiff Berman, From International Law to Law and Globalization, 43 CJTL 485 (2005); Frank J. Garcia, Globalization and the Theory of International Law, 11 International Legal Theory 9 (2005); Peter J. Spiro, Globalization, International Law, and the Academy, 32 NYUJILP 567 (2000); Robert Wai, Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization, 40 CJTL 209 (2002). 2. Manfred B. Steger, Globalization: a very short introduction 7 (Oxford: Oxford Univ. Press, 2003).

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3. David Held & Anthony McGrew, Globalization, in Oxford companion to politics of the world 324 (Joel Krieger, ed.; Oxford: Oxford Univ. Press, 2001). 4. See Harold J. Berman, World Law, 18 FILJ 1617 (1995); C. Wilfred Jenks, The common law of mankind (New York: Praeger, 1958). 5. Berman, supra note 4, at 1622.

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A bbr e v i at ions

ABMs AIDS AJIL Ann Dig ASEAN ASOC ATCA ATCMs ATCPs ATS BIS BITs BYBIL CDC CDEM CEDAW CITES CJIL CJTL CMI CR AMR A CRC DEA DNA ECHR EFT EIA EJIL Eng Rep EPA EU EUROPOL

Antiballistic Missile Acquired Immune Deficiency Syndrome American Journal of International Law Annual Digest of Public International Law Cases Association of Southeast Asian Nations Antarctic and Southern Ocean Coalition Alien Tort Claims Act Antarctic Treaty Consultative Meetings Antarctic Treaty Consultative Parties Antarctic Treaty System Bank for International Settlements Bilateral Investment Treaties British Year Book of International Law Centers for Disease Control Construction, Design, Equipment and Manning Convention on the Elimination of all Forms of Discrimination Against Women Convention on International Trade in Endangered Species Chicago Journal of International Law Columbia Journal of Transnational Law Comité Maritime International Convention on the Regulation of Antarctic Mineral Resource Activities Convention on the Rights of the Child Drug Enforcement Agency Deoxyribonucleic Acid European Convention of Human Rights Electronic Funds Transfers Environmental Impact Assessments European Journal of International Law Reports of English Cases (1094–1873) Environmental Protection Agency European Union European Police Office

xvi

FAO FATF FCN FCPA FDI FGM FILJ F Cas F2d & F3d F Supp G-8 GATT GDP GIELR GMOs GPS GWILR HILJ HIV IAEA IBRD IACAC ICANN ICAO ICC ICCPR ICESCR ICJ ICLQ ICRC ICSID IEEPA IETF IHR ILC ILM ILO ILR. IMF IMO

A bbr e v i at ions

Food and Agricultural Organization Financial Action Task Force Friendship, Commerce, and Navigation Foreign Corrupt Practices Act Foreign Direct Investment Female Genital Mutilation Fordham International Law Journal Federal Cases (U.S.) (1789–1880) Federal Reporter (U.S. Appeals) (1880–) Federal Supplement (U.S. Districts) (1932–) Group of Eight General Agreement on Tariffs and Trade Gross Domestic Products Georgetown International Environmental Law Review Genetically Modified Organisms Global Positioning System George Washington International Law Review Harvard International Law Journal Human Immunodeficiency Virus International Atomic Energy Agency International Bank for Reconstruction and Development/ World Bank Inter-American Convention Against Corruption Internet Corporation for Assigned Names and Numbers International Civil Aviation Organization International Criminal Court/International Chamber of Commerce International Covenant on Civil and Political Rights International Covenant for Economic, Social, and Cultural Rights International Court of Justice International and Comparative Law Quarterly International Committee of the Red Cross International Centre for the Settlement of Investment Disputes International Emergency Economic Powers Act Internet Engineering Task Force International Health Regulations UN International Law Commission International Legal Materials International Labor Organization International Law Reports International Monetary Fund International Maritime Organization

A bbr e v i at ions

IMT INTERPOL INCP IP IR A IRTF ISBA ISP ISS ITO ITU League LOST LPIB LNTS. MAI MARPOL MFN MJIL MLATs NAFTA NGO NIEO NYUJILP

xvii

International Military Tribunal International Criminal Police Organization International Network for Cultural Policies Intellectual Property Irish Republican Army Internet Research Task Force International Sea Bed Authority Internet Service Providers International Space Station International Trade Organization International Telecommunications Union League of Nations Law of the Sea Treaty Law and Policy in International Business League of Nations Treaty Series Multilateral Agreement on Investment Treaty on the Prevention of Pollution from Ships Most Favored Nation Michigan Journal of International Law Mutual Legal Assistance Treaties North American Free Trade Agreement Nongovernmental Organization New International Economic Order New York University Journal of International Law and Policy OAS Organization of American States ODC Ozone Depleting Chemicals OECD Organization for Economic Co-operation and Development OSCE Organization for Security and Co-operation in Europe PCA Permanent Court of Arbitration PCIJ Permanent Court for International Justice PoW Prisoners of War PTO U.S. Patent and Trademark Office RCADI Recueils des Cours de l’Academie de Droit International de la Haye RIAA UN Reports of International Arbitration Awards RUF Revolutionary United Front SARS Severe Acute Respiratory Syndrome SDRs Special Drawing Rights SEC Securities and Exchange Commission Soc & Legal Stud. Social and Legal Studies SPS Sanitary and Phytosanitary Stat. U.S. Statues at Large

xviii

TNCs Transnat’l L. & Contemp. Problems UCH UN UN Doc UN GA Res UNCLOS UNCITR AL UNESCO

A bbr e v i at ions

Transnational Corporations

Transnational Law and Contemporary Problems Underwater Cultural Heritage United Nations United Nations Document UN General Assembly Resolution UN Convention on the Law of the Sea UN Conference on International Trade Law United Nations Educational, Scientific and Cultural Organization UNHCR United Nations High Commissioner for Refugees UNIDROIT International Institute for the Unification of Private Law UNITA União Nacional para a Independência Total de Angola or National Union for the Total Independence of Angola UNTS United Nations Treaty Series U.S. S. Ct. United States Supreme Court Reporter (when used in the Notes) USC United States Code VCCR Vienna Convention on Consular Relations VJIL Virginia Journal of International Law VJTL Vanderbilt Journal of Transnational Law WDC World Diamond Council WHO World Heath Organization WIPO World Intellectual Property Organization WMO World Meteorological Organization WTO World Trade Organization YJIL Yale Journal of International Law YB Int’l L Comm’n Yearbook of the UN International Law Commission

1

A Short H istory of Wor l d L aw

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1

Empire

T

his first portion of the volume will examine, in an historical perspective, international law’s role in response to globalizing trends. The exposition will not necessarily be chronological in presentation, but, rather, will focus on a few essential themes that arise in world order studies. The first of these is how we conceive of, and how we construct, a global legal order, and the essential actors in that process. For almost all of human history, the essential motivating force for the creation of rules of transnational behavior have been political aggregations. That is not to say that individuals, business associations, religious polities, and other groups have not been influential players in the process of fashioning world law. Nevertheless, it has been primarily political bodies that have been decisive in the creation, implementation, and enforcement of international legal norms. Whether we call these entities States, nations, coalitions, alliances, organizations, or empires, really does not matter. What is of concern is how these bodies have behaved and interacted throughout history to create authentic international communities. I take as my working definition of a State system Professor Hedley Bull’s formulation in The Anarchical Society: A society of states (or international society) exists when a group of states, conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations to one another, and share in the working of common institutions.1

Implicit in this definition is that political entities are organized and think of themselves as States, and that it is possible to discern “common interests and . . . values” in deciding whether those States deal with each other on a “conscious” basis. Both inquiries—the existence of States and the identification of conscious value systems—are essential in the context of understanding the historical processes of globalization. The reason that this is significant is that humanity has gone through a number of historic ages of globalization. The first of these was in classical antiquity, in which not only Mediterranean and Near Eastern societies coalesced into State systems, but also interacted with equally large and

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sophisticated polities on the Indian subcontinent and China. The prevailing trend in legal literature has been to sharply dismiss the existence of authentic State systems in ancient times. One consistent point made by these writers is that ancient States lived in a perpetual condition of war and conflict, incapable of sharing any sense of international community. Michael Rostovtseff made this observation: The fundamental conceptions of international relations in the ancient and in the modern world are utterly different. The modern world considers the natural condition of life in our society to be the state of peace. War is nothing but a temporary suspending of this natural condition and is regarded as an abnormal state. Free intercourse between different nations is normal; restrictions and limitations of the rights of foreigners are abnormal and require serious reasons. . . . But in the ancient world, generally, the natural attitude of one state towards another was that of potential and actual enmity.2

Although this view has been criticized as being ahistorical and unrealistic,3 its persistence is notable, particularly in the continuing debate about the nature of balance-of-power politics in the ancient world.4 David Hume acknowledged that this ordering principle of international relations could be dated to antiquity,5 and Rostovsteff said as much when he noted that “periods of the balance of power [in antiquity] were great creative periods in all domains, including the domain of international relations and international law.”6 The critique of the notion of State systems in antiquity has taken a different turn of late. Some legal writers, largely influenced by Sir Henry Maine’s work on ancient law,7 have looked closely at issues of ethnic, religious, and social particularism found in ancient States and wondered whether such openly atavistic polities could ever have achieved a level of cooperation with their diverse neighbors. Professor Nawaz made the point nicely when he wrote that “[ancient] societies lived in isolation from each other, separated by geographical factors and racial considerations. Besides, common international interests of the modern type did not exist in the past to unify them.”8 These factors of cultural particularism, especially as they manifested themselves in cultural identities and religious differences, were quite important in conditioning the ancient State’s response to the demands of international relations. But many scholars believe that ancient States were able to overcome this obstacle. The point that is most often made in the literature is that an ancient State, once it had “become aware of its own corporate existence, found itself by the necessities of international intercourse obliged to accord recognition to the same quality in other communities.”9 Most recently, Vilho Harle has powerfully argued that ancient States were sovereign and territorial, and they embraced community as the basis of a peaceful, international social order.10 But the primary impulse for globalization in the ancient world was the thrust for empire. Ancient States sought to expand their reach politically, economically, socially, and religiously by conquest, absorption, and co-optation of peoples of various ethnicities, languages, and beliefs. For

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many of these ancient empires, the goal was nothing less than a universal order, which sought to impose rule on humanity, or at least as much of it as was nearby and available for subjugation. Beginning with the polities of ancient Mesopotamia and Sumeria, and replicated in the cultural cradles of the Indus, Ganges, and Yangtze river basins, polities began to expand their reach through a process combining conquest, trade, coalitions, and diplomacy. This dynamic of empire-building was advanced on an even larger scale by the Egyptians, Persians, Hittites, Macedonians, and Han Chinese, as well (in the Western Hemisphere) by the Olmecs, Mayans, Aztecs, and Incas. For many of these cultures, even though there was often a dominant ethnic, social, and cultural elite, the empires sought to rule over diverse, polyglot, and heterogeneous populations, and often succeeded in imposing their rule for many centuries.11 Empires, along the lines of these ancient Near and Far East models, were authoritarian, coercive, and unilateralist, even as they aspired to universal dominion. Globalization was seem as both a process and instrument of social control, and obviously reflected the relative power of State and imperial institutions. Control of the instruments of power, the conduits of trade, the temples of worship, and the daily interactions of peoples were all seen as a necessary aspect of State-ship and imperial dominion in ancient times. There was, of course, an alternate model in antiquity for a kinder, gentler form of globalizing trends. Although not truly seen through the lens of imperial design, it was no less powerful in its influence. Developed with the dynamic, multipolar, and fractious political life of the Greek city-States of antiquity (especially from 500 to 350 BCE12), a culture of personal autonomy and freedom, rich artistic and intellectual life, and wide-ranging economic and trade opportunities flourished in the eastern Mediterranean basin for many centuries. Not only was Greece able to withstand the onslaughts of its imperialist neighbor, Persia, but it was also able—by virtue of population migrations, trading networks, and transmission of cultural values—to remake the ancient conception of globalization. Greek culture ultimately became the standard and iconic set of values for the ancient Near East (owing to Alexander the Great’s conquests) and much of Europe (because of the adoption of Greek attitudes by Roman proponents).13 This is not to suggest that the Greek approach to globalization lacked elements of coercion, force, and power, for it surely possessed these aspects as well. But in its construction of a global legal order, the Greek conception of hegemony—the idea that, in any international community, there was one leading polity that exercised substantial control over its neighbors—was certainly contrasted with an imperial sensibility of outright dominance. Athenian hegemony was based on its prodigious trading presence and active tributary system. Yet, as with all hegemonic systems, the balance of power could radically shift in a matter of years, as occurred with Athens’ conflict with Sparta during the Peloponnesian War.14 For modern Western civilization, seated in Europe, the Greek approach to globalization had its most profound impact through the institutions and

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laws of the Roman Republic and Empire, which came to dominate the Mediterranean littoral and European hinterland for many centuries (from 100 BCE to 500 CE), in an era known as the Pax Romana. The Roman Empire was a multilingual and multiethnic entity, held in rein not only by a fairly strong centralized government (with the emperor in Rome), but also with autonomous provincial regimes. Trade and commerce knitted the empire together, such that it was possible for commodities from Egypt and Asia Minor to be routinely traded to the populations of Britain and Gaul, and vice versa. Military protection from incursions by forces outside the empire (whether the Germanic peoples of Northern Europe, the Huns from Central Asia, or the Parthian Empire of Persia) was provided by Roman legionary formations, typically recruited from the regions they were assigned to secure.15 Most significant of all in ensuring the longevity of the Roman Empire was the extension of the rights of citizenship to most of the peoples included within its domain. With Roman citizenship came access to some degree of social mobility, to participatory markets and trade, and to military security. All of this was in exchange for notional allegiance to the regime, military service, and the payment of taxes. But Roman citizenship conferred an additional benefit: rights under Roman law, including due process in criminal and civil proceedings and the guarantee of property rights. The Romans developed what was called the ius gentium, literally the “laws of peoples,” which was intended to govern the relations between Roman citizens and noncitizens. Created initially during the earlier Roman republican period (500–50 BCE), the ius gentium was an instrument to foster peaceful, predictable relations between Rome and its neighbors. It was later conceived as a prototypical world law, pulling together as elements legal principles that were seen as common to those practiced by all civilized peoples. The ius gentium covered subjects as various as shipping and commerce, rights of inheritance and contracting, and the status of individuals in both war and peace. Principles of decisions applying the ius gentium were recorded in juristic writings and imperial edicts, which were later compiled in the Emperor Justinian’s Digest, a document that would come to have enormous influence on the evolution of the law in the West.16 Other ancient societies emulated the notion of a Roman ius gentium, or fashioned similar concepts in an act of parallel development. Vedic and postVedic Indian States accomplished many of the same objectives of regional control and power as the Roman Empire, as well as transmitting cultural values and trade relations far beyond its boundaries. But probably the most sustained effort of ancient globalization was by the various Chinese imperial dynasties. Beginning with the political consolidation of China by the Chin dynasty after 221 BCE, the successive Han, Sui, and T’ang regimes extended Chinese diplomatic, economic, and cultural influence across all of Asia, and (occasionally) into Africa, the Near East, and the Pacific. Extraordinary technological innovation, agricultural productivity, trade promotion, and administrative sophistication characterized the Chinese imperial domain

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and its far-flung influence. The Chinese development of the Silk Road—a trade route that stretched from the Chinese coast to Europe—was the paradigmatic example of a truly global exchange of visitors, commodities, and ideas. Chinese codifications of laws—especially as bearing on commerce, trade, immigration, and tribute—dominated the world law practiced by peoples of much of the globe until the early Modern period.17 The first great age of globalizing empires of antiquity ended in the West around 500 CE and in Asia shortly afterward. That is not to suggest that there were no attempts at global empire during the European “dark” and Middle Ages, and during comparable periods in Asia and the Americas. The Crusades of the eleventh and twelfth centuries CE were one (albeit shortlived) example. The Mongol invasions of the twelfth and thirteenth centuries CE managed to actually subjugate, under one political sovereign, Asian, Near Eastern, and European territories. But as essentially nomadic peoples, the Mongols made relatively few contributions to globalizing trends. It was only with the emergence of modern nation-States in Europe, that new imperial patterns in globalization emerged. The second great era of globalization coincided with both European and Chinese impulses for exploration, trade, and colonization, beginning around the year 1450 CE. The “age of exploration,” as it was known in Europe, featured Portuguese, Spanish, French, and English expeditions to open trade and colonial opportunities along the coasts of Africa, the Americas, the East Indies, and the Pacific. Within two centuries, much of the American coastline (and parts of the interior) was part of a vast network of European imperial and colonial domains. In Africa, European trading posts inaugurated the transatlantic slave trade, perhaps the greatest forced migration of peoples ever in human history, one which would have immense consequences for the settlement of the New World. In Asia and the East Indies, European traders encountered sophisticated political regimes (especially in India, the Spice Islands, China, and Japan) which effectively resisted political domination, but which were open to commerce and conversion. Finally, in the Americas, much of the continent was conquered by European powers (with France and England dominant in North America, and Spain and Portugal prevailing in the rest of the hemisphere) bent on colonization, and the extraction of raw materials for shipment to Europe (particularly gold and silver from Central and South American mines).18 By the mid-eighteenth century, European colonial and trade networks extended around the globe. The Indian subcontinent and the Spice Islands were being placed under European political dominance (particularly through the Dutch and English East India Companies). China and Japan, along with other Asian polities, remained politically independent, but often at the cost of diplomatic and economic isolation, even as Asian trade goods (especially spices, ceramics, and fabrics) were exchanged globally. During the seventeenth and eighteenth centuries, European competition for access to colonial territories and markets began to be marked increasingly by conflict. This trend culminated in the Seven Years War (1754–1763), also known as the Great War for

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Empire, which saw theaters of conflict not only in Europe, but also in India, the Pacific, Africa, the Caribbean, and North America.19 Trends in world law during this second period of imperial globalization emphasized an amalgamation of European and Asian forms. Even successful European colonial powers were required to treat with foreign polities (such as the Ottoman Turk, Indian Mughal, Japanese, and Ming Chinese empires) on the basis of equality and mutual sovereign respect. Especially in the Indian subcontinent and East Indies, European trade and military incursions were still conditioned by an international legal system that demanded the observance of local forms and usages.20 While the indigenous polities of the Americas and Africa were often forcibly overthrown (the Iroquois and Cherokee Confederacies were the last effective native American polities), that was the exception and not the rule for this first phase of European-led imperial globalization. The third phase of imperial globalization was also European-dominated, but also featured the political and diplomatic emergence and expansion of Russia, Japan, and the United States. A true “age of empire” subsisted from 1850 to the outbreak of World War I in 1914. With its apogee at the Berlin Conference of 1878, the European powers (especially Britain, France, and Germany) sought to colonize vast swathes of territory in the African hinterland and Indian subcontinent, to wrest key portions of the Near East away from the tottering Ottoman Empire, to create trading establishments throughout the Pacific Rim, and to directly confront the last remaining Asiatic nations (particularly China). Conflict was rife among the colonial powers, with competition reaching a fevered pitch in the last years of the nineteenth century. The Spanish-American and Russo-Japanese Wars at the turn of the century were defining moments for this era of imperial globalization, insofar as non-European States confronted—and defeated—established European powers.21 This last age of imperial globalization featured striking economic and financial interdependence around the world. Trade goods moved (consistent with then-extant tariff regimes and other barriers) with relative ease. Foreign direct investment (FDI), flowing out of European markets and directed to North and South America, to India, China, and Japan, and (to a lesser degree) to the African colonies, was a mainstay of the global economy. It was only by the year 1900 that the United States became a net-creditor country, with its investments abroad exceeding those of foreign nations in the American economy. Perhaps most extraordinary of all, the last decades of the nineteenth century saw the largest voluntary migrations of peoples in human history, with the vast expansion of cities and the settlement of empty regions in the Americas, Africa, Australia, and the Pacific Rim. Unlike the previous round of globalization in the seventeenth and eighteenth centuries, the emerging world law of this age of empire was assuredly Eurocentric in focus. Despite the addition of the United States, Latin American republics, and Japan to the family of “civilized nations” (more on which is in chapter 6), the content of international law from this period was largely dictated by European

Empir e

9

State practice, by European treaty settlements, and by the intellectual weight of European legal writers. International legal doctrine was heavily protective of the colonial prerogatives of European nations, of freedom of navigation and commerce, and the unfettered ability of colonial powers to project force against recalcitrant indigenous peoples. In their inter-European relations, the international law of this period emphasized the sanctity of treaty commitments (what was called the doctrine of pacta sunt servanda) and the territorial sovereignty of nation-States.22 World War I (1914–1918) spelled the doom of the imperial period of globalization. The German, Austro-Hungarian, Russian, and Ottoman empires actually perished in the charnel house that was that global conflict. The remaining imperial structures—for Great Britain and France—were severely compromised, and events were set in train that would inevitably see the dismantling of those empires after World War II (1939–1945) and the period of decolonization that would follow. The Japanese Empire that emerged after World War I was also consumed in the subsequent global conflict. What remained in 1945 was a new world order, featuring two global hegemons: the United States and the Soviet Union. Each of these polities relied on a system of alliances and coalitions (some more coercive than others), as well as proxy-actors that could initiate conflicts and provocations around the world, all designed to challenge and stretch the other hegemon’s resources past the breaking point. Most of the cold war period (1945–1989) was not really characterized as a period of political globalization, although other globalizing trends (considered especially in chapters 4, 5, and 6) were prevalent.23 Ultimately, of course, the United States and its coalition of liberal, parliamentary democracies prevailed in its conflict with totalitarian (both fascist and communist) forces. The contemporary period of globalization has been characterized by many political, economic, social, cultural, and legal trends, which are considered together in parts 2 and 3 of this volume. But an imperial trope—the drive for a unifying world law under the authority or control of a single polity aspiring to universal control—is not one of these. Although the United States has been declared the last remaining superpower (or the hyper-power in French parlance), it is by no means clear that imperial dominance is the prevailing mode of political globalization today. Although the United States has, over the past fifty years, exhibited some behavior that would suggest it is prepared to serve as the world’s ultimate enforcer of the values of democracy, human rights, and free trade, that role has not gone unchallenged in many circles (both within the United States and abroad). If anything, it appears that we are moving toward a truly multipolar world (for more on which see chapter 13), in which the traditional institutions of nation-States and of empires are seemingly less relevant. If anything is obvious from the foregoing discussion, it is that empire is rarely a long-lived answer to global order, just as hegemony has not often led to a proper assertion of legal power and authority. The periods of imperial globalization considered here—from classical antiquity (500 BCE–500 CE),

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the age of exploration and colonization (1500–1770 CE), and the age of imperialism (1850–1914)24 —were premised on inchoate and imperfect models of world law. Not even the all-embracing and highly influential idea of a ius gentium had much substantive content apart from a Roman imperial context. Nor, for that matter, did parallel Chinese conceptions. For a more complete picture of the historical dynamics of globalization we must look away from the domain of politics—and of the elusive goal of imperium and hegemony—and focus as well on traditions and trends in the realms of faith, of commerce, and of ideas.

2

Belief

R

eligious traditions and institutions, as well as ideological movements, have been decisive in fashioning a global order. Quite often, this has manifested itself through the development of legal regimes and constructs. Indeed, the role of faith (whether based in religion or other models of human sentience and transcendence) has been even more pervasive for the processes of globalization than has the political thrust for empire. Belief has been a powerful force in the development of international law, especially insofar as it has implicated natural law principles. The ius naturae was ultimately derived from a combination of divine and reasoned sources.1 Religion, morality, and ideology have always exercised an important influence on the development of international law. The Roman law vision of ius gentium (a law of peoples), discussed in the previous chapter, supplied a significant historical pedigree for the notion that there were common principles of conduct for all peoples in all places at all times. Religious values have been drawn from many faith-based traditions, 2 although Christianity (and a peculiarly Thomist vision of natural law) has tended to dominate in Eurocentric international law. Finally, contemporary political and social ideologies—as diverse as socialism, liberation theology, sexual and reproductive freedom, postmodernism, postcolonialism, and globalism— have come also to exercise important influences on the formation of naturalist rules. As a consequence, natural law has been properly seen as a surrogate for “some more concrete conception such as reason, justice, utility, the general interests of the international community, necessity, and religious dictates.”3 Nevertheless, naturalism in international law has suffered from an association of the law of nature with platitudes and assumptions that “were so vague as to become practically meaningless.”4 And natural law as applied to the law of nations has always been an attractive target for positivists who assert that rights and duties presuppose the existence of a legal system established by direct human volition and law-making.5 Much of natural law as a value-system for international law was developed during the formative years of the Roman Catholic Church during the early Middle Ages, and especially in light of its confrontation with another great religious tradition, Islam. The writings of Saint Augustine, Saint Thomas Aquinas, and the canonist Gratian were significant for their understandings

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of the doctrine of just war, holding that a conflict can meet the criteria of philosophical, religious, or political justice, provided it follows certain conditions. The notion of just war has its foundations in ancient Greek society and was first developed in the Christian tradition by Augustine in Civitas Dei, The City of God, in reaction to the absolutist pacifist strain of Christian ethics. It was later elaborated by Aquinas, in his Summa Theologica, and by Gratian, who sought to addresses the morality of the use of force in two parts: when it is right to resort to armed force (the concern of jus ad bellum) and what is acceptable in using such force (the scope of the jus in bello).6 While just war theory will be further discussed in the next chapter in the context of globalizing trends in the management of conflict, it is important to recognize here that religions often found themselves in a position of conflict with other faith traditions. In ancient India, this was a consistent theme of Vedic and post-Vedic writings. Both ancient Buddhist and Hindu texts were preoccupied with the morality of war. But that was not their only concern. The tenets of righteous living and devotion extended to matters of charity, of commerce, and of submission to secular authority. Confucian, Taoist, and Shinto religious traditions—although less pervasive in their globalizing influence in Asia than Buddhism, Hinduism, and Islam—nonetheless conveyed powerful ethical and spiritual values that promoted harmonious living between peoples of various ethnic and linguistic backgrounds. For much of human history, religious traditions were the social and cultural glue that kept many imperial regimes in a sustained and coherent position of authority. It was, however, during the first period of European transoceanic expansion, the age of exploration and colonization (c. 1500–1770 CE), that the religious implications of globalization were primarily felt in the arena of world law. As European powers competed with each other for control and dominance over colonial areas (in Africa, the East Indies, and the New World), they often sought religious justifications for the assertion of sovereignty over indigenous peoples and polities. This became a central ethical and moral problem for the Roman Catholic Church, which was a motive force for both proselytization and conquest outside of Europe. In order to justify such conduct, which would normally be at variance with just war principles, the Church developed, during the late Middle Ages and Renaissance, responses to alien and heretical polities. After the caustic and unsuccessful experience of the Crusades in the Holy Lands (1095–1291 CE), when Catholicism sought to directly confront Islam as a battle of spiritual traditions, the Church turned pragmatic. Especially with the conquest of Constantinople by the Ottoman Turks in 1453, European powers had to face a powerful Islamic force within its own region. And, indeed, the Ottomans were skillful in periodically aligning themselves with European States (particularly France) in order to tip the balance of power in their favor. All of this meant that the Roman Catholic Church—and those States that relied on Church teachings as the basis of their relations with Islamic and other religious traditions (namely Spain, Portugal, France, and the Holy

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Roman Empire in Central Europe)—had to make some distinctive shifts in thinking about the legal aspects of their international relations.7 The first age of colonial globalization was thus fraught with legal problems. Spain and Portugal, the two European powers that were most aggressive about transoceanic expansion in the fifteenth and sixteenth centuries, concluded an agreement—brokered by the Church—to quite literally divide the globe between them. The Treaty of Tordesillas (1494) divided the newly discovered lands outside Europe into an exclusive duopoly between the Spanish and the Portuguese along a north-south meridian 370 leagues west of the Cape Verde Islands (off the west coast of Africa). This was about halfway between those Portuguese possessions and the islands discovered by Christopher Columbus on his first voyage in 1482 (claimed for Spain). The lands to the east would belong to Portugal and the lands to the west to Spain. The other side of the world would be divided a few decades later by the Treaty of Zaragoza, signed on April 22, 1529, which specified the antimeridian to the line of demarcation specified in the Treaty of Tordesillas. That line ran just west of the Philippines.8 The upshot of this development was a legal regime that purported to allocate all lands outside of Europe (except for those occupied by Christian powers as of Christmas Day 1492) to either Spain or Portugal. Aside from the fact that other European powers were excluded from this arrangement (including the French, English, and (later) the Dutch), it also produced disputes between Spain and Portugal themselves. At first, the conflicts were localized and involved the status of the Canary Islands (just off the coast of Africa), but later were extended to Portugal’s claims over Brazil (or those parts of South America east of the demarcation line), and on the other side of the world to the East Indies. It was thus during this period that globalization acquired a distinctive geographical and geopolitical focus. Only after the circumnavigation of the globe by Magellan’s fleet, in 1519–1522 CE, was it truly possible for people to conceive of globalizing trends in a fully coherent manner. The legal disputes between Spain and Portugal widened to an even greater political and commercial set of problems, ones that defined international affairs at the modern advent of international law. The Portuguese and Spanish crowns could agree on one thing: that at least within their undisputed areas of control (as granted by the Treaty of Tordesillas) they could exclude other merchant fleets and colonial expansions. One upstart commercial power, the Dutch Republic, took strong exception to this and began advocating a rule of freedom of navigation. In a famous set of debates in the early 1600’s, pitting Hugo de Groot (Grotius) from Holland and John Selden from England, the Dutch position of mare liberum (freedom of the seas) was vindicated for the following four centuries.9 What was significant about this disputation on freedom of trade and navigation (more on which is in chapter 4) was the emphasis on natural law principles derived from both religious and ethical values. Many of these we would recognize today as central tenets of contemporary globalization.

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Among these are the freedom to travel, to explore the world, to engage in commerce, and to exchange ideas with other cultures. Yet it was a singular aspect of the intellectual history of early-modern Europe that these values of globalization were respected and embraced. Far more controversial, however, was that the international law from this period served as a moral justification for the conquest and subjugation of peoples in the New World and the transatlantic slave trade. In early-modern writings of international law this was a central question, beginning with the writings of such scholastic authors as Francisco de Vitoria (1486–1546) and Francisco Suárez (1548–1617). Vitoria especially confronted and criticized the brutality of the Spanish conquistadors in the New World and openly questioned whether the forcible conversion of native peoples was justified under Church teachings. He did, however, ultimately conclude that European colonization of regions not under the sovereignty of recognizable polities was permissible under then-prevailing notions of international law. What defined an inchoate or “uncivilized” political aggregation of native peoples was left uncertain, but the clear message was that those non-European entities (whether in the Americas, Africa, Asia, and the Pacific) that could successfully resist colonial encroachment would be recognized as sovereign (although at a lower status than Christian nations), while those lands that could be absorbed would be treated as a res nullius, open to occupation and conquest.10 The role of belief in the formation of international law rules began to fundamentally shift from the seventeenth to the nineteenth centuries. In large measure this was a product of the European Enlightenment, and a corresponding change in the role of religion in the political life of European polities. And, to the extent (as already discussed in the previous chapter) that European colonial and imperial designs and European-led patterns of globalization were fashioning a new world legal order, it would be natural to expect that the intellectual bases for these developments would also be premised on European fashions. We are confronted today with the dual legacy of beliefs in creating our contemporary global order. The first is the continuing inequality (partially traced to colonialism and imperialism) of global resources. The second is that while many of the world’s peoples remain profoundly faithful, the intellectual foundations of world law have substituted religion in favor of whatever the current ideological fad of the moment might be. One way that the role of belief in making international law can be seen to evolve is in the changing ideological conceptions of natural law. The exogenous character of natural law rules has always posed difficult problems for identifying a basis of international obligation. Social contract theorists (such as Jean Jacques Rousseau, Roscoe Pound, H. Krabbe, and Leon Duguit11), who were able to fashion credible (if not entirely coherent) theories of obligation and law-observance in domestic legal systems, were not able to replicate the feat for the law of nations. Although some early publicists emphasized the “necessity of law” as an adjunct of any community (drawing from the maxim, ubi societas, ibi jus),12 the difficulty is characterizing international

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life as an authentic society, with the requisite elements of civil community and social solidarity. The British “International Society” School and the new American international relations approach of constructivism attempt such an argument,13 but it still founders on the supposition that a real “social bond” or “social contract” can really exist as between autonomous and sovereign States, much less other kinds of transnational actors. Closely related to social contract theories, but now largely discredited, is the notion that every nation, by virtue of its statehood and capacity as a member of the international community is endowed with certain essential, inherent or natural rights. The fundamental rights of States doctrine thus locates a naturalist basis of obligation for international law in the idea that polities are really like individuals, endowed with certain inalienable dignities and prerogatives. These fundamental rights are exogenous in the sense that they are antecedent to other sources of international law; they pre-existed and conditioned the international legal system itself.14 The notion of fundamental rights has, however, been transformed into the idea of fundamental duties of States. These are the jus cogens obligations (such as prohibition against genocide) which nations are not free to contract-out of. The obvious difficulty with this fundamental rights approach is its strong Statist bias. To the extent that States are no longer the only kind of entity that can bear international rights and duties, and thus no longer the sole subjects of international law, this theory cannot really account for reasons why other types of actors obey international law rules. Quite apart from that, this conjecture lumps different kinds of States, with potentially divergent political, social, and legal cultures, into one monolithic category. It also reflects an overweening atavism and sense of individualism among States. That international polities are in a proverbial “state of nature” seems almost to be a negation of the sense of community argued by other natural law theorists.15 Likewise, the naturalist conception that States are restricted in their actions by fundamental obligations, particularly in a human rights context, can be attacked as vague and incoherent. Natural law theories of international obligation seem to be internally conflicted as to whether States (and other transnational actors) are more like atomistic individuals or participants in a community. Two of the most influential ideological movements of the past centuries have squared-off on precisely this question. The first is derived from the German philosopher Immanuel Kant’s 1795 publication, Project for a Perpetual Peace. In his essay, Kant described his proposed peace program as comprising two phases. He first offered a set of “Preliminary Articles,” steps that countries could adopt immediately, or with all deliberate speed. These included rules about the construction of peace treaties, cession of territories, abolition of standing armies, contracting of external debt, prohibitions on interference in the internal affairs of neighbors, and the conduct of hostilities. These subjects essentially defined the field of public international law in the eighteenth and nineteenth centuries. Kant also imagined a second set of principles—what he called “Definitive Articles”—that would provide not merely a cessation of

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hostilities, but a foundation on which to build an everlasting peace. These included the notions that “the civil constitution of every State should be republican,” that “the law of nations shall be founded on a federation of free States,” and that “the law of world citizenship shall be limited to conditions of universal hospitality.”16 Kant’s program established not only a rejection of European particularism and the adoption of universalist principles for international law (more on which is in chapter 6), but also drafted the blueprint for most contemporary projects of world government. Essential to Kant’s vision was that all States that were members of the international community would be constituted as republics, or at least as representative democracies, and that international institutions (what he called “federation[s] of free States”) would enforce the rules of international law and enforce international peace and security. Kant’s cosmopolitan insights into world law would thus prove immensely influential in directing the course of international legal rules and institutions over the following centuries, even though his goal for an end of war and a recognition of “world citizenship” have not been achieved, nor are likely ever to be. The counterpoint to Kant’s program of perpetual peace has been, for much of the twentieth century, Marxist-Leninist theories of socialist solidarity amongst worker polities and the struggle against global capitalism. As modern ideologies go, communism had a fervent core of adherents, almost verging on its own belief system (which is ironic given its strongly antireligious stance). Socialist visions of international law were predicated not on a nation-State system constituted as a federation of representative democracies, but as proletarian-led, party-controlled, and command-driven societies. As with other totalitarian regimes of the twentieth century (and, in this regard, Soviet Russia shared much in common with Nazi Germany), international law had no moral content apart from advancing a particular ideological agenda. Kantian elements of an ideal international law (the sanctity of treaties, the possibility of peace, regulation of the global economy, and the control of conflict) were all subordinated, in the socialist version of international law, to a global legal regime that sought—through the extension of an ideological system—global hegemony. In this sense, belief as an engine of change in globalization merged with previous patterns of imperium.17 The best example of this was what was known as the Brezhnev Doctrine, named for the Soviet leader from 1964 to 1982. The essence of the principle was that “[w]hen forces that are hostile to socialism try to turn the development of some socialist country towards capitalism, it becomes not only a problem of the country concerned, but a common problem and concern of all socialist countries.” In practice, this meant that “limited sovereignty” of communist parties was allowed, but no country would be allowed to leave the Warsaw Pact (the Soviet military alliance in Eastern Europe), disturb a nation’s communist party’s monopoly on power, or in any way compromise the strength of the Eastern bloc. Implicit in this doctrine was that the leadership of the Soviet Union reserved, for itself, the right to define the competing world orders of “socialism” and “capitalism.” The doctrine was used to justify

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the invasions of Czechoslovakia in 1968 and of the non–Warsaw Pact nation of Afghanistan in 1979. Application of this principle for justifying the unbridled application of force in pursuance of protecting the ideological character of regimes in the international system, thus led to the loss of legitimacy of global socialism and the political unraveling of the Soviet Union itself in 1989.18 Belief—whether expressed through religious or ideological convictions— has been a central force for international law. The natural law tradition has been just one form of expression for many essential concepts of world law: the creation of a community of nations, the control of conflict, and the embrace of the freedoms of travel, trade, and communication. One should not lose sight that some belief traditions have been hostile to the creation of a world legal order. And, indeed, we may now find ourselves in a period of a renewed “clash of civilizations.” This one is not characterized by ideological differences (as was the cold war) but, rather, one that harkens back to earlier periods of globalization and religious conflicts. How international law can persevere under such conditions of social and cultural stresses within the international community is an important question for the years to come.

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3

Confl ict

World law has played an essential role in managing conflict between

warring polities for millennia. Indeed, it is surprising the extent to which a human behavior that, in all of its manifestations, would appear to be inimical to order and justice has nonetheless been conditioned by legal restraint. This has been the case with decisions made about the conditions for recourse to war (what is known as the ius ad bellum), as well as disciplines on the actual conduct of hostilities (the ius in bello). As was considered in the previous chapter, the natural law tradition gave form to many aspects of just war theory—that armed conflict should not be resorted to except in exceptional circumstances characterized by righteous conduct. Even in antiquity—whether in Vedic and post-Vedic India or in the classical Mediterranean worlds of Greece and Rome—there were highly developed codes of values through which polities decided whether it was right and proper to go to war. Many of these were expressed through faith traditions. Ancient Hindu thought was transformed into a version of realpolitik by the statesmen Kautilya (also known as Chanakya) (c. 350–283 BCE), chief advisor to the first Mauryan emperor Chandragupta. In his volume, the Arthashastra, Kautilya outlined both the moral and political grounds upon which a ruler should be able to use force against an enemy or neighbor.1 Such ideas were replicated in both Jewish and Roman law through the decisions of the sanhedrin and fetials, sacerdotal colleges of priests and jurists, who decided on the legality of planned declarations of war. The essential point for ancient peoples was that a polity should never be regarded as an aggressor in a conflict, and that inevitable victory would come to the party that properly observed the rituals and legalities for initiating conflict.2 Just war theory was transmitted from ancient practices into the faith traditions of both Christianity and Islam, as mentioned in the last chapter. Significantly, from the first ancient period of globalization came the sense that war needed to be controlled, or else its awful consequences would destroy the political integrity, social cohesiveness, and belief systems of the parties that initiated it. Total, unrestrained conflicts in antiquity were the exception, although such conflicts as the Peloponnesian War (between Athens and Sparta), the Punic Wars (between Carthage and Rome), and some campaigns involving the ancient Egyptians, Hittites, and Israelites set

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high standards for cruelty and destruction. Nevertheless, ancient peoples did establish benchmarks of behavior during hostilities, especially with such matters as the protection of civilians during war, preventing the destruction of crops and temples, the proper conduct of sieges, the declaration of truces, and the respect shown to the bodies of fallen warriors. Of course, many of these practices were observed out of a sense of self-preservation and reciprocity, but those were not the only motivations for ameliorating the most atavistic and egregious aspects of ancient warfare.3 During the European Middle Ages, significant advances were made in establishing a common law of warfare. The medieval practices and customs of chivalry were made possible by a common religious tradition throughout most of Western Europe (Roman Catholicism), as well as the distinctive socioeconomic aspects of warfare during that period. With the rise of feudal Europe and the need to ensure order against both external threats (marauding barbarians and Moslem invaders), as well as internal challenges (peasant revolts, famines, and schismatic insurrections), European nobility and landed aristocracy exhibited many common traits, whatever their location. Warfare was conducted with heavily armed mounted knights, who drew their support from feudal landholdings and owed their fealty to higher lords and kings. State sovereignty, as we understand it today, did not exist (and would not really until the sixteenth century). The medieval international system featured crosscutting (not vertical) loyalty and obedience structures, with a variety of political players (including many non-State actors, such as the Church).4 The international law of chivalric conduct emerged from this environment and was obviously designed to support and sustain the power structure of the time. Chivalry emphasized notions of honor, justice, loyalty, obedience, and belief in higher values. (In this respect, medieval European knightly chivalry was little different from other warrior codes during human history, such as the Japanese samurai notion of bushido, Chinese martial arts virtues of xiá, or Islamic standards of behavior for jihadists.) Chivalry also supported a social and political elite that acquired its power at the expense of land-bound peasants, and generally disdained the values that came to be associated with medieval cities: commerce, knowledge, and multiculturalism. Chivalric codes of conduct were meant to perpetuate the control that landed warriors exercised over civil society, even as these elites tried to kill each other in conflicts over territory, autonomy, and honor.5 The international law of chivalry in warfare concentrated on issues of the proper comportment for combat, the display of heraldic devices, the treatment of prisoners (and the rules for ransoming), as well as some rudimentary principles for the protection of noncombatants. Christianity had a modifying influence on the virtues of chivalry. The Peace and Truce of God, announced by the Church in the tenth century CE, was one such example, with limits placed on knights to protect and honor the weaker members of society and also to help the Church maintain peace. At the same time the Church became more tolerant of war in the defense of faith, espousing theories of the just

C on f l ic t

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war; and liturgies were introduced that blessed a knight’s sword, and a bath of chivalric purification. In the eleventh century CE, the concept of a “knight of Christ” (miles Christi) gained currency in France, Spain, and Italy. These concepts of “religious chivalry” were further elaborated in the era of the Crusades, with the Crusades themselves often being seen as a chivalrous enterprise.6 The Crusades—along with the Mongol invasions across Asia and Europe in the thirteenth century CE, and the Black Death of 1347–1351 CE—were among the few transnational galvanizing events that occurred between the first two great eras of globalization (classical antiquity and the age of exploration). Chivalric codes as an aspect of world law had significant doctrinal and legal limitations, as illustrated by the Crusades. Chivalric institutions were usually auto-limited to those of the same social, economic, religious, and cultural affiliations. They simply did not apply beyond particular regions or culture-zones.7 The Crusades set a pattern of cross-cultural military confrontation that would become the template for European colonization and imperialism in the next two great waves of globalization. As the law of nations evolved in the period of formation of early-Modern nation-States, the subject was traditionally divided into two branches—those rules governing nations in their peaceful relations and those norms used in warfare. Grotius’s famous tract, De jure belli ac pacis, first published in 1625, was organized in this fashion, as were many of the writings of contemporary publicists.8 The laws of war, the ius in bello, were a significant aspect of late medieval, Renaissance, Reformation, and early-modern State relations. Chivalry and restraint gradually gave way to the horrors of “modern” conflict, featuring total warfare, the involvement of large civilian populations, and the emergence of new, and ever deadlier, means of killing. In Europe, at least, this transformation of limited conflict into total war reached its apogee during what was called the Thirty Years War (1618–1648 CE), a bloody religious conflict that engulfed nearly the entirety of Western and Central Europe and killed nearly a third of the population of what is today Germany.9 The Thirty Years War deflected European attentions from colonial expansion and globalization for much of the seventeenth century, and had a significant impact on changes of attitudes toward the laws of war. Although notions of just war were largely forgotten or jettisoned by Europeans even before the age of exploration, there was a renewed sense by many European nations of the need to restore principles and values associated with limited warfare. One such area of success was in the regulation of many aspects of naval conflict. Given the trans-marine scope of many European empires (particularly those of Spain, Portugal, France, Holland, and Britain), and the levels of contact they had with non-European polities (see the previous chapters), this was an incredibly significant move in the evolution of world law. Beginning in the eighteenth and nineteenth centuries, international law developed an elaborate set of rules regarding the conduct of naval warfare, and, particularly, the conditions under which the vessels of enemy or neutral

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nations could be subject to capture, or what was known as “prize.” The law of naval captures was administered by the prize courts of maritime Powers (such as Britain, France, and Holland) and was extraordinarily uniform and consistent in application. These prize courts applied virtually the same rules in determining the enemy character of ships and cargoes found at sea during hostilities, the status of certain kinds of products as contraband (and thus subject to seizure), and the circumstances in which a blockade could be effectively enforced against an enemy coastline.10 The body of prize law jurisprudence was staggeringly large, and exceedingly well documented in the admiralty decisions of all maritime Powers (including that of the fledgling United States). One of the leading figures in the creation of this body of world law was Sir William Scott (later Lord Stowell) who was the judge of the British High Court of Admiralty for nearly a thirty-year period corresponding with Britain’s fight against France (and its allies, including the United States) in the Wars of the French Revolution and the Napoleonic campaigns (1789–1815 CE). Like the earlier Seven Years War, this was a period of global conflict with theaters of conflict in Europe, the Americas, Africa, India, and the East Indies. Scott’s jurisprudence on such issues as what defined a neutral ship and cargo, the proper conduct of naval blockaders and captors, the humane treatment of noncombatants, and other legal aspects of naval warfare was widely followed, even by the admiralty courts of countries that were at war with Britain (such as the U.S. Supreme Court, then led by Chief Justice John Marshall). Judge Scott thus managed to fashion an international common law of naval prize that borrowed from the practices, rules, and customs of all naval Powers (not just Britain), and managed to produce a lawful and humane set of principles that ameliorated the worst aspects and features of naval conflict at that time.11 In addition to customary law sources, the norms of naval captures of neutral ships and cargoes were the subject of the first modern treaty on the laws of war, the 1856 Paris Declaration. In contrast to naval warfare, little effort had been made to systematize or codify rules of combat on land. The first such effort was the 1863 Code of Francis Lieber, an advisor to the Union Armies during the Civil War.12 That document galvanized subsequent international negotiations to develop a treaty for the laws of war on land, first at Brussels in 1874 and then at the First Hague Peace Conference, held in 1899. The Hague Peace Conference was the first major multilateral meeting devoted to a broad range of international issues. Convened by Tsar Nicholas II in order to advance his agenda of global disarmament and demilitarization (especially for Russia’s rivals, Germany and Japan), the conference also created new dispute-settlement institutions and codification of the laws of war.13 The result of the 1899 Hague Peace Conference was a package of no less than six instruments on the ius in bello. Some of these treaties were dedicated to abolishing the use of certain forms of dangerous weapons (such as expanding bullets or poison gases), of certain means of warfare (such as dropping bombs from balloons). In addition, the delegates were able to

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conclude a general codification of the Laws and Customs of War on Land. The 1899 meeting was so successful that the delegates enthusiastically endorsed a follow-up session in 1907, the Second Hague Peace Conference. Many more delegates, representing most of the nations in the world at that time, attended. This meeting adopted even more agreements, some of which reiterated in form and substance the 1899 Conference’s achievements. In addition, some arms control conventions were concluded (on the use of automatic submarine contact mines and naval bombardments) and also full codifications on land and naval warfare (as well as specific treaties on neutrality and the formalities for the opening of hostilities).14 The combined work-product of the 1899 and 1907 Hague Peace Conferences on the laws of war is known simply as the “Hague Law.” The primary thrust of this body of conventional law was to regularize expectations by belligerent States as to how their enemies would conduct hostilities, treat prisoners of war (PoWs), and hospital facilities, and also to build confidence that certain kinds of weapons or tactics would not be employed in wartime. The critical underlying principles of the Hague Law were that unnecessary suffering and indiscriminate killing would be avoided in military conflicts (achieved through the abolition of certain kinds of munitions and delivery-systems), and, moreover, that military necessity was the benchmark for determining the proper restraints on hostilities. Lastly, and most importantly, the delegates at the Hague Peace Conferences recognized that the laws of war were just at the beginning of a process of codification and clarification, and that customary international law norms remained significant. Included in each of the Hague treaties was the Martens Clause (named after the Russian international lawyer who proposed it), incorporating customary norms into the treaty regimes.15 The treaties negotiated at the Hague Peace Conferences were widely ratified, but as for whether they were successful in controlling the worst excesses of war, one simple, ironic fact can be noted. The Third Hague Peace Conference had been scheduled for the year 1915, but had to be canceled owing to the outbreak of World War I. In many respects, World War I was the bloodiest conflict in human history (military casualties exceeded those even in World War II). The war featured wholesale slaughters on the battlefield, indiscriminate sinkings of ships by submarines, and even the use of chemical weapons. On the basis of this evidence, the treaties concluded at the Hague Peace Conferences cannot be regarded as a complete success. One legacy of the Hague Law, following the Nuremberg trials at the conclusion of World War II (for more on which see chapter 5), was a very different emphasis in the laws of war for protection of civilians, PoWs, and other individuals who are noncombatants (hors de combat). After the total conflict of World War II—where civilian populations were targeted for destruction (if not annihilation) by belligerent forces and were particularly vulnerable to air bombardment, occupation, and enslavement—efforts began to negotiate a new approach for the laws of war. Led by the International Committee of the Red Cross (ICRC), a Swiss nongovernmental organization (NGO) that had been

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earlier recognized as the principal agency for the protection of noncombatants in wartime, the 1949 Geneva Conventions for the Protection of War Victims were negotiated. The four agreements included instruments on wounded and sick soldiers in the field, wounded, sick, and shipwrecked sailors at sea, PoWs, and civilians. The four conventions contained a series of common articles (including a form of Martens Clause on custom), as well as very detailed rules and protections for the different classes of noncombatants.16 Together the Geneva Conventions are known as the “Geneva Law,” or, more descriptively, international humanitarian law. Although the Geneva Conventions have been widely ratified (and the United States is a party to all four), serious concerns have arisen as to their application in certain kinds of situations (as with the detainees of suspected terrorists in Afghanistan, Iraq, and at Guantánamo Bay). For example, it has remained unclear whether the protections of the Geneva Conventions applied only to individuals involved in international conflicts, as opposed to civil wars. In reality, civilians tend to be brutalized more in internal conflicts. Common Article 3 of the Geneva Conventions attempted to extend the reach of the treaties to civil wars, and this was later acknowledged by the International Court of Justice (ICJ) in the Nicaragua Case.17 In a further development in 1977, two Additional Protocols were negotiated for the Geneva Conventions, and they applied its protections to most internal conflicts and wars of national liberation (although not to situations of “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence”).18 Efforts by global civil society to control and manage aspects of international conflict have become a central feature of international discourse today. Non-State actors and NGOs banded together to lobby for the outlaw of the use of antipersonnel landmines, culminating in a 1997 treaty to that effect. Even more astonishingly, there have been attempts to ban the employment of the ultimate weapon of mass destruction (WMD): nuclear arms. In a 1996 advisory opinion, the ICJ concluded that threats or uses of nuclear weapons were governed by the same background rules for control of international conflict as any other use of force. But, when asked to opine as to whether nuclear weapons could be used under any circumstances (even in legitimate self-defense), the court deadlocked. In a split decision (the court’s president casting the deciding vote), the ICJ ruled that while the threat or use of nuclear weapons would generally be contrary to the rules of international armed conflict, . . . in view of the current state of international law . . . the Court cannot conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

Thus, in one of the most controversial opinions ever asked of it, the World Court essentially declared a non-liquet, a deliberate gap in the substance of international law.19

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This result was emblematic of much of the evolution of world law for the management of conflict. Although such initiatives have often been associated with periods of intense political globalization, there have been profound limitations on the effectiveness of these efforts to control recourse to conflict or to ameliorate the worst aspects of human suffering associated with warfare. Nevertheless, it has been a singular feature of international relations that for many epochs of human history war has been made the subject of legal controls. This is particularly ironic because warfare has often triggered (along with global pandemics and economic depressions) a series of deglobalizing trends: the interruption of communications and commerce between peoples; the replacement of atavistic nationalistic and patriotic objectives in preference to cosmopolitan virtues; and the degradation of values of universalism and human dignity. These will all be considered in the remaining chapters of this part.

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4

Commerce

F

or millennia, commerce has been the solvent of sovereignty. Throughout all epochs of globalization—including classical antiquity, the age of exploration, the period of imperialism, and today’s contemporary developments— international trade and all of its attendant phenomena and consequences have been signal contributors to the processes of political, social, and cultural change around the world. Indeed, we tend to regard globalization as, first and foremost, a set of economic processes that bind international actors (States, individuals, corporations, and other polities) together in a web of mutual interdependence. The reality, as we have explored in earlier chapters, is that globalization has other aspects as well, but it seems appropriate now to turn to its legal and institutional features that are primarily focused on facilitating economic interactions between peoples of different nations, cultures, and traditions.1 Commerce is subversive of established State and political orders precisely because it allows for the free communication and transport of people, goods, services, and information across recognized national boundaries and cultural zones of influence. Throughout much of human history, the peoples of radically different cultures, ethnicities, religious traditions, and imperial regimes have nonetheless sought to trade with each other and to prosper from the consequent economic benefits that accrue from such economic interactions. Even in early history, trade tended to raise incomes and qualities of life for its participants, to increase and spread wealth. This is not to say, of course, that trade and international commerce was ever immune from State regulation. It was often the subject of extensive restrictions, typically in the service of State treasuries and fiscal apparatus, and, in extreme situations (as occurred in China and Japan after their first experiences with aggressive European commercialism in the sixteenth and seventeenth centuries CE) could be banned altogether. But, if anything has been demonstrated during the many periods of globalization, those polities that cut themselves off from international trade were often left behind as the forces of globalization marched on. What is also significant about the evolution of world law in the areas of economic globalization and international trade was the extent to which these aspects of international law were fashioned not by States or political actors,

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but, rather, by the merchants and traders who actually participated in these forms of transnational relationships. This pattern was first set in classical antiquity. In the Mediterranean littoral, ocean merchants developed (around 500 BCE) the first codified set of rules for international trade. Known as the Rhodian Sea Law (named for the merchants on the Greek isle of Rhodes), it covered virtually all aspects of trade over water and was adopted by the Phoenecians, Egyptians, Greeks, Carthaginians, and (later) the Romans. It was expressly adopted in the Emperor Justinian’s Digest of Roman laws and juristic writings, issued in 533 CE. It was so influential that during the Middle Ages it remained the essential source of the lex maritima in the Western world, adopted within the successor kingdoms of the Roman and Byzantine empires as well as by Moslem traders who flourished in the Mediterranean and Middle East after the rise of Islam in the seventh and eighth centuries CE.2 The development of a world law for commerce seemed to thrive precisely at times when there was no assertion of imperial power or aggrandizement by a hegemon. One example of this would be the medieval European ius commune. The ius commune was, in many senses, Roman law’s legacy to medieval Europe. With the rediscovery of Roman legal thought (especially the corpus of Justinian’s Digest) at the emerging centers of learning at Bologna, Padua, Paris, Oxford, and Cambridge in the eleventh and twelfth centuries, Roman law began to imprint itself on the various national laws of the time.3 Especially when Roman law was amalgamated with elements of the canon law of the Roman Catholic Church, the ius commune came to exert an extraordinary influence over those aspects of domestic legal systems that inherently had transnational elements, especially mercantile and commercial practices, the laws of war and chivalry, and to a lesser degree, the more localized customs of feudal and manorial law.4 The emergence of a common commercial law in medieval Europe can also trace its lineage back to the ancient models of ius gentium.5 The maritime elements of such commercial law was premised on such codes as the Rolls of Oléron, the Consolato del Mare, and the Visby and Amalfi Tables, and were all in pedigree with the Rhodian Sea Law. Admiralty practices in the Middle Ages were obviously driven by the needs of a community of sea merchants that depended on a body of consistent rules, universally recognized and enforced. Likewise, land-based commerce—especially in regularly held trade fairs— depended on these principles of universal rules, predictable results, orderly enforcement, and transparent procedures. It was thus no accident that England’s Magna Carta of 1215 provided that “All merchants shall have safe conduct to go and come out of England by land and water for purposes of buying and selling, free of legal tolls, in accordance with ancient and just customs.”6 Centuries later, English Chancery Courts (which, along with Courts of Admiralty, were the most likely to apply a ius commune) would recognize a universal lex mercatoria.7 Italian cities (especially Genoa, Pisa, and Milan) came to adopt commercial codes in the early Middle Ages.8 Specialized commercial courts were inaugurated by

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medieval monarchs and princes, and they were deliberately structured to be insulated from the provincialism or biases of local tribunals applying local law, by allowing appointed panels of merchants to decide cases among themselves. These courts were also intended to offer speedy and efficient justice, an innovation that was derived from the summary procedures of canon law tribunals.9 The universality of the law merchant was not only a benefit to individual traders and financiers, but also to national economies. Just as the ius gentium had a public international law aspect, so did the lex mercatoria, to the extent that medieval polities concluded most-favored-nation (MFN) agreements. The development of a European common law of commerce revolutionized the process of reducing transaction costs for exchanges across borders, extending large amounts of credit and finance, and developing the instruments and structures for business enterprises.10 All in all, these initiatives made possible the rise of a commercial middle class in late medieval Europe, the economic revolutions of the Renaissance and early-Modern period, and, indeed, laid the groundwork for the Industrial Revolution and today’s global economy. Medieval Europe’s ius commune, especially in its manifestation as a transnational system of commercial law through the law merchant and lex maritima, illustrates the possibilities of a nonhierarchal, but still coherent and universal system of international law. Unlike the hegemony of Rome’s ius gentium, there was no dominant domestic legal system at work with the ius commune. Through an extraordinary process of legal transplantation (to use Alan Watson’s concept11), or, at a minimum, a parallel evolution in disparate legal systems,12 Roman law concepts managed to merge with a functional necessity of universality in many material realms of medieval life, including commerce, martial law, and feudal relations—areas combining both private and public aspects. The development of the ius commune was a watershed event in historical jurisprudence.13 During the first age of exploration, the evolution of a world law for commerce continued at an increasing tempo. As already considered in chapter 2, competition between the great maritime and commercial empires of Spain, Portugal, France, Holland, and Britain led to a bitter debate over the opening of the oceans to freedom of navigation and trade. The vindication of the principle of mare liberum would set an important legal precedent for the next 400 years, and would make possible a set of globalizing trends that would create a truly global economy starting in the seventeenth century CE. Gold and silver was mined in the Americas, and fiscally supported European economies (often with the effect of causing ruinous inflation) for centuries. The East Indies and China produced a dazzling array of consumer goods (spices, ceramics, and fabrics) that were popular throughout the world. Cash crops (such as indigo, cotton, and tobacco) were staples of the New World plantation economies, supported by the forced enslavement and transportation of Africans.14 The truly global reach of trade, achieved in this period, demanded increased sophistication in the ways and means of commerce. This, in turn,

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required that the world law of international commercial transactions evolve in ways that promoted the efficiency and security of business arrangements that could span oceans, involve dozens of parties, and encumber large amounts of financing. One aspect of this evolution was the increased employment of commercial courts, offering speedy justice and applying a standardized set of rules for business transactions without regard to the national identity of the parties. In Britain, the High Court of Admiralty (mentioned in the last chapter) as well as common law courts were available, and similar institutions existed in Holland, in France, and in the United States. Sir William Blackstone, in his famous Commentaries on the Laws of England, first published in 1769, devoted a good bit of attention to what he called the ius gentium. But his conception of that term was somewhat different from that embraced by the Romans and by the medieval ius commune. Blackstone essentially saw the ius gentium as the embodiment of the new lex maritima and law merchant, a body of law to be uniformly applied by all commercial courts in the world.15 Another significant development for the creation of a world commercial law was the fashioning of rules governing the financing of trade, the documents necessary to effectuate those deals, and the security that came with insuring those transactions against unexpected hazards. Thus was born an extensive body of law dealing with letters of credit (the financing instrument for many transactions, even today), of bills of lading (which documented an international shipment of cargo), and of marine insurance (which protected it against risk). In addition, in the realm of maritime commerce there grew up rules for the mortgaging of ships (in order to effectuate repairs or secure necessary supplies), the treatment and payment of mariners, and the security and bonding of vessels and their masters. In order for international commerce to operate effectively, there had to be a high degree of trust between the participants, even if they resided in various countries, spoke unfamiliar languages, professed incompatible religious beliefs, or were subject to divergent domestic laws and regulations. The common law of commerce provided that necessary level of predictability.16 This second major epoch of globalization brought about one other major development for a world law of commerce: the rise of the transnational corporation. Beginning with the East India Companies of Britain and Holland, business enterprises began to organize themselves in a way which allowed them to operate and compete around the globe. This dynamic was aided with the creation of what was known as the limited liability corporation, an entity that was financed by the subscriptions of investors (shareholders), whose exposure to liability was limited to the extent of their investment, but who delegated the operations of the company to experienced businessmen (management). This model offered flexibility in the financing of business operations (which had previously tended to be operated as partnerships or by extensive governmental subsidies), opened-up economic opportunities to new middle classes in many countries, and allowed for the quick expansion of operations overseas. Of course, the very flexibility and versatility of the

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limited liability company in the deployment of global capital could cause its own set of problems. Economic downturns, financial panics, investor unrest, speculative transactions, and business scandals and misdeeds—which hitherto had been limited in impact to one commercial center or country—could now affect the entire globe.17 These aspects of global commercial law—the harmonization of transnational business practices and customs, the rise of the limited liability corporation, and the global deployment of capital—were signal features of the third great epoch of globalization, the age of imperialism, which subsisted from about the mid-nineteenth century to the outbreak of World War I in 1914. What was significant about this period of human history was the extent to which investment and capital flows impelled transnational events. The traditional maritime and colonial empires of Europe (France and Britain) were joined by new imperial polities, most notably Germany. Russia’s transcontinental empire was completed with economic inroads into central Asia and the far East. Lastly, this period saw the emergence of two new powers: Japan and the United States. The Spanish-American War (1898) and RussoJapanese War (1904–1905) saw the displacement of older imperial structures with a new, aggressive form of the projection of economic power. The European monopoly over the acquisition of colonies, the creation of regional economic and trading zones, and the use of investment as an instrument of imperial coercion was a critical event in the evolution of both the political and economic aspects of globalization.18 Disputes over investments and capital flows to host countries (usually in the developing world) quickly acquired a diplomatic, political, and (even) military dimension that have come to characterize many aspects of globalization, not only for the age of imperialism but also for our contemporary period of globalism. In the late 1800s and early 1900s, European, American, and Japanese investments and economic penetrations (whether in Central and South America, Africa, the Middle East, or Asia) were often enforced by military might. So, when in the 1870s and 1880s the Government of Egypt defaulted on loan obligations, Britain quickly retaliated by taking effective control of the country, including the Suez Canal (what would later become a strategic waterway). Essentially the same dynamic occurred with the United States in Panama. When Venezuela, in the early 1900s foreswore debts to a variety of European investors, and began expropriating foreign property, it resulted in an actual military intervention in the country. Indeed, this period saw a variety of muscular assertions of economic imperialism (often called “gunboat diplomacy”), leading to situations where those parts of the world that were not under colonial control by metropoles (such as Latin America and China) were nonetheless subjected to substantial economic pressures to open their economies to foreign trade, investment, and dominance.19 Developing a consistent set of rules for investor protection and free flows of capital has been a key project for globalization in the past century. This body of law—known as State Responsibility for injury to aliens—is beset by a fundamental contradiction. It is a paradox that has challenged the

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legitimacy of this area of international law and greatly hampered its evolution. An individual who lives in a foreign country is expected to abide by the laws of the host State, yet, when that person is injured by the host government, she is free to seek diplomatic protection from her State of nationality. Foreigners thus appear to have the “best of both worlds.” They expect to travel and conduct business in other countries on conditions of equality, but when adverse events occur, they are free to seek their own nation’s protection. This sense of unfair advantage to persons living in another country is why the international law of State Responsibility has been criticized as an instrument of coercion in the hands of nations engaging in new forms of economic imperialism.20 Central to this debate are two competing visions of how a nation should treat foreigners living in its midst. One view is that a host government should, within recognized limits, treat aliens in the same way as it would treat its own nationals. This is the principle of equality. The other view is that there is an international minimum standard of treatment, a threshold below which no “civilized” nation should drop. These two ideals have collided in spectacular fashion. Consider the simple, if sad, case of Harry Roberts. Roberts was a U.S. citizen who was arrested in Mexico in the 1920s on charges of armed robbery. He was thrown into a Mexican jail for eighteen months awaiting trial. Roberts was confined in a small cell with approximately thirty-five other prisoners. The United States argued before a special claims commission, established to resolve disputes with Mexico, that the conditions of Roberts’ incarceration violated Mexico’s international responsibilities. Mexico rejoined that Roberts was entitled to the treatment afforded Mexican nationals; Mexican jails were overcrowded, but Roberts had not been singled-out for bad treatment. The General Claims Commission rejected this argument, holding that Mexico had violated the international law of State Responsibility. Roberts’ treatment was depressingly substandard and the commission articulated a universal test of “whether aliens are treated in accordance with ordinary standards of civilization.”21 In another example, involving U.S.-Mexican economic relations in the 1930s, the United States protested Mexico’s nationalization of privately owned farmland, including tracts owned by Americans. In the famous Hull-Hay diplomatic correspondence, the Mexican foreign minister defended the expropriations on the theory that the government takings affected Mexican nationals and foreigners equally. There was no illegal discrimination. Moreover, Minister Hay wrote that “the foreigner who voluntarily moves to a country which is not his own, in search of a personal benefit, accepts in advance, together with the advantages he is going to enjoy, the risks to which he may find himself exposed. It would be unjust that he should aspire to a privileged position.”22 Secretary of State Cordell Hull responded, however, that U.S. citizens were still entitled to prompt, adequate, and effective compensation for their confiscated property, even if Mexican nationals were not so permitted. The dialectic between parity for

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foreigners and international minimum standards has yet to be resolved, and of late it has been transformed into a more subtle polemic about the relevant and appropriate sources for the international law of State Responsibility. One can read the decisions of international claims tribunals that date back as far as the 1790s (the Jay Treaty, concluded between the United States and Britain after the American Revolution, provided for two such claims commissions). Typically, international claims tribunals were instituted in conditions of political, military, and economic inequality. Latin American nations (Mexico and Venezuela particularly) were often required to submit disputes with foreign residents to such tribunals. Taken together, this compendium of case law evolved by 1950 into a fairly comprehensive body of customary international law on diplomatic protection for aliens. It was precisely because of the long association of State Responsibility law with colonial and imperial politics that it came under withering attack during the period of decolonization in the 1950s, 1960s, and 1970s. Newly independent former colonies asserted that the then-existing customary international law of State Responsibility was not of their making, and they assertively bid to change it. The primary vehicle chosen for this transformation was a series of UN General Assembly (UNGA) resolutions. These were collectively known as the New International Economic Order (NIEO) and were an attempt at remaking the landscape of international economic relationships and their legal bases. The 1973 UN Declaration on Permanent Sovereignty over Natural Resources and the 1974 Charter on Economic Rights and Duties of States were drafted in order to propound new rules of customary international law. The key features of these resolutions were provisions allowing the expropriating State to establish the “appropriate” compensation to be paid and also (in case of a challenge by the foreign owner of the property) to have the disputes resolved only in domestic courts. Needless to say, these alterations to the prevailing customary international law rules were opposed by economically developed, capital-exporting nations.23 The NIEO initiative coincided with a time of rising commodity prices and wholesale expropriations of foreign businesses in the developing world (particularly in such extractive industries as mining and petroleum products). The pendulum, however, was bound to swing again, and, by the 1980s, commodity prices collapsed, and developing nations in South America, Africa, and Asia were once again hungering for foreign investment. Having been once “burned” by host government expropriations of foreign properties, capitalexporting nations insisted on placing the law of State Responsibility toward aliens on a firmer footing. Since that time, capital-exporting countries have negotiated bilateral Friendship, Commerce, and Navigation (FCN) treaties with developing States, including specific provisions on the rights of foreign nationals to live and work in those countries. In addition, a new form of international agreement, Bilateral Investment Treaties (BITs), have been created to address very particular issues of investment protection, including detailed

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rules for compensation in the event of expropriation or nationalization, as well as valuation of certain kinds of business assets (most notably, intellectual properties).24 Instruments like FCNs and BITs have, to some degree, supplemented the traditional customary international law of protection of foreigners. They certainly have swept aside any contention that the NIEO-era resolutions of the General Assembly are a valid statement of the relevant international law rules on this subject. Curiously, attempts to fashion a multilateral treaty on State Responsibility in general, and protection of foreign investment in particular, have had prodigious difficulties. The UN International Law Commission (ILC) articles on State Responsibility were finally adopted after forty years of effort, but only partially address these questions. An effort to create a Multilateral Agreement on Investment (MAI) was a spectacular failure, the negotiation disintegrating in diplomatic rancor and public outrage.25 The struggle to manage and tame the flows of global capital and investment will remain a central feature of the legal aspects of world law for decades to come. It is important to realize that these contemporary issues are part of an historical pattern of developments that can trace its lineage back to classical antiquity, and certainly has its direct roots in earlier epochs of globalization. International commercial law has had a quite decisive role in fashioning many features of today’s globalization that we have come to take for granted: the almost frictionless movement of products, services, and capital across borders, and the goal of even greater liberalization of economic potentials. These will be considered in subsequent passages in this book’s second part (especially chapters 7, 9, and 11). It would be a mistake, however, to view the ongoing processes of economic globalization as an unalloyed public good, a progress narrative with no adverse consequences for the human condition. The story of international life has witnessed many extraordinary periods of deglobalizing trends that can largely be attributed to economic factors (the Great Depression of the 1930s is certainly one of these), as well as the prevalence of conflict and imperial ambition. So it is important to consider the central role of human dignity and universalist ideals in the historical contours of globalization. That is the goal of the two next chapters.

5

Dignity

T

he search for the place of human dignity in world law has been a dynamic process, as was previously considered in the context of the role of belief systems in the transmission of globalizing values. While this may have been a relatively remote consideration for classical antiquity (with the exception of attempts to ameliorate the horrors of war, as discussed in chapter 3), it was certainly a matter that was discussed and considered in the second epoch of globalization, the age of exploration of the fifteenth to eighteenth centuries CE. Indeed, one of the great developments vindicating human decency and the rule of law occurred at the end of that period with the abolition of the slave trade. It is ironic that the great legal campaign (led by English human rights advocates, such as William Wilberforce (1759–1833)) to end the slave trade began in a very inauspicious way. As discussed in chapter 2, the collision between positivist and naturalist approaches to international law came in the early 1800s and was waged over exactly this issue. The practical problem for international lawyers of that time was whether a small group of States (Great Britain and the United States) could unilaterally seek to suppress the international traffic in slaves. That question turned on whether the slave trade violated international law. For those who believed in natural law principles—that State conduct was subordinated to moral values—then the answer was easy: slavery was an abomination. Indeed, a handful of judges so ruled. Justice Joseph Story of the U.S. Supreme Court, in his 1822 decision in La Jeune Eugénie, observed that it may be unequivocally affirmed, that every doctrine, that may be fairly deduced by correct reasoning from the rights and duties of nations, and the nature of moral obligation, may theoretically be said to exist in the law of nations; and unless it be relaxed or waived by the consent of nations, which may be evidenced by their general practice and customs, it may be enforced by a court of justice, whenever it arises in judgment. And I may go farther and say, that no practice whatsoever can obliterate the fundamental distinction between right and wrong, and that every nation is at liberty to apply to another the correct principle, whenever both nations by their public acts recede from such practice, and admits the injustice or cruelty of it.1

Under Story’s reasoning, States and other international actors (including the slave traders at issue in that case) were subject to a natural overlaw, unless there had been some manifest repudiation by contrary State practice.

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For positivists, who embraced State sovereignty and the necessity of ascertaining State consent for new rules of international conduct, the issue was more difficult. Ultimately, in a series of cases decided by English and U.S. courts, the positivist view prevailed that slavery and the slave trade could only be suppressed if States explicitly agreed that their nationals could not legally engage in it. As Chief Justice John Marshall wrote in 1825, in a pointed riposte to his friend and colleague, Joseph Story: The Christian and civilized nations of the world with whom we have most intercourse, have all been engaged in it [the slave trade]. However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern times by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully interrupt. It has claimed all the sanction which could be derived from long usage, and general acquiescence.2

Indeed, Marshall had earlier observed: This argument [advancing a particular rule of international custom] must assume for its basis the position that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power. This position is not allowed. This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.3

Decisions such as this—and the U.S. Supreme Court’s decision was replicated in this period by the English High Court of Admiralty4 —sounded the death-knell for the effective application of natural law principles to derive concrete international legal rules. So international law proceeded to validate the values of human dignity by positive means, leading to world law’s first achievement of a humanitarian goal. This was the legalized suppression of slavery and the slave trade by the 1850s. This would not have been possible without international law having first made subtle doctrinal changes in the law of the sea and high seas freedoms (as discussed in chapters 2 and 4). The active suppression of piracy in the eighteenth century was certainly a significant precursor, although the prime objective of that initiative was the protection of colonial and mercantile systems of dominance, without interference by marauders. The British colonial and imperial apparatus—pursuing both enlightened self-interest and human rights objectives—used the power of the Royal Navy (later with the cooperation of French and U.S. maritime power) to effectively suppress the slave trade.5 The abolition of the slave trade illustrated some vitally important features of progressivism in international law. Many of the signal achievements in international law have been made at the behest of just one country, or a small

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group of countries, often (it seems) against the implacable opposition of the remainder of the international community. Great Britain’s campaign against the slave trade in the early 1800s, although partly impelled by domestic politics and a flexing of naval might, was certainly one of the most altruistic human rights initiatives of all time. As a great progressive leap forward, it was also accompanied by a jump in doctrinal sophistication for international law. Today’s notion of universal jurisdiction over certain human rights violations (discussed below) can trace its intellectual lineage to that period. Though as just mentioned, the unilateral application by English and American courts of universal jurisdiction over French and Spanish slavers was blocked by positivist scruples, the victory was consummated with treaty undertakings by all maritime States to suppress the slave trade.6 The abolition of the slave trade reflects a paradigmatic structure for all international law “revolutions.”7 Forceful leadership is taken by a handful of prominent States that care deeply about an issue and are prepared to stake much in bidding a new rule of international conduct. Then a significant advance is made in an international law doctrine, without which political and diplomatic change would be impossible. It may be that an old rule is swept aside, or, more typically, subtly altered to accommodate new conditions. Often this is accompanied by a significant addition of new values of international legal regulation or new structures and processes to support preexisting objectives. The last stage of the process is the move to consensus, a slow and inexorable change by international actors to recognize the new paradigm. The traditional attitude of international law was utterly indifferent as to how nations treated their own citizens. Under this view, so long as a government did not interfere with the rights of neighboring countries (or of foreign nationals living within its territory), it could abuse its citizens in any way it wanted and never run afoul of international law strictures. It was certainly in this sense that individuals were regarded as “mere” objects of international legal rules, the playthings of sovereign neglect (or worse).8 Examples of State practice indicating a contrary rule appeared in the late 1800s and typically arose in the context of European imperialism and colonialism. For example, the European “Great Powers” were much concerned with the manner in which the Ottoman Turkish Empire in the Balkans and Near East treated its Christian minority populations. Through a combination of diplomatic pressure, specific treaty provisions, and periodic military interventions, the Turks were compelled to moderate their internal policies toward these minority groups, including liberalization of rules that allowed these groups to maintain their ethnic and linguistic identity, as well as maintain a measure of political autonomy. In the same way, the European and American legal abolition of slavery and the slave trade affected the domestic practices of African and Middle Eastern polities.9 The first authentic human rights regime was established by the Treaty of Versailles, which ended World War I in 1919. Under the treaty, the boundaries of Europe were extensively redrawn and substantial minority populations were displaced or found themselves under unfamiliar sovereigns. For

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example, the re-creation of the State of Poland left millions of ethnic Germans residing in its territory. New States created in the Balkans (including Yugoslavia and Hungary) also had substantial populations of people who did not share linguistic or ethnic identity with the dominant group. At the same time, it was recognized that a government’s mistreatment of minorities could result in strife and be a potential cause for war.10 Needless to say, the minorities situation was a recipe for disaster. The solution adopted in the Treaty of Versailles, and then subsequently enforced by the League of Nations and the Permanent Court of International Justice (PCIJ), was a series of guarantees entered into by States in Central and Eastern Europe to protect the rights of minority groups resident in their countries. Poland, Lithuania, and Romania were particularly required to respect the rights of their German and Hungarian minority populations.11 In a broad sense, these agreements recognized and validated human rights, but only as exercised through groups and collectives. The rights guaranteed were those to educate minority children in special schools, or to continue to use the minority language, or to exercise special forms of political autonomy.12 Predictably, these were incredibly contentious issues during the Interwar years, as “majority” groups chafed at what were perceived to be special rights granted to economically affluent minorities. At the same time, Germany aggressively sought to protect the rights of its “diaspora” peoples. Nearly a third of all the litigation before the PCIJ between 1920 and 1939 involved some aspect of the protection of minority rights in Europe, with Germany suing Poland nearly a dozen times.13 Yet, despite the concern and involvement of the international community, the minorities issue was, of course, the ultimate ground cited by Nazi Germany for its invasion of Poland on September 1, 1939—the event that sparked World War II in Europe. As already discussed, World War II marked the ultimate transition of international law from a system dedicated to State sovereignty to one also devoted to the protection of human dignity. This new paradigm was recognized in the Charter of the United Nations, signed by the victorious Allied powers in 1945. For the first time, an international agreement linked human rights with world order. Charter Article 55(c) called for “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” The following article vested the United Nations (UN) with the power to “take joint and separate action” to accomplish that objective.14 This galvanized the entire body of international human rights law, as administered not only by UN bodies but also through regional organizations and other entities. This will be a major theme of the following parts of this volume (see especially chapters 8, 9, 11, and 14). World War II thus brought a real revolution in international law over the status of human dignity as a fundamental value of world order. One way this was achieved was through international legal doctrine. As already observed, before this time, individuals were regarded as the “objects” of international legal action, not as “subjects”—or holders—of international rights. This assertion was conclusively challenged by the International Court of Justice

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(ICJ) in a 1949 advisory opinion rather remarkably entitled, Reparation for Injuries Suffered in the Service of the United Nations.15 The “injuries” alluded to in the title of the opinion referred to one of the most extraordinary incidents in modern diplomatic history, and represented one of the gravest challenges to the fledgling institution of the UN (created in 1945). Just after World War II, the new United Nations Organization dispatched a well-respected Swedish diplomat, Count Folke Bernadotte, to mediate between Jewish and Arab groups in Palestine. But radicals on both sides did not want a negotiated settlement, and Jewish extremists assassinated Bernadotte as he was visiting the region in 1948.16 A threshold question for the World Court to consider was whether the UN even had legal standing to bring a claim for the assassination of one of its envoys. The ICJ was thus asked whether the UN had sufficient capacity to bring an international claim against Israel for Bernadotte’s death. Or, in other words, did the UN have “international legal personality”—was it a subject of international law? The answer from the ICJ was a resounding “yes.” In a key passage, the ICJ addressed the question of whether States were the only subjects of international law: The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to actions upon the international plane by certain entities which are not States.

With these words, in 1949, the ICJ declared an end to a conception of international law as merely a “law of nations,” in which States were the only actors or players. Nevertheless, if individuals have rights cognizable under world law, it follows that they also have duties. The key moment for the confirmation of this rule was at the Nuremberg trials of the top political and military leadership of the German Third Reich, held after the conclusion of World War II in 1945. This was not, despite popular belief, the first instance of trials of individuals charged with violations of the laws of war. Peter Hagenbach, a Burgundian knight was so tried in 1482, as was Captain Henry Wirtz, the notorious commandant of the Andersonville prison camp during the U.S. Civil War (and the only Confederate officer who was executed by the victorious Union). German submarine captains also had been prosecuted, but only lightly punished, at the Leipzig trials held after Germany’s defeat in World War I.17 The critical distinction of the Nuremberg trials was the legal order and regularity of the proceedings, something insisted upon by the victorious United States. A general indictment was issued by the Allied powers in 1942, known as the London Charter. The charter specified a number of particular international crimes subject to the jurisdiction of any subsequently created International Military Tribunal (IMT). The international offenses covered included crimes against peace (planning, preparation,

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initiation or waging a war of aggression), war crimes (violations of the laws or customs of war), and crimes against humanity (inhumane acts committed against any civilian population). After the complete victory of the Allies in Europe in 1944, specific indictments were handed-down for twenty-four of the top German government, Nazi Party, and military leadership. The trials were conducted before a bench consisting of judges from the United States, Britain, France, and the Soviet Union.18 The German defendants raised a number of substantive defenses to the charges, both at the Nuremberg trials themselves, as well as the subsequent prosecutions in the U.S.-occupied sector of Germany (these trials involved the financial, industrial, and judicial leadership of the Third Reich). The first such defense was the contention that every action taken by the defendants was an “act of State,” and the individuals were, therefore, immune under international law. The IMT made short work of this contention, as the London Charter had specifically provided that “The official position of the Defendants, whether as heads of State, or responsible officials in Government departments, shall not be considered as relieving them from responsibility, or mitigating punishment.” In short, the IMT vindicated the notion of individual responsibility under international law. Actually the most credible defense raised by the Nuremberg defendants concerned the ex post facto criminalization of one kind of conduct in international affairs. Recall that the London Charter specified the offense of “crimes against peace,” or the initiation of aggressive war. It was doubtful whether this had been regarded, either in treaties or customary international law, as an international crime that could be committed by individuals prior to 1939 (the outbreak of World War II in Europe). Those defendants indicted on that count raised the ex post facto (or nullum crimen sine lege) defense, but it was rejected by the IMT on the theory that there had been sufficient notice given to the German defendants that waging aggressive war would be punished. Indeed, U.S.-occupation courts in Germany ruled that international law might not even care whether particular conduct was previously recognized as criminal. Nevertheless, in the parallel set of trials that were held in Tokyo for the Japanese war crimes defendants, one of the judges dissented on this point.19 The Nuremberg and Tokyo war crimes trials have been criticized as “victor’s justice,” but they set an important precedent in demanding individual responsibility for violations of international norms. The trials were followed by the conclusion of the 1948 Genocide Convention, specifying the crime of targeting and destroying particular populations based on their ethnicity or religion, as the Nazis had done in the Holocaust. Elaboration of the Nuremberg precedent was also provided in Israel’s prosecution of Adolf Eichmann, one of the architects of Hitler’s Final Solution.20 Later attempts at defining the international crime of aggression, or of compiling a complete Code of Crimes Against the Peace and Security of Mankind, were less successful, although as will be considered later (in chapter 10) the recent creation of an International Criminal Court (ICC) is a significant move in elevating human rights and dignity to the center of values for world law.

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That leaves one last major contemporary development to be noted in the context of a new world legal order of human dignity. This has been the linking of issues of human rights with the demand for economic growth and stability, especially in the developing world. This is not just the matter of “first generation” human rights (such as civil and political rights) giving way to a “second generation” of economic, social, and cultural rights that reflect a set of entitlements that persons might expect of their government or of international civil society at large. Putting aside the practicality of enforcing such rights as a matter of international law, there is also the question of how this connects with other features of globalization, particularly the role of commerce, investment, and capital in the processes of global development. What came to be known as the “Washington Consensus” (a term coined by economist John Williamson) has become the lightning rod of criticism for much that has been faulted with contemporary globalization and its impacts on the developing world. Enforced by Washington-based institutions (the World Bank, International Monetary Fund [IMF], and U.S. fiscal and aid agencies), the “consensus” was supposedly made in regards to a package of ten economic policy prescriptions intended to induce fiscal stability and discipline, and to promote growth, in the developing world. As construed more broadly, the Washington Consensus has been associated with neoliberal and aggressively market-based solutions to development, which have tended to place it at odds with certain aspects of both civil and political rights (insofar as regimes that can enforce such discipline are inclined to be authoritarian) and economic and social rights (inasmuch as these entitlements tend to be derogated in the rush to privatize economic institutions and activities within the host State). In addition, as was suggested in the previous chapter, Washington Consensus policies also are bound to promote external investment as the engine for economic growth, leading to charges that we are simply entering a new era of economic imperialism by the developed North over the developing South.21 Whatever the merits or problems of Washington Consensus policies—and these will be considered throughout this book—they have become a central counterpoint to the tropes of dignity and rights in modern discourse about the human dimensions of globalization. And, in this sense, we see a combination of the themes already mentioned in this part of the book. Imperial ambitions (although today cloaked in the mantle of the projection of economic power) merge with a set of core beliefs about the nature of humanity and world order, which then have strong components of commercial interest and human rights aspirations embedded within them. The legal dimensions of globalization not only have historic durability—many of these same conflicts have been played out over centuries—but also have a multivalent character in which many strands of argumentation and discourse are woven together into a single skein of a vision of world order.

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6

Univers alism

From the foregoing, it should be apparent that globalization, even in the

context we understand it today, is hardly a novel phenomenon or new concept. The current manifestations of globalism might be unique or singular (and the legal aspects of these will be considered in depth in the next part of the book), but human societies have previously encountered globalizing trends and have responded to them through mechanisms of legal order. It is also important to recognize that globalization is not always a narrative about progress. Not only are many elements of globalization deeply problematic, but also throughout the long currents of human history there have been as many (if not more) episodes of deglobalization as there have been of advancement in international integration. This final chapter of this part explores the international legal bases of universalism in world order, and the countervailing trends and cycles of deglobalization. Reverses and disintegrations in globalizing trends occur for a number of reasons. In the distant past, this was largely the product of the breakdowns of existing imperial or hegemonic orders. The first era of globalization during classical antiquity was brought to an end by the successive conclusions of the Mauryan Empire in India in the second century BCE, the Han dynasty in China in the third century CE, and the Western Roman Empire in the fifth century CE. The early medieval period (c. 500–1200 CE), colloquially called the “Dark Ages,” did see the extraordinary rise of Islam as a globalizing force in the Near East and littoral Mediterranean, but, generally speaking, the tempo of the key metrics of globalization—the movement of peoples, the volume of international trade, the transmission of ideas, cultures, and beliefs—was vastly reduced in this period.1 And in the following 300 years (the later middle ages and early Renaissance in Europe) saw further deglobalizing events brought about by pestilence (including the Black Death) and the Mongol invasions. Nevertheless, certain indicators of globalizing activity (especially in South Asia, China, and the indigenous empires of the Americas) were accelerating, so that there was a spectacular confluence of events with Europe’s age of exploration, beginning around 1450 CE. It is clear that the first two great epochs of globalization were separated by nearly a thousand years. If the demise of empires is one catalyst for deglobalization, so, too, are interruptions in international communications. Some periods of human history

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have been punctuated by pandemics. Indeed, the ready transmission of human pathogenic diseases around the planet is often a negative feature of globalization (as will be further considered in chapter 7). The bubonic plague (of which there were serious global outbreaks in 430 BCE, 540–588 CE, 1347–1351 CE, and most recently in 1855–1889 CE) was often transmitted through shipping and trade routes. The pandemic influenza of 1918–1920 (often called the Spanish Flu), called the “greatest medical holocaust in history” with estimates of mortality upward to 50 million people worldwide, was facilitated in its lethality by populations mobilized and then weakened by global conflict.2 There is one other major cause of deglobalization, and that is a relatively modern phenomenon: cyclical downturns in the global economy. What was called the “Long Depression” of 1873–1896, which was initiated by a global cascade of financial market panics, was contemporary with the Second Industrial Revolution. It had notable impacts in Western Europe and North America, but this is in part because reliable data from the period is most readily available in those parts of the world. Great Britain was considered to have been the hardest hit by the Long Depression, and during this period it lost much of its large industrial lead over the economies of continental Europe. The Long Depression is usually believed to have ended by 1897, and the global economy grew at an impressive rate from that year to the start of World War I. The Long Depression was notable because it occurred in the middle of the third great epoch of globalization, and had the effect of slowing some globalization trends during that period.3 There is also a marked gap between the last phase of globalization (the age of imperialism, which ended in 1914) and today’s contemporary developments (which commenced in the 1980s). The Spanish influenza pandemic bookended the beginning of this period, but the Great Depression of the 1930s was probably the most significant event of this era. Affecting virtually every national economy on earth (with the possible exception of the Soviet Union, founded in the Bolshevik Revolution of 1917, and which was largely isolated from many international trade and market trends), the Great Depression transformed the landscape of global integration. It had devastating effects in both the industrialized countries and those that exported raw materials. International trade declined sharply, as did personal incomes, tax revenues, prices, and profits. Cities all around the world were hit hard, especially those dependent on heavy industry. Construction and industry were virtually halted in many countries. Farming and rural areas suffered as crop prices fell by 40–60 percent. Mining and logging areas felt perhaps the most striking blow because the demand fell sharply and there were few employment alternatives.4 The majority of countries responded to the Great Depression by establishing relief programs and structural reforms, and continuing the pace of trade protectionism and isolationism (which, ironically enough, was one of the causes of the downturn in the first place). Most countries underwent some sort of political upheaval, pushing them to political extremes (whether to the Left or Right). Liberal democracy was weakened and on the defensive, as dictators such as Adolf Hitler, Joseph Stalin, and Benito Mussolini made major gains,

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which helped set the stage for World War II in 1939. The Great Depression, combined with the “Long War” of the twentieth century—featuring the struggle of parliamentary democracies first against autocratic empires (in World War I), then against fascist regimes (in World War II), and finally against global communism (in the cold war)—essentially brought most of the processes of globalization to a halt for many decades.5 In the face of these deglobalizing forces, international law sought to inculcate values of universalism and international solidarity. The first challenge was, at the beginning of the twentieth century and following World War I, to reinvigorate the legitimacy of an international legal order that had come to be inevitably associated (in the preceding periods of globalization) with the colonial and imperial prerogatives of the European Great Powers. One way this was accomplished was through the creation of truly universal international institutions. The 1899 and 1907 Hague Peace Conferences (discussed in chapter 3) were amongst the first forums that all recognized nations were invited to participate, including all Latin American countries and those independent nations of Africa and Asia. Proposals for the creation of a global adjudicatory body were first made in earnest at these meetings. In spite of the relative allure of international arbitration, many States believed that international law could not truly be effectively followed and enforced until there was a permanent institution for settling inter-State disputes. Plans for the creation of such a court foundered in 1907 when some nations objected to a tribunal with a limited number of judges (these States wanted a judge appointed for every member nation, making for an unwieldy bench), and Germany generally opposed a tribunal with anything but optional jurisdiction. While the peace conferences did create a Permanent Court of Arbitration (PCA), it was a middling consolation prize—it was merely a facilitation center for arbitration, not a permanent judicial body.6 The dream of a universal international organization, one that would aspire to garner global membership and to address a wide range of international problems, was only achieved with the creation of the League of Nations (League) in 1919, after World War I. The League was unquestionably the brainchild of Woodrow Wilson, the U.S. president and former professor of government, and was intended to serve as a forum to resolve all international disputes. Its record in carrying out its primary task—protecting international peace through a system of collective security—was severely compromised by a lack of political will in the face of serious acts of aggression by Japan, Italy, and Germany. Nonetheless, the League was otherwise successful in addressing such issues as protection of the rights of minority populations in Central and Eastern Europe, adjusting disputes between smaller nations (especially in the Balkans and Latin America), advancing social services around the world (this despite the onset of the Depression in the 1930s), and codifying international law.7 Moreover, the very institutional structure of the League was to provide the model for virtually every subsequent international organization. The

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League “organs” included an Assembly, where each member of the organization had one vote, and which set the general policies of the institution, adopted budgets, and was assigned specific tasks for debating issues of disarmament and economic cooperation. Counterpoised with the Assembly was the League Council, a much smaller body in which the Great Powers had permanent representation, along with rotating membership by other, smaller (but no less responsible) nations. This balance between “Great Power” realpolitik and a proto-“World Parliament” was significant. In addition to these organs was also the creation of a permanent staff for the League, led by the Secretariat. The idea for this was that the institution could rely on a professional, international civil service that owed its primary loyalty to the League, not to individual countries of nationality. Lastly, a judicial entity, the Permanent Court of International Justice (PCIJ), was established in association with the League (although, technically speaking, a separate institution), that would provide neutral decisions on legal disputes.8 When plans were made to launch a new international organization after World War II—the United Nations (UN)—the template and institutional design were already made. And, indeed, the UN’s organs closely tracked those of the League: a General Assembly, Security Council, Secretariat, and International Court of Justice (ICJ) (along with an Economic and Social Council and Trusteeship Council [the latter now defunct]). The UN’s ability to manage conflict through its collective security mechanisms and prohibitions on aggressive war has produced a very mixed record, especially during the cold war and in the face of ethnic and religious conflicts in the 1990s. As with the League, the UN’s real successes have been in areas such as promoting human rights, spurring decolonization, facilitating aid and development, negotiating disarmament and arms control, and generally encouraging the rule of law in international relations. It should also be recalled here that the UN stands in the center of a vast network of international institutions today. Known generically as “specialized agencies,” these are the continuations of functional bureaus and commissions created in the 1800s. For virtually every realm of human interaction— economic, social, and scientific—there is a specialized agency established (along the same plan of organs as the League and UN) to manage cooperation, prepare new treaties, and draft needed regulations. In the area of international banking and finance, the “Bretton Woods” institutions of the World Bank and International Monetary Fund (IMF) occupy a central position. In international transportation, such agencies as the International Maritime Organization (IMO) and International Civil Aviation Organization (ICAO) make possible safe shipments of crude oil by sea or smooth flight connections (see chapter 7). Institutions like the World Meteorological Organization (WMO) and World Heath Organization (WHO) coordinate vital weathermonitoring and disease-prevention initiatives. All of this is a veritable “alphabetsoup” of international cooperation across the broadest spectrum imaginable of global problems.9

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The other universalist impulse for world law in the twentieth century was the diversification and democratization of the sources for international legal obligation. Because identifying the actual sources of international law is such a crucial exercise for the legitimacy and credibility of this legal system, elaborate thought has been dedicated to the effort. Serious consideration of international law sources dates back to such publicists as Grotius and Pufendorf, who both had in their writings long passages concerning the formation of unwritten customary rules between nations and also of the methods of treaty interpretation. During the period of “high positivism” that has been narrated in this part, jurisprudential discourse was obviously focused on sources of law that had strong consensual credentials, and it likewise rejected anything with a naturalist or inchoate flavor.10 One of the difficulties in considering the basic structure of the sources of international law today is that it has been codified, or even “constitutionalized,” in one of the key documents of world order: the UN Charter, which includes as a constituent part the Statute of the International Court of Justice, or World Court. The relevant language of the statute is nearly verbatim to that of the ICJ’s predecessor, the PCIJ, and derives from a provision drafted by a League Commission of Jurists in 1920. In other words, what is regarded today as the most reliable guide to the sources of international law was conceived by lawyers and diplomats whose mindset and attitudes reflected the high positivism of nearly a century ago. The ICJ Statute’s articulation of sources thus may not be entirely authoritative or relevant today. Article 38, paragraph 1 of the statute indicates that, in disputes submitted to the ICJ, the law the ICJ will apply will be: a. international conventions, whether general or particular, establishing rules expressly recognized by contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. . . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law.11

One favorable aspect of this provision is its clear sentiment that it is enunciating legal sources of norms in resolving disputes between States (the only parties that can appear before the World Court). Another clause of Article 38 bars the ICJ from deciding cases “ex aequo et bono [what is just and good]” unless the parties expressly agree to that. This suggests to many international law scholars and practitioners that the ICJ is a judicial institution and is thus bound to decide controversies on the basis of respect for a rule of law. By implication, this is supposed to confer also on the sources mentioned in Article 38 the unalloyed status of international law. Substantial methodological confusion continues to surround even the basic structure of international law sources. Except in one (admittedly important) respect, there is no hierarchy established among the sources. Indeed, in

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reading Article 38 one might believe that the sources mentioned may not even have an obvious interrelationship; they are separate and distinct, hermetically sealed in practical application. The one caveat is the distinction made in reference to the last category of materials—judicial decisions and publicist writings—as being a “subsidiary means for the determination of rules of law.” These subsidiary means are often called “evidences” of international legal rules, as distinct from the primary “sources.” The list of secondary evidences of international law in Article 38(1)(d) appears to be woefully inadequate, perhaps reflecting the relative lack of richness of such materials in 1920. The last curious aspect to the statement of international law sources in Article 38 of the ICJ Statute is that they are revealed in precisely the opposite order in which one might intuitively expect. International conventions (treaties), “establishing rules expressly recognized by contesting states,” are detailed first. This may be the product of the high positivism that produced this formulation or (just as likely) a recognition that international tribunals will first consult any written agreements between “contesting” nations in a litigation before having recourse to other sources. As a wider assertion of how international law is formed, this seems wrong. Not all norms of international conduct are made through express, written agreements. Indeed, many rules begin in any legal system as unwritten practices, perceived to be binding as law. This is called custom. Even before the customary practices of international actors begin a process of establishing legal rules, it is possible to imagine certain norms that figure in almost all legal systems and are thus coalesced into international law either at its very inception, or are later incorporated to fill gaps in practice or agreements. These are known as general principles. There is a strong correlation between general principles (whether derived from municipal legal systems or other sources) and a naturalist vision of international obligation. Lord Asquith, in a 1951 arbitral decision, had occasion to regard this as “the application of principles rooted in good sense and common practice of the generality of civilised nations—a sort of ‘modern law of nature.’ ”12 Article 38, paragraph 1(c) of the ICJ Statute refers to “general principles of law recognized by civilized nations.” It does not say “general principles of international law.” These are not, as some commentators have suggested,13 metaphysical “first principles” of international legal order. Rather, the emphasis is on general principles of domestic law (sometimes called “municipal law”), as recognized in the legal systems of “civilized nations.” The point here is that the international legal system remains primitive and unformed, and that often recourse must be had to “borrowing” legal rules from domestic law. General principles of law are the ultimate seedbed and gap-filler of international law rules. How does a legal rule become a general principle? The process by which a principle is “elevated” from domestic law to the realm of international law is subtle and complex. The very language of Article 38 is suggestive that a principle would have to be “recognized” not just in one legal system, but, rather,

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in most of the world’s legal cultures. So when Article 38 problematically speaks of “civilized nations”—a residuum of nineteenth-century legal and cultural chauvinism14 —it should today eclectically be taken as referring to jurisdictions embracing the common law tradition, the civil law, significant religious legal cultures (including Islamic law), and ideological legal systems (including socialist law as practiced in China and elsewhere). There is also a bit of a paradox in the incorporation of general principles as international legal rules. The more abstract the principle, the greater consensus of legal systems, but also the less useful the rule. Some general principles of this sort include a rule of good faith in international obligations (known as pacta sunt servanda) and the doctrines of necessity and self-defense. These are expedient doctrines, typically deduced by analogizing States to juristic persons and imagining certain “fundamental” rights of such entities. Yet, these general principles are short on specifics. The less abstract (and more concrete) the principle, the greater meaning it has, but also the more difficult it is to find a consensus among domestic legal systems. Nevertheless, general principles continue to exert a strong influence on the sources of international law, even as the international legal system has grown and matured.15 They constitute not only international law’s link with its naturalist bases of obligation, but also serve a significant function as both gap-filler and paradigm-shifter. If international tribunals and institutions have sought to be eclectic in their selection of sources of international legal obligation—and not to privilege those bases relied upon exclusively by the Great Powers—they have also sought to ensure that the “family of nations” does not become too fractious, at least in their legal quarrels. One way this has been achieved is to ensure the homogenous and universal application of international legal norms, and (in most instances) suppressing regional customs and practices. The ICJ has, for example, developed some definitive methods for identifying an emerging custom under conditions of conflict and competition. This occurred in the Asylum Case,16 which implicated a most peculiar custom. The case arose when a Peruvian military leader, Victor Raul Haya de la Torre, took refuge in the Colombian embassy in Lima after leading an unsuccessful coup attempt. Elsewhere in the world, this would have resulted in a very long stay for Haya de la Torre, for while all nations respect the inviolability of foreign embassy premises, there is certainly no rule requiring a host State to allow a political refugee safe passage out of the embassy, out of the country, and to the asylum State. Nowhere, that is, except Latin America, where evolved a regional custom of diplomatic asylum.17 The most significant aspect of this case was the ICJ’s treatment of a State’s reaction as proof of its opposition to the formation of a custom and its discounting of regional custom as a source of international law. What the ICJ ruled was that where a regional (as distinct from a global) custom was concerned, silence on the part of the State in the face of an emerging practice meant that that State objected or protested to the rule. In short, a silent or ambiguous response meant rejection. This was contrary to the general

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presumption that States are obliged to protest loud and often if they wish to avoid being bound by a rule of emerging global custom. The World Court changed the calculus of consent for regional custom in the Asylum Case and one can only conclude that it wished to suppress regional custom. There is no more effective way to do so than to declare a presumption that fundamentally disrupts the formation of such regional practices. Although the ICJ has no qualms about applying rules derived from regional (or at least nonglobal) treaties, it was concerned that development of distinctive bodies of regional rules—not just for Latin America, but perhaps also for Europe, Africa, and Asia—might unduly interfere with the universal aspirations of international law. More pertinently, the allowance of easy-tomake regional customs might also challenge the institutional role of the World Court as a place for authoritative pronouncements on international legal rules. The importance of treaties and international agreements as a source of international obligation among States is certainly beyond cavil, and not even the most ardent positivist follower of John Austin today can seriously challenge that.18 The sources and methods of public international law today combine both positivist and natural law elements. The era of high positivism and overweening State sovereignty is long past, and natural law (especially with its emphasis on human dignity and human rights) has retaken its rightful place at the center of international law discourse and obligation. In this way, the construct of world law presented in this book shares some common features with John Rawls’s argument in his The Law of Peoples.19 There is a substantial agreement about the universal thrust of these projects—whether Rawls’s “law of peoples,”20 or Harold J. Berman’s concept of “world law.” Although Rawls’s construct proceeds from Rousseau’s “social contract” jurisprudence, 21 while Berman’s is more influenced by shared religious and moral values among peoples, both scholars certainly envision a system of international relations in which States may end up mattering less than hitherto supposed.22 Rawls sees “liberal peoples” as the agent of change in international relations, in much the same manner as Berman understands the growing power and influence of the many facets of global civil society— whether of merchants, sports fans, advocates, humanitarians, and scholars. There also appears to be substantial agreement about the irreducible fundamental canons of this new world legal order. Consider Rawls’s eight principles of his law of peoples: (1) Peoples are free and independent, and their freedom and independence are to be respected by other peoples. (2) Peoples are to observe treaties and undertakings. (3) Peoples are equal and parties to the agreements that bind them. (4) Peoples are to observe a duty of non-intervention. (5) Peoples have the right of self-defense but no right to instigate war for reasons other than self-defense. (6) Peoples are to honor human rights. (7) Peoples are to observe certain specified restrictions in their conduct of war. (8) Peoples have a duty to assist other people living under unfavorable conditions that prevent their having a just or decent political and social regime.23

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In formulating these postulates, Rawls acknowledges his debt to other scholars of international law and relations, 24 just as Berman recognizes that his essential doctrinal features of world law are derived from historic fact and from historical jurisprudence. And, in that observation, lies the difference between the pure naturalism of Rawls’s law of peoples, and the integrative aspects of Berman’s “world law.” Rawls must ultimately account for the problem that his “law of peoples” is pure theory—indeed, one that has both ideal and nonideal features.25 By contrast, Berman’s vision of an emerging “world law” is supported by facts and institutions on the ground. Indeed, this volume proceeds on the assumption that the major features of world law and globalization can be seen through the immense variety of human interactions across borders, across a broad spectrum of activities, and across a continuum of cooperative relations. In short, the permissible realm of international legal regulation is the ambit of globalization. Much of the discussion in the next part will consider the inherent tensions between the goals of universalism and uniformity in international law-making, counterpoised with the objective of preserving distinctive elements of national and local autonomy (even when that can be manifested as parochial or discriminatory behavior). What this short history of world law should certainly convey is that not only is globalization a dynamic process, but it is also a fickle one. Many factors contribute both to globalizing and deglobalizing trends. Globalism has occurred through a series of historical cycles. Its progression has been nonlinear and subject to spectacular reverses. The following part will examine the special role that international legal actors, institutions, rules, and processes have in shaping the contours of contemporary globalization.

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Movement

The crucial characteristic of globalization, throughout the centuries, has

been the widespread movement of people, ideas, money, goods, and services across political frontiers, across oceans and other physical barriers, and across linguistic, ethnic, and social divides. Mobility has always been the hallmark of a global society. The free movement of individuals—as both autonomous beings and as economic actors—while bringing the greatest benefits of globalization, has also posed the greatest challenges for the international legal system. So in any consideration of the legal aspects of today’s globalism, a good place to begin is with how world law has addressed such concerns as the regulation of transport, including the two modes most normally associated with modern mobility: ocean shipping and air travel. In addition, one must also confront the unexpected dangers arising from the largely unhindered movement of people and capital across borders, whether it is in the propagation of animals and plants outside their normal range, the transmission of diseases, or the exacerbation of financial crises by the unregulated flow of money and credit. Understanding how international law has managed the exuberant and unprecedented movement of people in these more practical contexts, will also help to explain legal aspects of globalization that involve trade (see chapter 9), the prevention and punishment of transnational crime (chapter 10), and the advancement and preservation of our shared cultural heritage (chapter 11).

Regulation of Ocean and Air Transport As has already been discussed in chapter 4, one of the crucial impulses for the creation of both public international law (a body of rules that primarily govern the relations of nation-States) and world law (a common or uniform law that binds all transnational actors) were the demands of commerce, especially in the management of ocean trade. It should come as no surprise that ocean shipping was—and remains—a difficult, risky, and immensely significant undertaking. Over two-thirds of all goods in international transport are moved by sea, whether that is calculated by bulk (higher-volume,

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lower-value goods are often moved by sea), or by value (think about crude oil shipments).1 Aside from the problems of moving people and goods across long distances, there are all of the perils of the sea to contend with. Moreover, the inherent nature of the enterprise requires a coordination of laws and regulations in a variety of countries, not just the points of origin and destination of the passengers or cargo in transit.2 Ocean shipping is very sensitive to regulation. Profit margins are relatively low, and so any added increment of regulation usually results in increased costs for ocean shippers, and decreased profits. To repeat a voice heard from chapter 3, as Sir William Scott (Lord Stowell) wrote, “ships were made to plough the ocean, and not to rot by the wall.”3 Profit margins for air transport, in contrast, tend to be higher. Most passengers in individual commerce and tourism are moved by air, and the products shipped by air are of smaller bulk and higher value. And while the safety records of aircraft in international commerce are superlative (fewer aircrafts than ships are lost to accidents in any year),4 if anything, air transport is more heavily regulated than ocean shipping. There is a very significant historical reason for this difference in treatment between ocean and air shipping, one that is premised on a distinction made in international law.5 The law of ocean shipping is part of the law of the sea, a body of rules made by States for the use of oceans as the world’s largest common area (for more on the global commonage, see the next chapter). When public international law was emerging at the same time as the modern nation-State system (in the 1500s and 1600s), a vigorous debate occurred between proponents of free trade and open oceans (mare liberum in Latin, as many commentators of that time wrote) and those who supported trade restrictions and the claims of coastal States over ocean areas (a theory known as closed oceans, mare clausum). Freedom of the seas, as advocated by the Dutch jurist and writer Hugo de Groot (Grotius), prevailed, as this was the theory most consistent with the mercantilist and commercial policies of the great maritime powers of that time: Britain, Holland, France, Spain, and Portugal. Freedom of the seas, and its correlate notion of minimal coastal State restrictions of navigation, was the guiding principle of ocean law until the twentieth century. By way of contrast, the invention of aircraft was at the beginning of the twentieth century (with the advent of commercial aviation a decade after that), and the technology came of age at a most impropitious time: World War I. The legal status of air space was thus bound up with national sovereignty (especially during wartime), and the prevailing idiom of regulation for air transport was aer clausum, or “closed skies.” There is simply no analogy of freedom of the seas to national airspace or to commercial aviation, and all rights of air commerce have to be negotiated with a host State. There is thus a higher degree of unilateral regulation expected for air transport, than for ocean shipping. As a consequence, there is an even greater need for international coordination of policies and regulation, harmonization that must be achieved through the mechanisms of world law and institutions.

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The increased volume of trade makes cooperation necessary because it is too burdensome for these transit flows in a globalizing world to make a shipper or carrier (whether by sea or by air) comply with the regulations and laws of all nations that might have some connection to a transaction, especially in the event those rules are contradictory.6 The globalization of mobility has thus brought about one of the signal developments of modern international law: the creation of functional international organizations or institutions, the primary purpose of which is to unify the laws of various nations in order to standardize best practices and to prescribe at least a minimum level of regulation. This standard-setting function of international organizations is particularly important in the face of the regulatory phenomenon known as “the race to the bottom.” In highly competitive industries, businesses will be known to incorporate or do business in jurisdictions with the least amount of regulation. Remember: fewer regulations means greater profits. A race to the bottom occurs when different countries compete with each other to offer less and less regulation and supervision. For ocean and air transport, this phenomenon is played out insofar as ships or aircrafts can be registered in any country, what is known as the “flag State.” At least in ocean shipping, a whole cottage industry of “flags of convenience,” or (more neutrally) “open registries,” have developed over the past fifty years to enable ship-owners to find the least-regulated jurisdiction in which to conduct their operations.7 Registering a ship in Liberia, Panama, or The Bahamas, allows vessels to operate at a substantial cost-reduction from U.S.-flagged ships. This is the reason, of course, that while over half of the world’s ocean-going shipping tonnage is beneficially owned by U.S. corporations, barely 5 percent is registered in the United States. Of course, this race to the bottom imposes real costs and externalities on other market participants and countries. Liberia may reap the benefits of ship registration fees (while spending virtually nothing for vessel inspections and safety enforcement), while Liberian rust buckets ply the oceans, posing a danger to their crews or to other ships or to the marine environment (in the event they spill oil or cause other damage). This is where functional international organizations come into play. No single nation, or even a group of countries, can unilaterally raise standards, because ship owners will simply “escape” to more lax locales. International institutions “level the playing field,” so to speak, by decelerating races to the bottom. Through collective pressure and negotiations, a floor of regulation is established, which no country is permitted to drop below. Although this often results in “lowest common denominator” regulations—the absolute minimum level of rules that the most lax jurisdiction wants to adopt—it is still preferable to having no floor at all. And, over time, the tendency is to raise standards, having the effect (no pun intended) of raising all ships on the tide of better regulations. For ocean shipping, the International Maritime Organization (IMO), a United Nations (UN) specialized agency based in London, remains the key regulator.8 Originally founded in 1949 as the Intergovernmental Marine Consultative Organization, IMO was really just a “ship owners’ club,”

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ensuring only the barest level of international regulation. But the foundering of the oil tanker Torrey Canyon off the coast of Britain in 1967, the stranding of the Argo Merchant off Nantucket in 1976, and the grounding of the Amoco Cadiz off the coast of France in 1978, changed all of that.9 Each of these three vessels was registered under a flag of convenience, and there were inevitable charges that, in each incident, navigational errors were attributable to poor crew training or to substandard equipment, which would have been rectified had flag State regulation been more effective. The IMO thus gradually transformed itself into an organization devoted not only to the standardization of shipping rules, but also to environmental protection and maritime worker safety. Today, IMO has more than 150 member countries, and has adopted more than forty international conventions and other treaty instruments governing maritime safety, environmental protection, liability and compensation regimes (in the event of environmental incidents), coordination of marine search and rescue operations, technical assistance, and facilitation of international shipping. The IMO also adopts treaties dealing with the unification of the “private” international law of ocean shipping, a codification of the old law merchant and maritime (discussed in chapter 4), on such subjects as carriage of goods by sea, passenger contracts, limitation of liability, and salvage of distressed ships. It often takes decades for these IMO treaties to enter into force with the requisite number of countries signing on. But once they become binding international law, these conventions enjoy a high degree of compliance. To take one example of the delicate process of maritime standard-setting, consider international rules for preventing oil pollution from tankers. These regulations would be paradigmatic vessel construction, design, equipment, and manning (CDEM) rules, exactly the kind of laws that need to be standardized because, after all, no vessel could be expected to sail around the world and comply with each individual nation’s (perhaps) eccentric rules about ship configuration. One practical way to prevent spills from gigantic oil tankers (which sometimes exceed two football fields in length) is to require that they have double-hulls, so that in the event the outer hull is breached, an inner hull will contain the crude oil carried in bulk. When the Exxon Valdez went aground in Prince William Sound, Alaska, in March 1989, causing the single largest environmental disaster in the country’s experience, the United States legislated a new double-hull requirement for all oil tankers visiting U.S. waters or entering U.S. ports after an initial phase-in period.10 But, obviously, this unilateral national legislation was ineffective until the IMO could implement it as part of its Treaty on the Prevention of Pollution from Ships (also known as “MARPOL”).11 So even though there may be structural resistance to deepening regulation for certain global activities, countries can take the lead to improve best practices, and initiate a process of building consensus to raise the bar of regulation. What nations or political subdivisions of countries cannot do is to peremptorily dictate standards to the entire international community, and no less an authority than the U.S. Supreme Court has indicated that such unilateral declarations would

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violate the United States’ treaty obligation of standardized regulations for ocean shipping.12 The framework for a global regulatory system for air transport is substantially similar to that for ocean shipping. Serving a similar role as the IMO, is the International Civil Aviation Organization (ICAO), based in Montreal. Created by the 1944 Chicago Convention,13 ICAO regulates virtually every aspect of civil aviation between countries, to a greater degree and higher level of detail than IMO accomplishes for ocean shipping. The reason for this greater institutional intensity and competence is related, once again, to the different nature of oceans and airspace as international common areas, and the historically different treatment they have each been given under international law. Operating through a vast array of treaty instruments, annexes, protocols, and technical regulations, ICAO rules are updated in response to new challenges to international civil aviation. This updating process, known more formally as “tacit amendment,” is reminiscent more of how a modern regulatory agency operates (think of the Environmental Protection Agency [EPA] or Securities and Exchange Commission [SEC]), with panels of experts and industry representatives collaborating on the establishment of best practices, rather than a more ossified and sclerotic diplomatic body made up exclusively of State representatives.14 The ICAO literally micromanages operations aboard aircraft used in international commerce. In operating an aircraft in foreign airspace, the risks of miscommunication between a flight crew and air traffic controllers can spell catastrophe. Truly global activities demand truly global regulation, and ICAO goes so far as to prescribe a common language for all cockpit communications, to be used for all international flights.15 Much to the chagrin of the French government, that language is English. That means that at least two members of the flight crew of all aircraft on international flights, and all air traffic controllers handling such flights, must be fluent in English. The establishment of best practices for global regulation in such international economic sectors as air transit can thus have widespread effects on the development of culture and technology (considered in chapters 11 and 12 below). The world law aspects of international civil aviation extend beyond harmonization and standardization of operating practices. As with ocean shipping, concerns have been raised about the relationship between the transit of passengers and cargo, and free trade (see chapter 9 for more on trade disciplines). Because the control of national airspace has often been linked to concerns of national sovereignty, it is no surprise that deregulation of civil aviation has been only a recent development.16 Because of the principle of aer clausum, States are assumed to reserve the transport of passengers and cargo between points in their national territory to their own citizens and flag carriers, a practice known as cabotage. The monopolies enjoyed by national carriers (such as Air France or El Al) are only now being fully dismantled in Europe, and assailed in other parts of the world. Airline deregulation has become an important bellwether for the liberalization in the trade of services around the world.

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Lastly, there is a private law aspect to the globalizing effects of greater mobility in today’s world. International civil aviation was born in the 1920s, and was regarded as an “infant industry” that required protection if it was to fully realize its potential as perhaps the most significant technological innovation of the twentieth century with the greatest practical impact on modern living. Part of this process of protection was giving international airlines the benefits of limited liability in the event of an accident or crash causing bodily injury or death. Thus was born the 1929 Warsaw Convention,17 which capped the damages that an airline would have to pay in the event of an air disaster to less than $10,000 per passenger (that limit has now been raised to about $100,000, and in many circumstances has been waived altogether). The Warsaw Convention, aside from being the most-litigated treaty in the United States, establishes a broad international framework for settling liability questions involving international civil aviation. It is true that many have questioned whether a system of limited liability remains appropriate for a “mature” industry that has become more of a common carrier than an epic enterprise. Nonetheless, the basic elements of regulation for this sector— global harmonization of operating rules, progressive liberalization of trade restrictions, and private law protections—have been discussed for other emerging technologies and industries.

Mobility Pollutes: The Problem of Exotic Species As in some bad horror film, the alien invasion began at night, and the zebra mussel infestation in the Great Lakes has slowly but inexorably been traced back to one source. We do not know the ship’s name, but scientists believe that the vessel entered Lake Erie in late 1985 or early 1986 and released its ballast water in Lake St. Clair, not far from Detroit. The zebra mussel (Dreissena polymorpha) is a bivalve of one-inch diameter with distinctive black and white bands on its shell, hence its name. It was first found in the Black and Caspian Seas and its range quickly spread to include most European waters. The zebra mussel is a notorious biofouler, able to attach itself to almost anything. It is also amazingly prolific. If left unchecked the zebra mussel can propagate at the rate of at least one order of magnitude each year.18 Not surprisingly, in the decades after its introduction the zebra mussel has wreaked havoc in U.S. waters. The zebra mussel has no effective natural predators in the Great Lakes, vastly complicating the effort to limit its spread. In addition, the zebra mussel invasion interferes with human use of the Great Lakes. In particular, zebra mussels clog coastal structures. The cost of unfouling intakes and outfalls of power stations and water treatment plants has run in excess of $5 billion over the past decade. In the meantime, zebra mussel infestations have resulted in interruptions of power and water service to coastal communities and have resulted in other substantial economic costs.

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The zebra mussel infestation also may have a severe impact on the Great Lakes ecosystem, although these effects are not even now fully understood and appreciated. Zebra mussels have overrun the spawning reefs of the native walleye, the major sport fish of the Great Lakes. Like most mollusks, zebra mussels have an ability to clarify water and purify it of contaminants. This, too, may have an impact on the Great Lakes environment, although it is too early to tell whether the effect would be positive or negative. More distressing are the prospects for the future spread of the zebra mussel. Because the Great Lakes are connected to nearly all of the major American river systems east of the Rockies, it is expected that this infestation soon will extend throughout most of the United States. The zebra mussel infestation demonstrates that the introduction of an exotic species is usually permanent, often expensive, and potentially devastating to the ecosystem. The phenomenon of the spread of exotic species has been called the biological “homogenization of the planet—a process both inevitable and inexorable, as species after species casts itself abroad.”19 The problem of exotic species is, in essence, a form of biological pollution.20 What makes a species “exotic” or “alien” is simply the fact that it has spread beyond its traditional range. Sometimes it is difficult to know whether the appearance of a new species is the result of normal propagation and transportation. Not all exotic species survive, but a few thrive in their new surroundings. Those that do survive have benefited from an absence of natural predators in adopted environments. This process devastates the biological diversity of ecosystems, producing areas called monocultures in which only one type of vegetation or one kind of animal prospers. Many, but by no means all, of these introductions of marine organisms have been traced to the same “vector,” or pathway: introduction via the ballast water of oceangoing vessels. Ballast water is pumped on board a ship, prior to sailing, to permit the ship to float at its proper height and to provide added stability for the ship during its voyage. Several tons of ballast water are usually required to trim the vessel correctly. Initially, ballast water is pumped from the estuary or port where the vessel is at rest. It is pumped back out when the ship reaches its destination and begins the process of offloading its cargo. The intake of ballast is a routine for ship operators around the globe and is considered absolutely essential to the safe operation of oceangoing vessels. Other vectors for the introduction of exotic species can include deliberate importations of plants and animals (think of kudzu in the American South or rabbits in Australia), or, even more recently, the deliberate planting or production of genetically modified organisms (GMOs) such as improved fish, food, or seed varieties (GMOs will be considered further in chapter 12).21 The problem of exotic species is directly linked to the modalities of trade, whether by land, sea, or air. And while it would be tempting to regard its solution as lying in the realm of shipping regulation, this would undoubtedly be a mistake. National efforts to deal with unwanted plant and animal invasions have tended to focus on a particularly hostile species, and to fashion plans to eradicate that target.22 This has typically focused on vaguely comic

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plans to use one plant or animal to predate on another, in a weird, human-engineered example of survival of the fittest. These kinds of eradication efforts are doomed to failure because, without addressing the vectors by which alien species are introduced into new habitats and ranges, they will constantly reemerge as threats. Where international law can play a role is by formalizing international cooperation around national responses in preventing the introduction of exotic species through known vectors. An essential part of the process of developing world law to address any matter is to define the problem, itself. Although this sounds simple, the challenge of exotic species illustrated an important semantic dynamic: how to define pollution in such a way as to include living species. Normally, we consider effluents (such as oil pollution), dangerous substances, and energy as pollutants, but not biological agents that happen to be out of place. But beginning with the 1933 Convention Relative to the Preservation of Fauna and Flora in their Natural State, 23 a habitat protection treaty for Africa, and the 1982 UN Convention on the Law of the Sea (UNCLOS),24 which expressly considered exotic species as an aspect of marine pollution, international legal recognition was given to this problem. That still leaves response mechanisms. International law has developed a few strategies, and these are often replicated in a variety of international environmental regimes. The first is to simply regulate the harmful human activity that gives rise to the environmental challenge. For many introductions of exotic species into oceans, estuaries, and lakes, that would be through the ballast water carried on board vessels. Technical regulation in this area has taken the form of an Annex to MARPOL, the treaty developed by IMO to deal with oil-pollution incidents. The vessels of contracting States to this Annex will be required to perform ballast water management, meaning that ballast will either need to be dumped out on the high seas, away from land (which poses less of a risk of contamination or infestation), or, if the safety of a vessel is threatened by doing so in the open ocean, by pumping ballast water into specially constructed reception facilities at ports (which will be more costly).25 For agricultural or horticultural exports, another popular vector by which weeds, bugs, and critters move around the world, new inspection and testing regimes have been proposed.26 But regulation of harmful activities—blocking the vectors for introductions of nonindigenous species—does not always work. So other alternatives need to be considered. One of these is exclusion, attempting to keep exotic species out of particular conservation areas in order to maintain their integrity as natural habitats. This is the equivalent of establishing national parks or international nature reserves or monuments, designed to maintain a “status quo” of natural conservation and heritage.27 Another approach is a broader protection model, designed to benefit all habitats, not just selected reserves. This would tend to give preeminence to regulatory systems that would guide decision making on the intentional introduction of nonindigenous plants and animals. The 1979 Bonn Convention on Migratory Species28 and the 1992 Biodiversity Convention 29 emphasize this approach.

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As with other international environmental protection regimes, the control of exotic species has often turned on procedural mechanisms designed to improve cooperation between autonomous States. One of these is a simple duty for nations to inform and consult with each other when they are contemplating an introduction of a nonindigenous species or when they learn of such an occurrence. Some bilateral, regional, and global treaties demand that nations take a “precautionary approach” to environmental planning, requiring that environmental impact assessments (EIA) be conducted in order to ascertain whether a planned activity (such as an introduction of an exotic species, or, perhaps, a response to one already in a habitat) is supported by best practices and the best scientific data available. When certain human activities might have cross-border or transnational effects (as many invariably will), some international treaties require a form or “prior informed consent” by affected countries. Lastly, there is always a place for post-hoc private law liability regimes that will allocate responsibility for improper actions and channel compensation to innocent actors affected by, for example, an improper release of an alien species into a pristine ecosystem.

Mobility Impoverishes: Capital Flows and the Asian “Flu” The problem of exotic species reflects only one externality of global mobility. It is not just goods and products that move between nations, after all; it is also such inchoate items as money and financial services. A crucial aspect of globalization (whether ancient, medieval, modern, or contemporary—see above, chapter 4) has been periods of increasingly free movement of capital and investment across political frontiers and between economic systems of strikingly diverse levels of development. To a degree that is admittedly unprecedented in human history, today’s globalism features a striking integration of financial markets that has fundamentally altered expectations as to how money is valued and how flows of capital are controlled. Consider the following not-so-hypothetical vignette.30 What started as the lending spree of the last decade became the debt crisis of the next. The moment that marked the transition between the two nearly went unnoticed at the time. It could have been that last ill-advised foreign loan by a bank desperate to salvage its balance sheet. Or perhaps it was the gentle downturn in the leading indicators of prosperity: declining productivity, shrinking credit, rising prices, lost jobs. New barriers to the international trade in goods and services were, no doubt, also a factor. Enormous sovereign debt, having long accrued by the necessity of reconstruction and development, was undoubtedly the most visible cause of the critical situation. In addition, the rapidity by which foreign investment and capital could be withdrawn from debt-stricken nations, and the volatility of exchange rates (which sent the currencies of those countries dropping in value), further exacerbated the situation. This could be a memoir of 1929 (at the beginning of the Great Depression)—or of 1981 (and the sovereign debt collapse of that year)—or of

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1997 (at the outset of the Asian economic crisis). Like the broader patterns of globalism, worldwide economic crises have been found by economic historians to come in cyclical patterns.31 Indeed, the years 1981 and 1997 bracket a period of spectacular global growth in trade, foreign investment, per capita incomes, and gross domestic products (GDP) by most nations. At least some of this growth was fueled by capital from Japanese, North American, and European investors looking for high (some might say, speculative) rates of return, in a never-ending round of what Susan Strange has called “casino capitalism.”32 But what occurred from 1997 to 2000 among Asian economies (particularly South Korea, Thailand, Indonesia, Malaysia, and the Philippines) was a most disturbing trend. A fast-moving economic virus moved through these nations, resulting in a massive flight of foreign investment and capital from these countries and plummeting currency exchange rates, leaving economic devastation in its wake—business failures, massive unemployment, and repudiated debts. No wonder this was called the “Asian economic flu,” although the effects of this economic crisis were global, with shockwaves felt in Latin America (particularly Mexico, Brazil, and Argentina), and Africa. What was all the more passing strange about this last economic crisis is that it had no apparent etiology or direct cause. While the Asian economies in question had structural deficiencies—including too-fast growth over the past decade, high corporate debt loads, and great income inequalities across population segments—none of these should have, at least according to economists, triggered the economic death spiral. Instead, what appeared to have occurred was a vicious feedback loop between these economic problems and overseas investor fear.33 The Asian economic flu was, at its essence, a crisis in confidence made possible by the quick transmission of adverse economic news that led, in turn, to the almost frictionless withdrawal of foreign investment from the affected countries.34 What torpedoed these Asian economies was two aspects of what we now take for granted in the new, mobile global economy: low costs in gathering economic information from around the world and low barriers to the movement of capital, free from the interference of meddlesome or protectionist governments. In short, the very best features of globalization directly contributed to a climate of financial fear and panic. The Asian economic flu thus illustrates, in perhaps an even more immediate way than the challenge posed by exotic species, the interconnectedness and interdependence that today’s global mobility brings. With an integrated system of world monetary and capital flows, one country can hardly remain aloof from economic developments. That accounts for the “spread” of the capital “influenza” that moved from one Asian economy to the next, as foreign investors and capital fled the entire region, and then retreated back to their financial bastions in the most developed nations. Indeed, with the exception of truly hermit States (think of the Soviet Union during the Great Depression or North Korea today), adhering to rigid communist precepts and eschewing any foreign direct investment (FDI) or

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aid, every country—whether fully developed or developing—could well be affected by these sorts of crises in the future. To address this extraordinarily negative side-effect of globalization, and to prevent new economic crises from occurring, two sets of legal responses have been proposed. The first is a form of national economic retrenchment, which means that in addition to dealing with the root structural causes of domestic economic problems (poor financial and banking infrastructure, high debt loads, volatile interest and exchange rates, and income inequality), countries will also seek greater autonomy and flexibility of economic decision-making, uninfluenced by global markets. This is a polite way of referring to restrictions on movements of capital and investment in and out of a country. This is nothing more than a “deglobalizing” move. Asian countries, most notably Malaysia, have reasserted a right to prevent capital from fleeing their country on the first whispers of financial adversity. In these circumstances, FDI could be kept hostage to the government’s efforts to shore-up the economy in times of crisis. In addition, a government may seek to control exchange rate fluctuations by artificial, nonmarket methods. What all of this means is that what was before a frictionless flow of capital between nations could become restricted by such legal expedients as repatriation limitations and artificial exchange rates. If carried to a logical extreme, this form of domestic retrenchment could lead to national expropriations of foreign investment and trade protectionism, the leading causes of global economic downturns and depressions. The second bundle of legal responses to the Asian economic crisis of the late 1990s, the one supported (not surprisingly) by the leading capitalexporting nations and the most-developed nations, proceeds in exactly the opposite direction. This would be to improve the global economic and financial architecture through international institutions monitoring and adjusting monetary and capital flows. Part of the larger doctrine of global economic development known as the “Washington Consensus” (already introduced in chapter 5), and the global trading regime that will be considered in chapter 9, this functional approach is largely effectuated through such organizations as the International Monetary Fund (IMF), the World Bank, and the Bank for International Settlements (BIS). The BIS was founded during the Great Depression and now serves as a clearing-house for national central banks (or in the United States, the Federal Reserve Board). The IMF and World Bank—collectively known as the “Bretton Woods” institutions, named for the New Hampshire conference where they were created—are today, along with the World Trade Organization (WTO), the troika of key international economic institutions. And while the World Bank is in the business of sovereign lending (typically for infrastructure projects), the IMF is charged with the task of providing a multilateral system of payments between member nations and to eliminate currency controls and exchange rate regulations. 35 The IMF is supposed to ensure monetary liquidity for countries by accounting for their available

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reserves, expressed in an artificial unit of currency known as Special Drawing Rights (SDRs). In short, IMF’s raison d’etre is to support a central pillar of today’s economic globalism: the free trade in national currencies and the frictionless movement of money and capital across borders. To achieve this goal, IMF can deploy resources and tools that other UN specialized agencies (such as IMO and ICAO) cannot. Among these are bridging loans, currency rate facilities, and other means to tide national economies over an economic crisis. But these benefits come with substantial strings attached—conditions— that the recipient State must abide by. These conditionalities may include devaluing the local currency, raising interest rates, selling off governmentdominated sectors, and making other market reforms. The IMF conditionalties have become progressively more stringent as economic crises have deepened in severity.36 Currency exchange rate fluctuations are more volatile today—largely because market forces control those rates, and not some international rate-setting body (a function which the IMF tried to accomplish, but abandoned the effort in the 1970s). All of this means that the conditions for renewed regional or global economic crises are inherent structural defects in the international “architecture” of banking, development, investment, and finance. It is important to recognize that while policy debates about, and practical responses to, global financial crises are often framed in the idiom of economics, there is a strong component of legal regulation at work here. The architecture of the international economy is undergirded by a structure of treaty obligations and customary international law understandings as to the free flow of money and capital. Without these public international law underpinnings, particularly the rules against exchange rate restrictions in the Articles of Agreement of the IMF,37 the Washington “Consensus” of liberal, market-oriented growth and the free movement of capital, would be impossible.38 The extent to which this consensus is now under attack—and the degree to which this aspect of globalization has been the subject of a withering critique—is something that will be considered in the balance of this volume.

Mobility Kills: HIV, Ebola, SARS, and Other Infectious Diseases As if further proof was needed about the challenges posed by today’s mobile globalism, it is worth ending this chapter by reflecting on the potential for a worldwide epidemic or pandemic caused by infectious diseases. Although by no means the only global public health problem that implicates globalization and world law (others will be discussed in chapters 8, 9, and 12), the threat of spreading infectious diseases remains the most serious in terms of potential lives lost and disruptions to established international avenues of transportation, and everything that depends on the physical movement of people across boundaries and around the world. Like international economic downturns, global pandemics can arise with frightening regularity

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and frequency.39 Indeed, aside from the Black Death (bubonic plague) of the 1300s and frightening recurrences of smallpox (probably the greatest pestilence in human history), the worst global health crisis of the past century was undoubtedly the influenza outbreak of 1918–1920, killing nearly 10 percent of all people infected, or about 50 million people worldwide.40 The monitoring and containment of the movement of infectious diseases across borders was recognized as a legitimate topic of regulation by international law in the late nineteenth and early twentieth centuries.41 International sanitary commissions were created to establish procedures for medical testing and observation of individuals, especially immigrants from parts of the world where certain highly infectious diseases (such as plague, cholera, and tuberculosis) were pervasive. Quarantine standards were established, along with the principles of exchanging pubic health information and disease treatments between nations. To the extent that another vector for the transmission of infectious diseases is through the global trading system in commodities, the normal disciplines of free trade (more on which in chapter 9) contain an exception for measures that States may wish to unilaterally impose to contain the spread of certain diseases, provided that such actions are supported by both public necessity and the best scientific evidence available.42 But this traditional system of global infectious disease control—really a relic of nineteenth-century globalization—has come under increasing pressure to respond to new threats, and, in many respects, has proven itself unequal to the task. Perhaps this was inevitable. As already noted, the sheer volume of human movement today is probably about the same (or less) than it was in 1800 or 1900, with the depopulation of Africa through the slave trade in the 1600s and 1700s or the large emigration flows out of Europe that occurred in the nineteenth century. What has changed remarkably is the phenomenon of occasional travel not connected to emigration: business travel and tourism, especially. When combined with the rapidity of air transport, the ability of people to move to and from distant parts of the globe, the incubation and transmission zones offered by aircraft and airports, we have all of the makings of potentially deadly outbreaks of highly infectious diseases. The current international disease monitoring and response system has been sorely tested by such newly emerging highly infectious agents as the Ebola virus and Severe Acute Respiratory Syndrome (SARS). Because these agents are quite communicable, highly deadly (with mortality rates between 20 and 80 percent, depending on the strain), and have moderate incubation periods (making it possible for asymptomatic individuals to travel while highly infectious), there is a great likelihood of a local epidemic spreading simultaneously to many other locations. No longer is it possible for these infectious diseases to be confined to the traditional “reservoirs” of disease—Central Africa for hemorrhagic fevers and Southeast Asia for avian influenza. As witnessed with the SARS outbreak of 2002–2003, local “hot zones” in South China were quickly replicated in Hong Kong, Taiwan, and as far away as France and Toronto, Canada—all made possible by the infrastructure of modern mobility: commercial aviation and tourist hotels.

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The SARS outbreak clearly revealed failings in the health surveillance systems of many nations. At the beginning of the epidemic, the Chinese government inadvertently or deliberately undercounted the number of affected patients, was not adequately quarantining those who had possibly been exposed to the SARS virus, and was unable to respond with effective treatments to the disease, allowing it to spread even further to health workers and their families. The World Health Organization (WHO), yet another UN specialized agency based in Geneva, Switzerland, was called upon not so much to “legislate” uniform regulations for disease monitoring and response, but, rather, to provide technical assistance and coordination among national communicable disease agencies (think of the Centers for Disease Control (CDC) in the United States) and nongovernmental organizations (NGOs) of doctors, nurses, and public health workers. Indeed, the SARS outbreak was probably the first epidemic addressed most effectively by a transnational network of “epistemic communities” of technical experts.43 To put it another way, when the officials and bureaucrats of nation-States proved ill-equipped or too slow-moving to respond to the growing epidemic, these more informal transnational networks stepped-in to provide upgraded surveillance systems (to track possible infected individuals), better quarantine and observation methods, and superior drug treatments to hospitalized patients. While Ebola, SARS, or other newly emerging diseases (such as new strains of avian flu) capture the headlines and raise the biblical specter of a modern scourge of pestilence, it is the Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS) epidemic that has, of course, accounted for the most death, suffering, and social and economic disruptions in countries around the world. Insofar as HIV/AIDS has a variety of infectious vectors (although most notably though blood products and sexual activity), has no known cure or preventive vaccine, and that treatment for the disease is currently dependent on a relatively expensive regimen of drug therapy, it is no wonder that it presents the single greatest public health challenge in many parts of the globe. With the HIV infection rate in certain southern African nations approaching 25 percent, AIDS has reached the stage of either becoming endemic to parts of the world’s population, or, almost paradoxically, resulting in the decimation of an entire generation of adult populations in certain countries.44 The international law response to HIV/AIDS has been accomplished on a number of fronts. The WHO has preferred to work through more informal, nonbinding recommendations and technical standards, as opposed to issuing amendments to its International Health Regulations (IHR). To some degree WHO has sought to harmonize national legislation dealing directly with the HIV/AIDS pandemic. The key features of WHO’s standardized legislation on this subject include centralizing public health powers in a particular government authority (usually a health ministry), accurate reporting requirements for HIV infections, protecting the integrity of blood and organ donor systems, promotion of education about HIV/AIDS prevention, and additional funding and support for AIDS treatments. One policy response

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that WHO does not advocate, but which has, nonetheless, been adopted by a number of countries is mandatory HIV testing for certain classes of immigrants or tourists and the exclusion of such afflicted individuals from the national territory of the testing State.45 Lastly, WHO and national governments have turned their attention to a sociological element that has been found to greatly contribute to the transmission of HIV/AIDS: the international trafficking of women and girls for prostitution and the movement of men to certain locales for sexual tourism. In David Fidler’s evocative phrase of “microbialpolitik”46 we have all of the ambivalence of the mobility aspects of current globalization. Germs are as indifferent to border formalities as are exotic species or even capital investment. They move with their own logic, whether it is the presence of host organisms, or a transport vector through ballast water, or the demands of a global marketplace. The phenomenon of fast-paced, far-flung, nearly instantaneous movement around the globe is assuredly a central feature of globalization, and, perhaps, the one that confers the greatest economic and social benefits as well as personal pleasures. This culture of global mobility is now so taken for granted that when movement is interdicted by events—or restricted by legal necessity—it is seen as something unexpected and even catastrophic, a return of international society to an earlier, less advanced, less progressive, perhaps even less civilized, time. If this chapter has meant to convey any idea it is that while international law has made significant advances in the management of challenges associated with mobility, far more needs to be done. Although the development of functional specialized international agencies (such as IMO, ICAO, and WHO) can do much to harmonize potentially divergent national policies, it still remains that the diplomacy at these organizations verges on lowest common denominator politics. Whether it is a regulatory “race to the bottom” or the maintenance of favorable conditions for international capital and investment, there are very real limits on the legal effectiveness of formal international institutions. That is why it may become increasingly common, as seen in the context of exotic species and infectious disease control, that non-State actors, operating through transnational networks of technicians and experts, may come to play a crucial role in the management of these problems. As described here, these epistemic communities reflect the benign and sophisticated face of new international governance structures, even as they confront the dark and unpredictable effects of our highly mobile globalism.

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losely related to, but analytically distinct from, the phenomenon of movement in contemporary globalization is how the international community has come to manage the “global commonage,” those areas and resources held in common by international actors. Because the free movement of people, commodities, and capital across borders is a kind of international public good, it is easy to think of global mobility as a kind of commonage. But the global commons presents challenges to world public order that are different in kind and extent from those posed by mobility across political frontiers. Common resources lead to management challenges, precisely because the assets are held in common. Known as the “tragedy of the commons,” this is the observation that things owned by everybody (say, a village green or mutual fishery) are conserved by nobody.1 No single actor has an incentive to foreswear adding extra sheep to graze on the green (and thus conserve the grass) or to halt overfishing. Under this theory, common resources are inevitably degraded and destroyed over time. There appear to be only two alternatives to this tragedy: divide the resources (and thus grant individual property interests in the asset) or depend on explicit institutions and rules to manage it. International law has relied on variants of partition and management strategies for many international common resources. Sometimes these approaches are mutually contradictory and incoherent. Rationality in managing a common resource can thus conflict with fundamental fairness or equality.

Conservation on Ice: Antarctic Ecotourism A first vignette for understanding the legal aspects of management of the international commons is an extension of the new global mobility. Human beings are simply traveling to places they have never been before, and in numbers that are unprecedented. And, as already considered in the last chapter, while tourism seems to be an unalloyed international public good, it has its problematic aspects (such as travel for sexual exploitation). These are starting to raise concerns over the management of truly international common spaces—whether international rivers, the high seas, or even outer space. One of these paradigmatic areas of global commonage is Antarctica. In the twentieth century, human beings finally explored the Polar Regions of

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the Arctic (North Pole) and Antarctic (South Pole). The Polar Regions are significant not only as a platform for science, but also for geostrategic reasons. Beginning in the 1910s and 1920s, States that bordered the Arctic Ocean (including Canada, Norway, and the Soviet Union), as well as those nations that had ambitious scientific expeditions to the Antarctic, began to make actual territorial claims to these Polar Regions. These claims depended on assertions of discovery or more spurious notions of contiguity with national territories, but they were certainly not supported by any credible evidence of effective occupation. Indeed, aside from indigenous populations of Inuit, there are few permanent settlements in the high Arctic, and none at all on the Southern Continent (the number of scientists and tourists in Antarctica rarely exceeds 25,000 at any one time). The way in which States have purported to perfect territorial claims in Polar Regions has a comic aspect. The Chilean and Argentine governments have flown pregnant women to Antarctica, had them deliver babies there, and then record in the children’s passports the place of birth as their “Antarctic Territories!” The United States and Britain actually engaged in a 1934 diplomatic correspondence over the propriety of issuing postage stamps and operating a radio station in the Antarctic.2 Canada has aggressively asserted its right to legislate antipollution restrictions in its claimed sector of the Arctic. Russia has recently staked claims to the Arctic seabed’s rich oil and gas resources. The practical solution for competing Antarctic claims was developed in the 1959 Antarctic Treaty that, for all intents and purposes, “froze” national claims to sectors on the Southern Continent.3 As long as that treaty remains in force, no nation can assert a territorial claim to Antarctica. At the same time, the Antarctic Treaty System (ATS) demilitarized the region and established a unique regime to manage activities and resources there. The Antarctic Treaty Consultative Parties (ATCPs) meet regularly at Antarctic Treaty Consultative Meetings (ATCMs) to develop regulations for the safe and friendly use of the continent. These have included regimes for the management of fishing resources in the Southern Ocean, as well as a comprehensive environmental protection protocol (signed at Madrid in 1991).4 Similar forms of international cooperation are being developed for the Arctic region. The international legal mechanism chosen to manage Antarctica can be likened to a condominium. Those ATCPs that have asserted territorial claims to parts of the Antarctic continent have agreed (at least for the moment) to sublimate their territorial desires to a collective regime in which all nations that have scientific interests in Antarctica have a role in fashioning regulations for the use of the collective resource. Make no mistake, though, the ATCM is still an exclusive club. Not every country is admitted to its councils; only those that have a demonstrated commitment (such as establishing a scientific base or program involving polar science) are allowed to participate.5 But, having gained admission, these ATCPs can determine many technical aspects of the use of the Antarctic continent: including the creation of protected areas, rules for inspection of bases and facilities, responses to emergencies, and other forms of logistical and scientific cooperation.

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As an epistemic community, the government officials and Antarctic science program managers that gather at the ATCMs are a remarkably cohesive group. Even during the height of the cold war, U.S. and Soviet delegates were often in agreement that Antarctica ought to remain a neutralized, weaponsfree zone, dedicated to science. If the ATCPs could agree on anything it was that they were in a superior position to manage the uses of the Antarctic and Southern Ocean, especially in comparison to the international community at large. That is why the ATCPs vigorously rejected calls by the United Nations (UN) and other bodies to have Antarctica declared the “common heritage of mankind.” This principle was regarded by the ATCPs (and other developed countries) as merely a thinly veiled attempt to transfer control of resources as varied as deep seabed manganese nodules, the moon and celestial bodies, and forms of intellectual property rights to the developing world.6 The ATCPs were able to maintain the moral high ground of their neutral and technical condominium regime in Antarctica only for so long as they have avoided resource conflicts. They nearly discredited their authority by drafting a treaty in the 1980s on mineral resource activities (known by the rather unappealing acronym, “CR AMR A” [Convention on the Regulation of Antarctic Mineral Resource Activities]).7 The ATS’s legitimacy was directly implicated by CR AMR A and was to focus the entire debate on a conservation ethic for the continent. No matter how the ATCPs dressed CR AMR A up, it was viewed fundamentally as antithetical to environmental values. It was this factor, when placed in combination with the antipathy and envy that certain non-ATCPs held toward the ATS, that proved to be CR AMR A’s downfall. However, the wider international community was not the catalyst for the regime change that resulted in the rejection of CR AMR A and its substitution by the Madrid Protocol. Nor was it the ATCPs themselves, which appeared blithely prepared to continue on the road to self-destruction. Instead, in one of the great untold stories in modern conference diplomacy, it was the work of environmental nongovernmental organizations (NGOs, including the Antarctic and Southern Ocean Coalition [ASOC]) that proved crucial to this revolutionary regime change.8 The ASOC had two things going for it. The first was grassroots organization. The ASOC was formed as a coalition of many different national and international environmental groups. Although these groups had many divergent agendas, the Coalition was able to remain single-mindedly focused on Antarctica. Of course, the drafting and signing of CR AMR A in 1988 gave just the impetus that was required to mobilize public opinion in various countries. The ASOC was also able to balance the views of its various constituents. For example, Greenpeace International was an ASOC member even as it pursued its direct action strategy by establishing its own scientific base in Antarctica, conducting inspections, and staging protests. The Coalition soon gained clout within the ATS. The ASOC members began to serve on national delegations to ATCPs in the 1980s. In 1990, it won consultative status as an invited expert at the ATCMs.

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The ASOC’s second strength was that it had an idea big and bold enough to counter CR AMR A. As with most revolutionary notions, it was really quite simple. Mining would be banned and the Southern Continent would be proclaimed as “World Park Antarctica.” At least rhetorically, the concept presented precisely the opposite image of CR AMR A as a resource regime. The stake through CR AMR A’s heart came when ASOC and its affiliates mobilized public opinion and focused a relentless campaign in those countries that were perceived as likely to defect (for whatever reason) from the treaty. Ultimately, CR AMR A was defeated when France and Australia indicated that, though they had signed the instrument, they would not ratify it. This is the first, and probably only, time that an international regime was defeated through NGO action after negotiation and signature. Today, the major threat to the cohesion and legitimacy of the ATS comes from what would ostensibly be regarded as an utterly benign activity: ecotourism.9 Nonscientific visitors to the Southern Continent have been rapidly increasing over the past decade, from approximately 5,000 for the Antarctic summer of 1990, to about 20,000 today. Most of the tourists come by cruise ships, making landfalls at the same islands or bays, greeting the same flocks of penguins and pods of seals, and raising the risk of a vessel collision or oilspill incident. Even more adventurous people visit Antarctica, engaging in such “extreme” activities as skydiving over the South Pole, kayaking in the frigid waters offshore, or trekking inland. Ecotourism in the Antarctica obviously confers many benefits, not the least of which is that privileged people get to witness the harsh beauty and wilderness of the Southern Continent for themselves. With escalating numbers and the increased intensity of these nongovernmental and tourist activities, the environmental impacts are, as yet, unknown.10 With Antarctic ecotourism, as with many things in life, there may be too much of a good thing. In another development that shows the complex dynamic of epistemic communities and the “technical” regulation of common resources, ASOC as an environmental NGO for Antarctica has been challenged for moral legitimacy and policy supremacy within the ATS by a group of Antarctic tour operators. These companies have a direct stake in the use of Antarctic resources for tourism, which ASOC lacks as there is no personal constituency for this area (remember, there is no permanent population in Antarctica). Following a model for trade associations, the Antarctic tour operators have attempted to assert their right to self-regulation (through the promulgation of “best practices” directives), to win the adoption of favorable rules by the ATCPs, and to suppress any commercial competitors for access to Antarctic tourist sites. In addition, they have generally rejected ASOC’s call for managing Antarctic tourism by capping tourist numbers, to impose direct government regulation of those activities that have the biggest environmental impacts, and provide for more extensive inspections of existing tour operators. The most damaging effect that ecotourism may well have on the ATS is by subverting the ATCPs own agreed understandings as to the elimination of claims of territorial sovereignty in Antarctica, the legal lynchpin for the

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whole condominium regime. Some ATCPs are currently positioning themselves to build runways and tourist reception centers in order to accommodate tourists flying in by air. (Such tourist flights were suspended in 1979, when a New Zealand craft crashed in Antarctica, killing all seventy-two on board.11) There is even talk of permanent lodges and hotels being established in Antarctica. All of this raises the specter of ATCPs literally competing for tourist revenue, rather like the way that some Caribbean Islands bid for port calls by cruise ships. The ATS thus presents a complex picture of what has been hailed as a model regime for the international management of a piece of the global commonage. But as with any domestic administrative or regulatory system, interest-group politics and commercial considerations can never be removed from the calculus.12 Just as government regulators can be influenced or “captured” by competing interest groups and trade associations, so, too, can international administrators. Far from being neutral or technical agencies, the regulatory model of international common resource management presents its own issues of legitimacy. This is especially so when the system has to weigh competing demands by different stakeholders in the resource.

The Zimbabwe Paradox: African Elephants and CITES No better cautionary tale can be told about the limits of international law than the sad story of efforts to protect the African black elephant from extinction.13 Once abundant throughout its range in all of central and southern Africa, the black elephant (a slightly different species than that found on the Indian subcontinent) has faced many pressures. Chief among these has been the loss of habitat to development, cyclical droughts, and predation by other animals. By far and away the greatest cause of the deaths of African black elephants has been a seemingly never-ending cycle of poaching by humans. The elephant’s ivory tusks have been valued by traders and consumers (especially in Europe, North America, and Asia) for centuries, in the fashioning of durable household items, jewelry, or artwork. The tusks of a male African black elephant can grow to five or six feet, and a pair can weight as much as several hundred pounds. The income generated by the sale of those tusks on an international market can represent the annual income of an African village or windfall profits for poachers and smugglers. Mentioned in passing in the previous chapter, conserving stocks of African elephants became a legitimate topic of international legal regulation in the 1930s, with the adoption of a treaty on the Preservation of Fauna and Flora in Their Natural State. This convention regime essentially adopted a “keep out” strategy for common resources such as migratory species ranging over the vast interiors of the African continent. A system of game reserves was established in signatory countries with the object of insulating certain animals from hunting by local populations, preferring, instead, to keep such stocks available to European hunters and visitors.14 Habitat protection in this

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protozoan legal regime was thus premised on the political and economic illegitimacy of colonialism and imperialism. It is no surprise, then, that when African countries became independent in the 1960s and 1970s that the existing game preserve system was subject to substantial alteration. Instead of private preserves, national parks were created—catering to affluent big-game hunting expeditions or photo-safaris bringing and spending hard currency in these impoverished nations, the forerunners of the “ecotourists” of today. The benefits of big-game habitats were supposed to be shared among the populations at large. In this sense, the national park systems in central and southern African countries reflected a true “commonage.” In some instances, these national parks were actually established so as to straddle international frontiers, allowing animals to range in a way that was indifferent to political realities. As with any tragedy of the commons, a resource that is owned by no one is not truly protected by anyone. Poaching of African elephants became endemic in the 1970s and 1980s. It is estimated that the population of African elephants was slashed by nearly three-quarters during that period, largely because of uncontrolled poaching of herds.15 In Zimbabwe and Kenya, two countries that inherited from their previous British colonial administrations the game preserve/national park model, the poaching rates were spectacularly high. The reason for this is that local villagers and tribes were complicit in the raiding of herds and taking of elephants. After all, there has always been an uneasy relationship between elephant herds and human agriculturalists. Far from being the benign creatures as portrayed in films and books, African black elephant herds are known to systematically trample crops, to prey on livestock, and even to mount systematic attacks against villages. Put simply, there was no love lost between local villagers in Zimbabwe and Kenya and the free-ranging elephant herds that only occasionally kept within their preserves. To address the problem of uncontrolled poaching by locals, Zimbabwe and Kenya adopted strikingly different approaches. In Kenya, the national park system was “hardened” by hiring more game wardens, better arming them, and increasing the criminal penalties for the unlawful taking of wildlife. Nevertheless, poaching continued unabated, largely because of the low salaries and benefits offered to game wardens made them easy targets for bribery by well-organized cartels of poachers and smugglers. Indeed, in Kenya it was found that the most successful groups of poachers were either retired or active game wardens. Zimbabwe, by contrast, adopted a far more radical approach.16 It essentially “partitioned” the resource of elephant herds by giving “ownership” over the animals to the villages most closely proximate to the range of the herds. The bargain struck by the Zimbabwe government with these villages was elegant in its simplicity. In exchange for the villagers’ promise not to poach the elephants, the villages would receive a substantial share of any revenue from tourism at nearby “observation stations,” and, when an elephant died of old age or other natural causes, the proceeds of the “harvest”

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of ivory when sold on the international market. Not surprisingly, poaching was virtually eradicated in Zimbabwe. Local tribes no longer had an incentive to participate in the unlawful taking of elephants, and the villagers became extraordinarily protective of their “property,” often going so far as to move human settlements away from the paths of herds. Needless to say, outsiders caught poaching in a tribe’s territory were treated harshly by the villager-owners—often by having parts of their body amputated or being summarily executed. In a matter of years from the institution of this system, elephant herds in Zimbabwe rebounded. It is at this juncture of the story that international law intrudes, illustrating that rationality and cooperation can come into bitter conflict as first principles of world legal order. At the outset, international law’s involvement in the protection of endangered species appeared salutary. This came about through the recognition that the most potent tool for protection of the entire environment is linking enforcement mechanisms to the global trading order. The first, pathbreaking, international instrument to do this was the 1973 Convention on International Trade in Endangered Species (CITES).17 CITES’ solution to the problem of rampant poaching of endangered animals and harvesting of rare plants was also economic—remove incentives for profit by eliminating the trade in these items. CITES works through governments which place endangered flora and fauna on different treaty “schedules” or lists. A CITES Schedule III listing means merely that a species is subject to regulation in at least one State Party, so that other treaty-members must provide information on the trade in that species. A Schedule II listing means that a species is potentially endangered, triggering a whole set of export and import regulations, including a requirement that any shipment of products made from that species has to be accompanied by a government certificate. A Schedule I listing is a categorical ban on any trade in products made from that species, except for expressly allowed scientific study, ex situ preservation (at zoos or botanical gardens), or other emergency situations.18 In 1989 it was Kenya, supported by Western European nations (and the United States), which succeeded in persuading the CITES convention body to list the African black elephant on Schedule I, virtually halting all trade in ivory. Indeed, the entire object of the listing was to end the trade completely, and to admit of no exceptions, for fear of opening loopholes by which unscrupulous poachers, smugglers and marketers would renew pressure on African elephant herds. With the trade in ivory (irrespective of source) ended, poaching was curtailed. The treaty was thus hailed as an international law success story. But what about the villagers in Zimbabwe? Tribes that had been conserving elephant herds, and expecting the proceeds from sales of ivory harvested from those animals, were bitterly disappointed. No revenue-sharing was forthcoming because the international trade in ivory was banned. A technological solution—something that would distinguish ivory legitimately harvested in Zimbabwe, as opposed to illegally poached in Kenya—was deemed

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by the CITES treaty body as being impossible, impractical, or worse, the thin edge of the wedge to resume a wholesale ivory trade. Zimbabwe’s repeated requests to CITES to de-list the African elephant from Schedule I, or (at a minimum) move it to Schedule II, were denied, although very occasional sales of stockpiled ivory were permitted.19 With the economic incentives for the careful and responsible husbandry of elephants largely eliminated by CITES, poaching resumed in Zimbabwe, even before the current political and economic troubles in that country accelerated. In any event, CITES’ trade strategy for environmental protection has been replicated in a vast network of agreements, ranging in subjects from sales of tropical timber to high seas fish stocks. But this parable of Zimbabwean elephants shows that a “one size fits all” approach to species conservation and environmental protection is intensely problematic.20 Although sustainable use of resources has become a catch-phrase of sorts in contemporary globalization discourse, 21 the Zimbabwe model of community involvement, stakeholding, and economic incentives should have been treated more favorably by CITES. Indeed, it appears that Zimbabwe’s advocacy of a “bottom-up,” private property, partitioning approach to a common resource—and not a “top-down,” command and regulation model—was a source of international criticism, not praise. In this respect, international law’s engagement with the global commonage is as much about philosophical differences as with technical details.

Medicine Man: Rainforest Drugs and Stories as Property In the 1992 motion picture, Medicine Man, a romantic vision of scientists discovering flowers with medicinal purposes in the rainforest is offered in the form of Dr. Robert Campbell, played by Sean Connery.22 In an isolated part of the rainforest, the gruff and misanthropic Dr. Campbell befriends an indigenous tribe of peoples, long undisturbed by modern civilization. But that is about to change. Government infrastructure projects, avaricious gold miners and oil drillers, as well as public indifference are about to doom forever the way of life of these peoples. The uncontrolled degradation of the rainforest environment is symbolized by a road being hacked out of the pristine forest, literally in the path of the tribe’s settlement and foraging grounds. Campbell seeks to prevent the construction of the road leading through a grove of trees bearing a peculiar plant with unique properties, known only to the indigenous tribe through generations of oral tradition. He is unsuccessful. The road is built, and the grove is destroyed. In this parable of progress, man’s best hope for a cure for one of its gravest ills—cancer—is literally paved over. The tribe is dispersed, along with its traditional knowledge of rainforest medicines. Dr. Campbell’s tale involves some of the most basic archetypes of the global commonage. Tropical rainforests used to occupy much of the equatorial belt of the planet and such countries as Brazil, Congo, Indonesia, and

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Malaysia account for the largest tracts of these forests (some 35.1 million square kilometers). They are among the most highly biodiverse ecosystems on the planet. That means that there is a greater abundance and diversity of plants and animal species in a cubic yard of tropical rainforest than in a square kilometer of arable farmland in the United States or France, or in the vast tundra of Canada or outback of Australia. Tropical plants and animal parts often have medicinal properties, and, indeed, some of the great pharmaceutical discoveries of modern times have been derived from these sources.23 Aspirin—made from the bark of a tree found originally in the Amazon—is truly the wonder drug that works wonders. (One quarter of all prescription drugs in the United States contain active ingredients derived from native plants, and sales of these drugs exceeded $23 billion in 2000. 24) And, as if all of this was not enough, the concentration of plants and trees means also that tropical rainforests make large net contributions to the planet’s oxygen supply. The rainforests are also home to the largest groupings of preliterate, Neolithic peoples in the world. Physically isolated from the outside world and unconnected by linkages of migration or trade, these indigenous tribes of the Amazon, Congo Basin, Borneo, and New Guinea have been left undisturbed by the modern processes of globalization. Until now. Tropical rainforests represent a unique form of global commonage. Because they are situated within established nation-States, there is no option of internationalizing the resource (such as has been attempted with the high seas, Antarctica, or outer space). No country, of course, will willingly agree to divest itself of sovereignty over ostensibly valuable natural resources. But how, then, can the international community promote the rational use of a unique resource that could be essential to the health of the entire planet— whether as a supply of oxygen and sink for global warming carbon dioxide emissions, or as a source for disease-fighting drugs? For the international community at large, the most rational use of the tropical rainforest and its resources would be in situ preservation. This would mean creating forest preserves, programs for studying indigenous flora and fauna, banning extractive industries and lumbering in the forests, and strict protections for indigenous peoples living in the rainforest. This all sounds wonderful in principle. The problem is that the most rational course for tropical rainforest nations, in terms of immediate economic development and to address mass poverty in these countries, may well be to clear-cut the forests to make way for farms and ranches and new communities. With the robust global markets for tropical crops and livestock raised in former forest lands (think of coffee, cotton, and beef), it is not surprising that tropical countries would regard this as “highest and best use” for this land. Indigenous tribal peoples—often regarded as unproductive and violent—will, under this model of development, be relegated to the equivalent of reservations and prevented from free-ranging over wide tracts of forest. In short, for countries like Brazil, Congo, and Indonesia, the rainforests are simply a repository of resources—land, lumber, and minerals—to

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be emptied at will. That is why tropical deforestation has proceeded at such an alarming rate, with almost 50 hectares of forest being destroyed around the world on average, every hour, or nearly 100,000 square kilometers annually. Nearly 30 percent of all tropical rainforests have been cleared since 1950.25 Tropical deforestation thus illustrates that the calculus of rationality in resource management can lead to widely divergent outcomes, depending on who makes an economic, legal, or moral claim to the resource. Or, putting it another way, tropical rainforests are regarded by host countries as a kind of “anti-commons,”26 a resource that is owned by one party or entity, but which has no present incentive to sustainably or responsibly manage it. The net effect is the same as Garrett Hardin’s “tragedy of the commons”: the resource is progressively degraded and destroyed over time. What can international law possibly do to address this unexpected sideeffect of globalization? Rationality—as a surrogate for progress in the development of international law norms—can thus be seen to conflict with principles of cooperation, which tend to promote lowest-common-denominator diplomacy and “race to the bottom” economics.27 The trade/environment conflict is one reflection of this paradox. Likewise, rational outcomes are not necessarily fair ones. Questions of global distributive justice may well be on a collision course with other international law objectives. Indeed, some UN bodies have already observed that treaty protections granted for intellectual property rights (such as patents on seed varietals or copyrights on folklore produced by indigenous peoples) are in direct conflict with human rights to food, health, cultural identity, and scientific progress.28 The development of intellectual property (IP) rights is a new trend in the international law of the global commonage. But it is premised on one of the central tenets or strategies for managing common resources. To give actors the necessary stake or interest in sustainably managing such public goods, it is necessary to privatize or partition the asset. In order to encourage tropical countries to responsibly preserve their rainforests, one approach would be to vest in these countries some sort of property right in any drugs or innovations developed from native plant or animal species, found only in those forests. Armed with such rights, rainforest States can then sell licenses to, or enter into joint ventures with, pharmaceutical or high tech companies from industrialized nations that might be interested in “bioprospecting” activities in those countries. So, if a cure for cancer or AIDS is derived from a little-known orchid or tree frog from the rainforest, the vast proceeds will be shared between the host country which allowed the harvest of that flora or fauna and the pharmaceutical company that develops the drug. Just as with Zimbabwe’s approach to “privatizing” elephant herds and granting a property interest to native peoples, granting IP rights to in situ countries for native plants and animals has proven quite controversial. The 1992 Convention on Biological Diversity29 was the first international instrument to offer recognition of a host State’s right to regulate and license its

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own plant and animal resources. But major pharmaceutical companies in the United States, Europe, and Japan objected to these provisions because they felt that they gave too much of an advantage to tropical rainforest States in licensing, bioprospecting, and joint venture negotiations.30 That is why, for example, the United States has not fully ratified and implemented into domestic law the Biodiversity Treaty. This attitude was reflective of what has come to be regarded as a peculiarly “Northern” view of IP rights. In this iteration of the North-South dialogue or the tension between developed and developing worlds, IP rights are something that only an innovator can lay moral claim to—the pharmaceutical company that spends decades and millions of dollars in researching a new drug. In this vision, the in situ State of the plant or animal resources that may make such a discovery possible is really no different from the country that just happens to have large natural gas or oil reserves. The host State pretty much has to accept the offers of outsiders to exploit and manage their resources. Indeed, with bioprospecting, companies and governments from the developed world have often preferred to illegally export a valuable piece of flora and fauna, rather than subject what could be a valuable asset to control by the host State. (In the early twentieth century, British and American officials smuggled native rubber plants out of Brazil in order to gain a national security advantage in the manufacture of rubber products, including tires for cars and tanks.) So while a “Northern” view of IP rights would seem to preclude the patenting of a valuable biological resource found in a plant or animal—as distinct from a drug or product made from a species—“Southern” attitudes have led to a rethinking of the international system of protection for innovation.31 The lynchpin of the “Northern” system of IP rights is the 1883 Paris Convention on the Protection of Industrial Property,32 which enshrines the principle that States Parties should establish patent systems and then give reciprocal recognition and enforcement to patents issued in other nations. The World Trade Organization’s (WTO) 1994 agreement on intellectual property rights,33 allowed for member States to exclude from patentability plants, animals and certain biological processes. That allowed tropical rainforest countries to refuse to give recognition to northern patents that purported to grant IP rights in flora and fauna native to their countries. This tactic would essentially nullify assertions of “Northern” property rights over these resources. An alternative strategy has been proposed by some rainforest and biodiverse countries, a proverbial “fighting fire with fire.” That would be to use a “Northern” conception of IP rights and to issue patents in order to protect the knowledge and techniques of indigenous peoples and their uses of native plants and animals.34 A 1989 International Labor Organization (ILO) treaty purports to give indigenous peoples access to the legal means to protect their native knowledge.35 The key to the legitimacy of this approach is that what is being patented is not the biodiversity itself, but, rather, the human applications of those genetic resources—the very essence

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of innovation and “northern” patent systems. After all, if Amazonian tribes or African pygmies have used native substances for medicinal remedies for decades or centuries, why should avaricious drug companies be allowed to “free ride” off that innovation simply by appropriating that technology and mass-producing it? The battle over rainforest resources is thus as much about the interconnections between trade regulation and environmental protection (something already considered with African elephants), as it is about widely divergent conceptions of property rights and innovation. To some degree, the debate is about privileging forms of culture. Who is really more worthy of reward: the village shaman who preserves an ancient folk-way of healing, or a scientist (such as Dr. Campbell) who explains, refines, and mass produces a drug for global consumption? And while issues of globalization and culture will be considered further in chapter 11, it is worth considering here the implications of this question in the management and conservation of the global commonage.

Lost and Found in Cyberspace The next big thing with the global commons is certainly not a place, and it may not even be a thing. If aviation was the defining technology of the early and middle twentieth century, and the biotech revolution and human genome was the crucial technology of the late 1900s, then surely the Internet will be regarded as the defining innovation of globalization in the early twenty-first century. And, make no mistake, the Internet may well be regarded as the signal feature of an interconnected and interdependent world, one where commerce is as much based on an information economy than on the production of goods or the marketing of services. From its inception in the 1970s (as part of a U.S. military research project), the Internet has morphed into the World Wide Web and other forms and applications. Some of these are, at once, pedestrian and revolutionary— such as e-mail. Web sites can communicate information, advocate policies, and make markets. While Internet access remains limited in some nations, especially in the developing world, the “digital divide” between North and South, rich and poor (in almost all countries on the planet) may well be narrowing. In short, the Internet provides the ultimate cachet of a mobile global society (considered in the last chapter): the nearly instantaneous and reliable movement of data and ideas across borders.36 The Internet is also assuredly a global commons. In fact, it may be the paradigmatic shared resource that is both a res nullius and res communis, for both nobody and everybody owns the Internet. Governments, corporations, and individuals control the computers upon which the Internet resides through Web sites and servers. Telecommunication companies may own the hardware “backbone” of the Internet—the switchers, routers, and fiber optical cable upon which data moves through various systems. Intellectual property regimes may dictate the use of domain names, search

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engines, e-commerce, and other attributes of the World Wide Web. When taken altogether, no individual country, company, or person can lay claim to even the smallest part of the global architecture of the Internet.37 Cyberspace, by virtue of its very inchoate nature, is an inexhaustible resource (whereas tropical rainforests and elephants are not). Even so, cyberspace has to be tamed. For these reasons, it has become popular to describe cyberspace as the equivalent of some metaphorical “Wild West,” where no law can command obedience, and only coercion prevails. But that would be a profound mistake. It may well be more accurate to consider the Internet in terms of the analogies to other forms of global commonage. Maybe the condominium regime of Antarctica is an attractive model, what with the shared responsibilities and prerogatives of the States most closely connected with managing the resource. Cyberspace, unlike Antarctica, is an intensely private place, in the sense that individuals and commercial activities, and not governments, predominate. Likewise, while outer space (including such celestial bodies as the moon, asteroids, and planets) is supposed to be a true res communis—the common heritage of mankind—we are not yet at the stage of seeing private, commercial exploitation of that common resource, as distinct from government-sponsored research and exploration. Perhaps the most apt global commonage analogy to cyberspace is also the oldest and largest: the high seas. States have never enjoyed a monopoly on power over navigation and exploitation of ocean resources. Private vessels have always plied the oceans, although ostensibly under the regulation of a flag State. Commercial navigation remains the leading use of ocean resources, followed closely by offshore oil and gas production. In the same way, commercial and private uses of the Internet are likely to be dominant. But with freedom of the high seas, as with freedom of both publicity and anonymity in cyberspace, comes the terrible risks of lawlessness. Piracy has always been the scourge of the oceans, and as anachronistic as it may sound, it remains a problem to this day. The hackers, spammers, child pornographers, copyright violators, and fraudsters that inhabit cyberspace are the modern equivalent of the pirates of old. As with many things in life, with great freedom comes great responsibility, and perhaps the greatest challenge for any global commons is the balancing of individual autonomy and creativity (which, in large measure, give the resource its value) with the international community’s security. For these reasons, jurisdiction in cyberspace has created doctrinal difficulties for international law. International law rules have always attempted to demarcate the outer limits of a State’s ability to prescribe rules, adjudicate disputes and enforce rights in regards to matters of interest to it. These justifications—or bases—for jurisdiction have enjoyed a remarkable recognition and observance as customary international law for over two centuries, but they have recently undergone some significant changes. In the face of such a phenomenon as the Internet, they will assuredly be challenged even more.

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For example, the two crucial grounds under which a country has exercised jurisdiction are territory and nationality. One of the fundamental tenets of State sovereignty is the idea that a nation may exercise jurisdiction over persons, transactions and events occurring within its territory. As Chief Justice John Marshall noted in 1812, “The jurisdiction of a nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.”38 Under this reasoning, only the territorial sovereign can decide to exercise jurisdiction over a matter arising within its borders. Consistent with international law, virtually every nation exercises nearly complete jurisdictional competence on the basis of territoriality. This territorial conception of both sovereignty and jurisdiction has little relevance to cyberspace.39 Where, after all, does a Web site reside? Should it be deemed to be present on a computer server, subject to the jurisdiction of the country where it is located? Alternatively, from whence should a defamatory e-mail be found to have issued? The very nature of the architecture of the Internet and Web make it often impossible to trace bad acts to particular localities. Likewise, the second principal basis of jurisdiction recognized in international law—a State’s control over its own nationals— only allows for certain kinds of enforcement actions against conduct detrimental to the good order of cybersociety. The ability of “netizens” to make anonymous postings of content on the Internet, to hack computers from remote sites, or to create nasty computer viruses in the comfort of their own den often militate against the apprehension and prosecution of malefactors.40 Indeed, some assertions of national jurisdiction over the Internet seem to be contrary to the very values and aspirations of the resource. Cyberspace has been modeled on uniquely American attitudes about the constitutional protection of free and robust speech, values that are not often shared in other polities. British defamation law places the burden of proof on the speaker to prove that their statement is true, in order to avoid a libel prosecution. Is it possible that a statement appearing in a local Peoria, Illinois newspaper, but available to be read on the Web, can be actionable in the United Kingdom? Germany has laws against fascist propaganda. Should that mean that Germany can prosecute Americans who mount a neo-Nazi Web site in Idaho, viewable in Germany? France has laws against making commercial solicitations in languages other than French. Does that allow French officials to prosecute a parallel Web site maintained by a U.S. university (in English only) that happens to reside on as server in Paris? China has laws against political dissent. Can that permit the Chinese government to censor Falun Gong agitators, Tibetan nationalists, and pro-democracy intellectuals who are operating in Hong Kong, Taiwan, London, or San Francisco?41 Many countries have purported to exercise both criminal and civil jurisdiction over nonnationals engaged in Internet conduct, even outside their boundaries. Although this may be consistent with the truly global reach of this new medium, such assertions of jurisdiction are tantamount to the

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declaration of a new species of “universal offense” analogous to that exercised over pirates, war criminals, and those who commit genocide. But persisting in such claims of control over Internet offenses may well be naive and dangerous. In a kind of inversion of the “tragedy of the commons” that has been discussed in this chapter, this sort of regulatory “capture” of cyberspace by all governments, would have very much the effect of every port State asserting its rights to impose construction, design, equipment, and manning (CDEM) rules on visiting vessels. Ocean shipping would grind to a halt. In the same way, a “race to the top” with regulation of the Internet would kill the utility of the resource. A more promising avenue for managing cyberspace is to focus on what has come to be called Internet governance. “Governance” is not the same thing as “government,” and for cyberspace what has been discussed is a system of self-regulation through voluntary codes of conduct entered into by the private entities that can best control the resource: Internet service providers (ISPs), domain name registrars, and the quasi-administrative task forces that control cyberspace, including the Internet Corporation for Assigned Names and Numbers (ICANN). The Internet Engineering and Research Task Forces (IETF and IRTF), provide governance for the technical and engineering aspects of cyberspace. This has proven important as the Internet has been “internationalized” from its beginning as a project of the U.S. Department of Defense, and there have been concerns raised that this valuable global public utility’s infrastructure should not be controlled by one nation.42 Governance in cyberspace has also reached to the settlement of conflicts between Internet actors. Most significant have been domain name disputes, where one entity has attempted to lay claim to a Web address featuring a commercially valuable trademark. These questions have arisen because each toplevel domain name (such as “.com” or “.uk” or “.org”) can register its own addresses, and each will be equally accessible on the Web. There is thus keen competition between domain name registrars. Unscrupulous parties—known as “cybersquatters”—will register domain names with famous trademarks or symbols (think of “www.cocacola.us” or “www.whitehouse.com”), in order to exact payments from the rightful owner or to deceive unwitting Web browsers and consumers. Cybersquatting has been addressed with a very successful system of dispute settlement panels sponsored by ICANN and the World Intellectual Property Organization (WIPO), yet another UN specialized agency.43 These panels offer speedy resolution of conflicting claims to domain names. The disputants and lawyers never even see each other; all proceedings are online! Cyberspace is thus the next frontier of the global commonage, and likely to be much more commercially relevant and lucrative, and so much harder to manage, than such “physical” places as the deep seabed (more on which in the next chapter) or outer space (see chapter 12). The central dilemma for international lawyers and for policy-makers in dealing with these resources and opportunities is to avert the “tragedy of the commons,” while, at the

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same time, obviating the extremes of overregulation and overpartition (each of which can also destroy the practical use of the commons). The central utility of today’s globalization—whether it be the pleasures of ecotourism, or the availability of breakthrough drugs, or instantaneous communication through the Internet—will depend on world law’s success with these and other, as yet unrecognized, issues.

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n considering the legal controls on planetary mobility and of the global commonage, the broad contours of contemporary world law start to take shape. There are distinct approaches to international regulation over conduct that transcends national frontiers. Depending on the policies and incentives that undergird the activities being controlled, the international community can seek to lightly or heavily regulate, and the body of rules that control that conduct can either be thick or thin. Likewise, regulation can be delegated to national or sub-State actors, to private or nongovernmental organizations (NGOs), or to international institutions. In short, international law has developed many ways to fashion effective regimes to regulate transnational affairs. This chapter examines one particular “style” of international regulation: when the international community imposes limits on what otherwise would be the wide discretion of domestic entities to control transnational conduct. Known colloquially as “disciplines,” these controls act as a way for national leaders to accept international standards and to try to avoid countervailing domestic political pressures.1 Many of these disciplines are trade-related, but others are found in the fields of environmental protection, labor rights, and resource exploitation. These will be considered in turn. The common thread that runs through them all is that unpopular political or economic initiatives can be “elevated” to the international realm for determination by transnational processes and institutions, thereby avoiding the patch-work quilt of regulation that would occur if independent and atavistic States were to attempt to control the same conduct.

Where’s the Beef? As has already been mentioned, at the center of the current global trade network is the World Trade Organization (WTO). After the experience of that singular deglobalizing event of the last century—the global Depression of the 1930s, which was brought on in large measure by rampant trade protectionism in Europe and the United States—plans were made at the conclusion of World War II to create a new global trading regime. The original idea was to establish an International Trade Organization (ITO) that would serve as a central clearinghouse for the liberalization of import rules; that is, reduction of tariffs and quotas and other nontariff trade barriers. But this ambitious plan

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was a political nonstarter in 1945. Instead, an interim trade agreement was contemplated, which later came to be known as the General Agreement on Tariffs and Trade (GATT). The GATT regime persisted for more than fifty years, until 1994, when (at long last) the institutional framework originally contemplated for international trade regulation was achieved with the creation of the WTO. The reality is that the substantive trade rules of the new WTO are largely identical to those of the earlier GATT regime. That is why the world trade order is sometimes referred to as “GATT/WTO.” The heart of the GATT system was simply a multilateral version of the U.S. most-favored nation (MFN) clause—States are obliged to extend the same trade preferences to all countries that they give to their most-favored trading partners. All GATT signatories thus got the advantage of the low tariffs and other rules concluded at the successive sets, or “Rounds,” of negotiations. With the establishment of the WTO, these negotiations to reduce tariffs, quotas, subsidies, dumping, other trade barriers, and abusive practices are now held on a regular basis. The key elements of GATT/WTO are substantive trade equality and dispute settlement mechanisms. The MFN requirement of GATT Article I ensured a level-playing field for parties. At the same time, GATT/WTO featured very precise rules on other subjects. Quantitative restrictions on imports (quotas) were banned under Article XI, although there were always lingering restrictions on products in the agriculture, textile, and national defense sectors. The ultimate feature of GATT/WTO is its ability to fairly resolve trade disputes. This had been a constant criticism of the old GATT system, as trade abusers were often able to avoid sanctions. Indeed, to the extent that GATT attempted to avoid unilateral trade retaliations and sanctions, it was often unsuccessful. The new WTO has some institutional machinery to resolve this problem. Dispute settlement panels are available for expeditious trade litigation, with an appellate review process. The panel decisions are now self-executing and do not require political approval by the ministerial conference (where, previously, the trade malefactor could simply veto sanctions against itself). There are a few areas, however, where GATT/WTO does not purport to regulate. For example, nothing in the global trade regime is contrary to commodity agreements, where importer and exporter nations for a particular product consult and influence prices and supplies. Also, Article XX of GATT/ WTO allows trading nations some exercise of discretion for trade restrictions in certain areas or in accordance with special sorts of domestic legislation. The global trade regime has been bitterly criticized by environmental advocates who maintain that it unnecessarily punishes the unilateral acts of environmentally progressive nations. When the United States charged import restrictions on tuna caught by foreign fishermen with insufficient regard for the safety of dolphins (which swim with tuna and are often killed when nets are thrown), the affected nations sought relief before the institutions of the GATT and, later, the WTO. Article XX was invoked by the United States in

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support of its environmental legislation affecting tuna and shrimp imports, but this argument was rejected by WTO panels. In a series of decisions, 2 GATT/WTO panels have ruled that nations may not unilaterally impose trade restrictions on tuna caught with dolphin (or shrimp caught with turtles), nor may they unreasonably require heightened environmental protection as a condition for trading in their markets (such as rules against certain fuel additives). Undoubtedly, the best example of the collision of environmental concerns with free-trade disciplines, as well as the conflict among divergent ideologies of science and regulation, was the beef hormone dispute between the United States (with Canada) and the European Union (EU). At issue was the proper construction of WTO Article XX, as well as the Sanitary and Phytosanitary (SPS) Measures, adopted by the WTO in 1994.3 EU directives prohibited the importation into Europe of meat, meat products, or any foodstuff that had been derived from cattle treated with either synthetic or natural growth hormones. These drugs, usually put into feed, are supposed to promote quick weight increases for the cattle and improve their overall health. EU nations objected that this was a form of food adulteration, and that they had the right to prohibit the importation of this meat in order to protect the health of European consumers. North American cattle-growers and governments responded that this was merely a thinly disguised “nontariff trade barrier”—a pretext for European ranchers to keep out of their market cheaper, higher quality, North American meat. And by no means was this argument academic; at issue was an annual market exceeding $250 million.4 The European ban on hormone-treated beef was part of a long tradition of “progressive” nations limiting food imports deemed to be a threat to public health, but, just as often, presenting a greater economic threat to local interests. Food and drink, after all, are inextricably linked to national culture—and national pride.5 Japan, for years, prohibited the importation of (relatively) cheap rice from California, making the spurious claim that it was unhealthy for delicate Japanese digestive tracts. Germany and Belgium also banned the import of American “light” beers, with the argument that it was not really beer at all. However meritorious these contentions might be, it stands to reason that these trade disputes would not arise but for the fact that local consumers are actually purchasing cheaper foreign substitutes. Japanese rice-growers and German brewers thus sought to pressure their governments to ban these imports, ostensibly hoping to protect their own nationals from themselves. The purpose of the WTO’s SPS Agreement was to discipline these food safety measures, particularly where the bans are not necessarily discriminatory against foreign imports (as the Japanese and German prohibitions certainly were).6 The SPS seeks to use multilaterally agreed, harmonized standards for food safety, prepared by an independent intergovernmental commission known as the Codex Alimentarius, a joint venture of the World Health Organization (WHO) and Food and Agricultural Organization

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(FAO), both UN specialized agencies. The Codex’s responsibility is to establish advisory multilateral “best practices” for food composition and handling.7 After substantial debate, the Codex had approved the use of both the synthetic and natural growth hormones objected to by the EU. Nevertheless, the EU persisted in its ban, asserting that it had the right to impose more stringent food safety standards than those adopted by international harmonization bodies. After all, EU officials observed, such harmonization bodies tend only to reach “lowest common denominator” positions, allowing that amount of regulation that the most lax jurisdiction cares to adopt,8 in much the same way that the International Maritime Organization (IMO) has only been able to establish a “floor” for vessel operating standards (see the discussion in chapter 7). The WTO’s dispute settlement mechanism was invoked, and it was ultimately concluded that member States’ SPS measures were required only to be “based on” international standards, but that there was no ironclad requirement that they fully “conform” to those principles. Additionally, the WTO held that the “burden of proof,” so to speak, was on the country objecting to the imposition of trade restrictions. That would mean that a nation’s assertion of enhanced food safety measures would be given presumptive weight, unless the challenger proved otherwise.9 In a significant holding in the WTO panel decision, it was indicated that a country’s attempt to impose standards more stringent than international norms would be a violation of the SPS and trade disciplines, unless such measures were supported by a scientific justification. And, such a justification had to be based on scientific evidence—not just the policy or economic preferences of the relevant State. The WTO panel held that risk assessment was one way to present a scientific justification. But the EU’s purported claim that any trace of hormones (whether natural or synthetic) in consumed beef was injurious to human health, and therefore was a justification for a ban, went too far. In this instance, using a “precautionary principle”—when in doubt, adopt the safest course for the protection of human health—was inconsistent with trade disciplines.10 The weight of the science was just too much for the EU’s legal argument to bear, and the WTO finally concluded that the ban on hormone beef violated international trade rules. The invocation of ostensibly neutral and objective scientific evidence as both an adjunct to, and check on, international regulation raises profound questions as to the structure and form of global law-making. Science, even when presented as empiric results from laboratory or field tests, cannot always be divorced from economic realities or policy preferences. Scientists may be able to quantify the risk in any human activity, but determining how much risk is tolerable or acceptable in light of known data is usually a decision best left for policy-makers or the marketplace. Besides, the frontiers of scientific knowledge are always a moving target. In 1998, when the Beef Hormone decision was handed down by the WTO, our understanding of the long-term health effects of consuming hormone-treated beef may not be as sophisticated as today. We may well think that decision was properly made at that time, in the same way that the WTO was correct in upholding France’s ban

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on imports of asbestos (a known agent for respiratory ailments and cancer),11 and that the entire international community was justified in blocking imports of beef products contaminated with “Mad Cow disease.” When one links trade discipline with scientific evidence, it is bound to complicate both the development of consistent trade rules and the search for scientific truth.12 The other difficulty with the Beef Hormone decision is that much recent international regulation to promote human health or to protect the environment has been made by progressive States, with the international community following behind. The WTO’s requirement that environmental or safety restrictions on trade can only effectively be imposed multilaterally may delay some needed innovations. The process of reaching consensus through such harmonization bodies as Codex Alimentarius may well take years. However, it will ensure that, once consensus is reached, effective international enforcement through global trade disciplines will be available.

Double-Standards As has already been noted, GATT/WTO features a number of provisions (including Article XVII) that attempt to treat developed and developing nations in different ways. A rule adopted in 1979, for example, allowed developing nations to continue with government subsidies for export commodities or other products, a practice that would be impermissible for developed States. GATT/WTO’s rules against “dumping” (the practice of one nation temporarily selling goods at below cost in another State in order to later eliminate competition) have been unevenly applied to developed and developing nations. The most problematic application of this disciplinary dissonance has been in the field of international environmental regulations, specifically as regards the protection of the atmosphere. This would be the ultimate in global commons, because all nations, presumably, would have a stake in the integrity of the planet’s atmosphere—as a source for air, as a shield from harmful radiation from space, and as a moderator of climate patterns. Each of these functions of the global atmosphere are being degraded by the presence of new pollutants, substances that obviously observe no political boundaries as they circulate around the planet.13 How the international community confronts the problem of defining and confronting forms of pollutants has already been discussed in chapter 7 (in the context of exotic species). Once the decision is made to identify something as pollution, and to control it, that is just the beginning of the battle. For at odds are two very different approaches to qualitative environmental standards. One is to set precise emission limits; for example, the tons of sulfur dioxide (SO2) or nitrogen oxide (NOx) belched by smokestack industries. The other tack is to set targets of environmental quality. So if SO2 causes “acid rain,” then such a target might be to increase the amount of healthy forests that could otherwise be adversely affected by that kind of pollution. Both of these approaches have been employed in international environmental law.

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Emission controls have been employed to combat acid rain (long-range air pollution), ozone depletion, and global warming (caused by carbon dioxide (CO2) buildup). For each of these three problems, international action began tentatively.14 Usually the first step was the negotiation of a “framework accord,” which articulated a basic set of goals, created the means of collecting scientific data, and established a rudimentary institutional structure (usually annual or biennial meetings of the parties). Such agreements included the 1979 Convention on Long-Range Transboundary Air Pollution, the 1985 Vienna Convention on the Protection of the Ozone Layer, and the 1992 UN Framework Convention on Climate Change. The next step in the process—usually within a few years—is the negotiation of precise emission reductions by States Parties. The 1987 Montreal Protocol directed reduction of ozone depleting chemicals (ODCs), substances that degraded the earth’s protective layer of ozone (which blocks out harmful radiation from space). Indeed, the Montreal Protocol has been repeatedly updated and strengthened in order to lead to the virtual elimination of all ODCs.15 Likewise, the 1997 Kyoto Protocol set a 6 percent reduction by States of outputs of “greenhouse gases” (such as emissions from automobiles, “dirty” industries, and other sources) from 1990 levels—this to be achieved by 2012. Closely analogous to qualitative disciplines for pollution prevention is the regulation of hazardous activities through permitting schemes. Typically an international convention would identify an activity (or range of activities) that might potentially have dangerous effects, classify those consequences, and then impose review and permission procedures. A paradigm of this approach was the 1972 London Dumping Convention that requires that States Parties scrutinize proposed ocean dumping of different kinds of substances. Depending on whether the material is to be found on one of three lists—“black” (prohibited altogether), “grey” (allowed, but with substantial restrictions), or “white” (allowed, with few or no restrictions)—a permit would be granted. The most ambitious plan of this ilk is to be found in the 1997 Kyoto Protocol, which set forth a scheme for tradable permits in greenhouse gases. Under this system, each nation would be allocated a set amount of “rights” to emit CO2 and other gases. Those nations that quickly imposed domestic restrictions on energy consumption, or which grew more forests to counteract warming, or which developed new technologies to address these issues, would not use all of their rights. Such countries could then market their tradable permits to more profligate States and reap the profits. Over time, the total number of rights would be decreased, thus moving the entire world into compliance with the internationally set targets. How well this scheme will work remains to be seen. The exact modalities are being negotiated, and there remain substantial objections from many developed nations (including the United States) which produce most of the world’s global warming gases. One point of controversy about these specific agreements (which have been subject to constant updating and amendment) is that the emission standards are

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unevenly applied. Known as a “double-standard,” nations from the poorer, developing world are exempted from meeting the specified targets. Obviously, this was a critical concession made to win the approval of these nations, but it is part of a larger pattern in international environmental law–making that creates two tiers of obligations. The admonition that States take those measures as may be necessary, “to the extent practicable under the circumstances,” is viewed as a license to simply ignore these standards. Consider, for example, that the Montreal Protocol regime for ODCs expresses the international community’s desire to eliminate the use of these substances—virtually a “zero tolerance” policy. With some very limited exceptions (for certain chemicals used for life-saving medical procedures), no ODCs have been produced in developing nations since 1996. Likewise, these countries are not to export these substances to other nations. But the Montreal Protocol regime contains what some regard as a fatal exception: developing nations are allowed to not only produce and consume ODCs such as freon (used in air conditioning systems), but also many halons and bromides that have other industrial applications as solvents, refrigerants, and lubricants. Countries such as China, Brazil, and India still maintain robust ODC production capacity, in large measure to support domestic industries, especially for consumer durable goods that depend on cheaper, ODC-based technologies. After all, a home refrigerator or car air conditioner using ODCs costs about 60 percent less to manufacture and maintain, compared to one using new, ODC substitutes. And although the international community and developed nations have subsidized the technology transfer of ODC substitutes to the developing world, sometimes through direct grants administered by the Multilateral Fund for the Implementation of the Montreal Protocol, the cost difference is still such as to make the use of ODCs very attractive.16 The crucial compromise for developing nations to agree to the Montreal Protocol (and its updates) was that they would have additional time to phase-in the ban on ODCs. Indeed, at this juncture, developing nations have a virtual monopoly on the trade in these substances, despite international prohibitions on their export to developed nations.17 (That may account for why freon is the fourth most-smuggled item in world trade [when adjusted for volume and value], after cocaine, heroin, and diamonds.) The objective of the Montreal Protocol member States is to move to a true global ban on all ODCs—with no exceptions—by 2010. This may well prove to be impossible. While double-standards for ODC regulation may undermine the legitimacy of the Montreal Protocol regime, they are not, however, likely to result in severe environmental degradation. ODC production in the developing world is never likely to be high, and with the efforts already made by the North, the thinning of the planet’s ozone layer may already be reversing itself. The same happy result is unlikely to be achieved with respect to global warming. The reason is that the system put in place by the Kyoto Protocol to rollback greenhouse gas emissions, the leading cause of global warming, is already under attack by many countries, precisely because of the loopholes left for developing nations.

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At the Kyoto negotiations, and in later forums, developing States of the South made an impassioned argument that the current trends of global warming were largely attributable to the industrial and postindustrial economies of the North. Beginning with Britain’s Industrial Revolution (which started in the late 1700s), and following a trajectory across Western Europe, North America, the northern Pacific (including Japan), and ending in Eastern Europe and Russia, the affluent North polluted its way to prosperity for over two centuries. The legacy of the Industrial Revolution was smokestack emissions, increased use of non-renewable fossil fuels (especially dirty burning coal), and the proliferation of internal combustion engines and automobiles. Now that this bequest has been (at least ostensibly) connected with global warming, developing countries of the South argued that they should be relieved from the most onerous duties under the Kyoto Protocol, especially the requirement of rolling-back CO2 emissions to 1990 levels. This essentially would have the effect of freezing preindustrial or early-industrial economies of parts of Latin America, Africa, and Asia at those levels. Unless those economies make a jump of prosperity to service-based economies (which would make them dependent on their more affluent neighbors) or to postservice, information technologies (which is highly unlikely without a cadre of highly skilled labor), these States would be forever condemned to poverty. It is no wonder, then, that the Kyoto Protocol effectively exempts 130 countries from its strictures. These countries—a roster of which includes China, India, Brazil, and Mexico, having some of the largest domestic populations on the planet—are not obliged to meet specific CO2 emission targets.18 Obviously, as these developing countries enter into full industrial phases—with the consequent increase in power production, industrial emissions, and automobile pollution—greenhouse gases and global warming will cease to be a “Northern” problem, and, instead, become one largely generated by “Southern” economies.19 Among many other reasons, the United States has refused to sign the Kyoto Protocol because of stated fears that it would be ineffective, absent clearly stated emission targets for developing nations.20 As of this writing, the Russian government has resisted the full implementation of Kyoto because of these concerns.21 The Montreal and Kyoto protocols reveal a pathology common to an assortment of international regulatory designs, especially those dependent on the disciplining effects of international rules on domestic regimes. International environmental law–making will only be as strong and vibrant as domestic enforcement. International environmental protection is dependent on domestic monitoring, regulatory, and oversight capacities, far more than other areas of legal regulation. When the nominal participation of developing nations is procured by delaying (or deferring indefinitely) the effects of the regime on those countries until some date later to be determined, the essential legitimacy of the regime is undermined. This is, of course, diplomacy at its best—or worst—depending on the observer. Reaching consensus about disciplinary regimes often depends on this sort of “constructive ambiguity” about the actual impact of rules on the sovereign

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participants. Nonetheless, when the international community rushes to establish a system of rules that has the appearance of being a viable regime, even when it does not notionally apply to two-thirds of the countries in the world, one may legitimately doubt the success of such disciplines.

International Labor Standards and Trade Races to the bottom and the plight of the anticommons constitute just one set of critiques of contemporary globalization. Others will be considered in this volume in subsequent chapters, including the proliferation of lawless forces in a world of easy movement and (relatively) weak governments, the homogenization of culture, and the power of business enterprises and scientific/technical combines. For the moment, that leaves for consideration perhaps the most controversial and emotive aspect of the calculus of trade, economic development and globalism. That is the story of how free trade can sometimes result in the loss of jobs, impoverish laborers around the world, accelerate income inequality among workers in the same country and across borders, and generally undermine the social agendas and programs of progressive and struggling governments alike. This debate, more than any other, has culminated in the most consistent outcries against the public faces of globalization: opposition (in developed countries) to job “outsourcing” and trade liberalization agreements, protests at WTO or G-8 (Group of Eight) conferences (think of the “Battle of Seattle” in December 1999 or the protests at the G-8 summit in Genoa in July 2001), and (in developing nations) violent labor strikes and increased poverty. The logic of GATT/WTO disciplines is that as trade barriers (including tariffs and such non-tariff trade restrictions as spurious health regulations (already discussed) and government subsidies) come tumbling down, the rule of comparative advantage comes into play and each nation should specialize in producing the goods and services it can most efficiently. One problem is that for some countries, especially in the developing world, these comparative advantage goods are often raw commodities, for which unskilled labor is used, and both labor costs and profit margins are low. There simply is not much of a “surplus production” that can give workers in these countries increasing wages or living standards. Even worse, in a world of frictionless capital and investment (remember the discussion in chapter 7), commercial enterprises will predictably move to the markets and jurisdictions with the lowest operating costs. For most industries—whether it is farming, mining, computer software engineering, or even the practice of law—the key ingredient to managing expenses is to lower labor costs. Businesses will relentlessly seek to relocate to the economies offering the lowest wages to workers, provided they have the requisite skills to do the work required. Even more than that, transnational enterprises will seek those jurisdictions with the lowest amount of labor regulation by governments and the weakest labor markets (such as places with no indigenous trade unions or

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tradition of worker solidarity).22 At its most degenerate, countries hungry for foreign investment will promote child labor, prison industries, or even the enslavement of indigenous or vulnerable populations.23 In this paradigmatic race to the bottom, while transnational enterprises (and their shareholders) can reap substantial profits and global consumers benefit from cheaper goods and services, workers in all countries lose ground on wages, benefits, and labor conditions. And while this phenomenon is often couched in terms of North-South competition, the fact is that workers in the developed nations of Europe, North American, and the Pacific Rim are just as likely to have their jobs outsourced and thus to be affected by these conditions. In any “race to the bottom” situation—when domestic polities cannot help but to act badly, although rationally (at least in an economic sense)—the solution that is most often proposed is the legal one of establishing a “floor” of domestic regulation, a proverbial leveling of the playing field of trade. This is, of course, a discipline in another guise. And it is really no different than IMO’s standardized construction, design, equipment and manning (CDEM) regulations for ships (discussed in chapter 7) or the Codex Alimentarius’s rules on food composition (mentioned above). In the face of worsening labor conditions around the world, as some countries in Africa, Latin America, and Asia aggressively promote the low wages their workers receive, the absence of trade unions, and the laxity of their worker protections, it has been suggested that a “floor” of minimum labor standards be adopted.24 The international community has actually been in the business of harmonizing labor regulations for quite a long time. It should be remembered that when the League of Nations (League)—the world’s first universal international organization—was created by the terms of the Treaty of Versailles in 1919 (at the end of World War I), also established was the International Labor Organization (ILO), now based in Geneva as one of the present United Nation’s specialized agencies. The ILO has a unique tripartite structure in which government-appointed delegates work with those selected by business or industrial groups (on the one hand) and those designated by labor or trade unions (on the other). In this way, all the relevant constituencies for labor regulation are assembled in one place, and (presumably) if these three groups—government, business, and labor—can reach consensus about worker protections, then these are likely to be adopted by individual countries. The conventions of ILO, like those of other UN standard-setting bodies (such as IMO and International Civil Aviation Organization [ICAO]) often take years to attract the necessary ratifications to enter into force, but are typically complied with by States Parties. The ILO has, unlike the International Monetary Fund’s (IMF) and World Bank’s “surveillance” and “conditionality” machinery, relatively weak investigatory and enforcement powers, but, otherwise, levels of compliance with ILO mandates are fairly high—assuming that countries actually agree to be bound by these treaties.25 It is notoriously difficult, though, to get countries to sign on to these labor disciplines. ILO has designated eight of its conventions as establishing

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“core labor standards.” These include two (ILO Convention Numbers 29 and 105) prohibiting forced labor, one on freedom of association for trade and labor unions (Number 87), one on collective bargaining rights (Number 98), one enshrining the principle of equal remuneration for equal work (number 100), one banning discrimination in employment (Number 111), and the last two establishing a minimum working age (Numbers 138 and 182). Notice that none of these treaties actually prescribes a level of wages or the actual modalities of working conditions. There is no such thing as an “international minimum wage.” Instead, these ILO core labor standards establish so-called “enabling rights,” a kind of legal structure in which labor and business can freely negotiate wages, benefits, and conditions that suit particular industries or trades in particular countries. As of 2008, 127 countries had ratified all eight of these treaties. (The United States, which has adopted most of these standards into federal law, has only ratified the conventions on freedom of association and forced labor.26) A nonbinding declaration by ILO in June 1998 sought to remind ILO member States that, even if they had not ratified these core conventions, they were still under a general obligation “to respect, to promote and to realize, in good faith” the principles of free association and collective bargaining, the elimination of discrimination in employment, and the abolition of child labor and forced labor. ILO’s move to break the legal logjam of “lowest-common-denominator diplomacy” and the relative paucity of ratifications of ILO treaties, is also suggestive of the putative link between labor standards and global human rights. As has already been mentioned in chapter 5, the evolution of human rights discourse in post–World War II international law circles has progressively come to include sets of economic, social and cultural rights set along side the traditional, “first generation” of civil and political rights (such as the right to be free from slavery, torture, arbitrary detention, the right to vote and express oneself, and freedom of conscience). Economic and social rights have tended to be regarded as “progressive” and “second generation” freedoms that are as much about equal opportunity and the means of achieving economic independence for individuals. Sometimes this has to involve a system of government entitlements and programs that even the most affluent of market democracies (such as Canada, The Netherlands, Norway, and Japan) are hard-pressed to maintain. In truth, there appears to be little consensus about core labor standards, even as expressed as essential economic and social rights.27 One might think that there would be an international consensus on outlawing child labor, but there is not. It is estimated, for example, that in Bangladesh 80,000 children under the age of fourteen are working sixty hours or more a week in factories, and that in India the figure is substantially higher.28 The Organization for Economic Co-operation and Development (OECD), a grouping of the most developed nations of Europe, North America, and the Pacific Rim, in its legal instruments only bans “exploitative” forms of child labor, leaving it to member States to decide for themselves when certain practices cross the line. After all, as some commentators have noted, “what appears to be

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exploitative child employment may, in fact, be merely a family’s desperate response to poverty.”29 Another significant dimension to international labor standards as a form of economic and social rights is effects on the status of women. In the developing world, gender biases in work and pay conspire to make women carry a disproportionate share of poverty because nearly 75 percent of their labor can go underpaid or uncompensated altogether.30 It has thus been noted that the dislocating effects of some forms of contemporary globalization— races to the bottom for wages and work conditions, volatile capital investment markets, and fraying social infrastructures—fall heavily on women.31 In short, the volatile combination of traditional social attitudes toward women and forms of modern, robust globalization, can certainly leave women in socially and economically more vulnerable positions than they were even 20, 50, or even 100 years ago. It thus seems extravagant and fanciful that the ILO has declared the principle of “equal pay for equal work” to be a core international labor standard. The ultimate proof of the subordination of labor rights in the scheme of trade disciplines is that there is no mechanism in international trade law to enforce even the most basic strictures, such as those against exploitative child or slave labor. Indeed, it is easier to control the trade in endangered plant and animal species (recall the discussion of CITES [Convention on International Trade in Endangered Species] in the last chapter) than it is to ban importation of products made with child, prison or slave labor. Proposals that these products be regarded as a form of “social dumping,” and thus be included within GATT/WTO’s Article VI’s disciplines on antidumping and countervailing duties, have come to naught. There are several reasons for this. For starters, Article VI contains its own “double-standard” provision, allowing that “special regard” be given to the “special situations” of developing nations when contemplating the application of antidumping measures. For their part, developed nations have traditionally viewed Article VI as merely a prohibition on price dumping.32 Besides, the idea that trade sanctions—which would have the effect of constricting trade with malefactor countries—could really benefit workers in those countries, held hostage by low wages and bad work conditions, is certainly questionable.33 Indeed, the WTO expressly indicated in 1996 that there was, so to speak, a division of labor between international institutions on this subject. WTO concluded that ILO had primary responsibility over global labor standards and that global trade disciplines generally should not be employed to effectuate such standards.34 This declaration can assuredly be seen as part of the larger context of the so-called “Washington Consensus” to advance policies that will promote high growth, which, in turn, will raise working conditions and wages. This is, of course, a restatement of the adage that “a rising tide raises all boats.” Whether this is, in fact, true as a matter of global, macroeconomic trends remains to be seen, and quite a few scholars have suggested that it cannot be, in view of the countervailing economic phenomenon of “race to the bottom” regulation of labor markets.

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In short, the use of harmonized labor standards as a means of global social engineering is a prime example of a failed set of disciplines. One reason for this lack of success is the near entire absence of political will in either the developing or developed world, North or South, for this social initiative. Developing nations obviously do not wish to have imposed against them a set of trade disciplines that may result in actual sanctions, and, after all, these countries actually enjoy substantial trade advantages by being able to undercut wages. While sentiments against the products of child and forced labor are much stronger in the developed North, it can still be suggested that Northern consumers still reap the advantages of such cheaper goods. But the primary reason for the failure of this particular form of discipline is that a “top-down” approach may simply not work in the context of labor rights. Governments have too much at stake with the current status quo and the glacial nature of international trade talks and ILO treaty negotiations is strongly suggestive of “lowest-common-denominator diplomacy” at work. A more fruitful avenue for the fashioning of truly effective adoption of international labor standards may lie, instead, in a more consumer-oriented, “bottom-up” strategy. Organized groups of consumers in developed nations are starting to insist that the garments and shoes they buy are not made in Asian sweatshops, that the coffee they drink is grown on sustainable plantations in Colombia and Indonesia where the workers are paid a living wage, or that kitchenware from China are not made by prison workers.35 Transnational enterprises, sensing which way consumer preferences are moving, are starting to adopt labor standards as part of a network of “best practices” and “codes of conduct.” In short, Northern consumers may be increasingly willing to pay more for products with the assurance that the people who make them are receiving living wages and have decent standards of living.

Deep Under the Sea If the failure of labor disciplines is about the lack of political will in the face of lowest common denominator diplomacy and races to the bottom, there are yet other ways that international regimes can collapse. One such story arises from the deliberations on the law of the sea. The Third UN Conference on the Law of the Sea (“UNCLOS III”), conducted from 1973 to 1982, was the longest-running international law negotiation ever. Thousands of delegates, hundreds of meetings, dozens of coalitions and interest groups, and a bewildering array of discrete issues vastly complicated the exercise. The ultimate goal was the drafting of a literal constitution for the oceans. This was finally achieved in the 1982 UN Convention on the Law of the Sea, or the Law of the Sea Treaty (LOST).36 This accord, now in force, is an incredibly long and detailed convention—but it is not without its controversy.

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Of greatest moment was the 1982 Convention’s creation of an international regime to govern, of all things, property rights in fist-sized lumps of hard minerals known as “manganese nodules.” These nodules, discovered by British and American oceanographic expeditions in the nineteenth and twentieth centuries, are found on the deep seabed, under miles of water, and far from shore. They are located under what are known as the “high seas,” those ocean areas that are beyond the territorial or jurisdictional claims of any country. Beginning with an innocuous enough speech by Malta’s delegate, Arvid Pardo, before the UN General Assembly in 1967, the international community became entranced with these nuggets. Estimates were tendered, suggesting that there were billions of metric tons of nodules that were commercially recoverable, worth trillions of dollars. Seeing a ready source of valuable, strategic minerals there for the taking, developing nations of the South lobbied hard for the deep seabed minerals to be declared the “common heritage of mankind.” And so it would be easy to regard international law’s engagement with deep seabed minerals as exclusively a narrative about the management of the global commons. But, upon closer review, the story may actually be more about disciplinary regimes. Because what ensued at UNCLOS III were negotiations by delegates to fashion a set of international law rules to exploit the resource of deep seabed minerals. These were later included in Part XI of the treaty. And what a baroque regime it was: complex regulatory systems including the creation of an international mining company (called “the Enterprise”), mandatory technology transfer requirements, and detailed institutional arrangements with the creation of a new, International Sea Bed Authority (ISBA).37 In addition to all of the expected elements of the New International Economic Order (NIEO) of the 1970s—a deliberate program of proposed international law reforms that was intended to benefit developing countries— there were also some hard-headed protectionist provisions in LOST’s Part XI. After all, the constituent minerals in manganese nodules (including also nickel, cobalt, and copper) are all produced on land. Indeed, the largest producers of these strategic products were what were known as the “Three Z’s”: Zaire (now Congo), Zambia, and Zimbabwe. In addition, Russia and Indonesia are major exporters of these minerals. So, as adopted, the LOST purported to promote the production of deep seabed minerals, but just not in quantities that would pose a competitive threat to land-based producers. There was just one problem with all of this. No technology existed—or has been developed—to recover manganese nodules from the deep seabed. (Robots and very, very long vacuum hoses have been proposed.) More importantly, the mineral economics are such that there has been absolutely no incentive (until just recently) to develop such proprietary technology, especially as the LOST required that such intellectual property be given away to the Enterprise.38 It was estimated that given the level of expenditure required to make deep seabed mining a reality (typically estimated as several billions of dollars per underwater mining site),39 and the uncertainty of the legal

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regime to ensure security of tenure of miners, no commercial operation would be attempted. Lastly, instead of the billions or trillions of dollars worth of manganese nodules on the deep seabed estimated in the early 1970s, the actual amount of commercial grade nodules (those assayed with sufficient concentrations of valuable metals) was found to be many orders of magnitude less. In short, the deep seabed mining provisions of Part XI of the LOST were a fiasco. They were, in large measure, the reason why initially the United States refused to sign the 1982 Convention. The most offending features of Part XI were amended in a later “Implementation Agreement,” concluded in 1994.40 Among other things, the Agreement essentially abrogated those provisions of LOST that imposed production ceilings, production limitations, participation in commodity agreements, production authorizations and discrimination among production applicants. In short, the anticompetitive features of the 1982 Treaty were wiped away in 1994, along with the mandatory technology licensing and transfer provisions that had the effect of making commercial entities in developed countries subsidize the efforts of competitors from the developing world or from the international combine known as the Enterprise. The 1994 Agreement also required that the Enterprise play on the same playing field as private corporations. Lastly, the Agreement memorialized some institutional changes in the operations of the ISBA, such that major industrialized nations (such as the United States) were guaranteed representation, and, on some sorts of decisions, an effective veto.41 As a consequence of the 1994 Agreement, the United States did sign (but has not yet ratified) the treaty. Preparations to initiate the work of the ISBA and the Enterprise (headquartered in Jamaica) are under way. Although ISBA has received applications from mining consortia to stake-out claims over various regions of the deep seabed underlying the high seas, to date not a single manganese nodule has been recovered in a commercial operation. The real lesson of the deep seabed mining regime is the dangers that come with internationalizing a resource and fashioning a disciplinary regime. Although the common heritage principle sounds alluring, it is often impractical, especially when private sector initiative is stifled. The negotiations of Part XI also illustrate the absurdities of lawyers and diplomats negotiating ahead of the curve of science, technology, and economics. The elaborate provisions of the LOST were utterly irrelevant and fanciful, and had to be later changed. While international lawyers should take pride in developing creative legal regimes, to do so in advance of practical certainties is folly. So, unlike the evolution of double-standards in environmental and labor disciplines, the failure in the deep seabed mining system was not so much one of lack of consensus or political will, as a failure of imagination and understanding. The deep seabed mining regime is hardly alone in this respect. Signatory States ignominiously rejected the Antarctic mining system negotiated in CR AMR A (discussed in the last chapter) even before entry into force when it became clear that its major premise of minerals exploitation on the

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Southern Continent was deeply flawed. Other examples of failed international law regimes will be featured throughout this volume. This is not to suggest that international law is itself a failure, but, rather, that there are practical limits on world law that must be appreciated if successful policy outcomes are to be achieved.

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having considered the signal features of contemporary globalization—the opportunities and challenges of mobility, the fashioning of rules for the global commonage, and the success and failure of regulatory disciplines—it is time now to confront those that would seek to exploit or even destroy the emerging new world order. For lack of a better phrase, let us call these individuals or entities criminals. As they are mostly non-State actors, it makes sense to refer to them in the argot of criminality, and to characterize their acts as crimes. In short, criminals are among those groups that challenge globalism by embracing its most atavistic elements. The emphasis on non-State actors is significant here. And while the phenomenon of active competitors to States for supremacy within the international system is something that will be considered in part 3 of this book (and especially chapter 13), some tentative observations can be advanced here. The phenomenon of international crime—and international criminals—is hardly something new. Whenever there has been a dynamic global economy, there have been smugglers, tax cheats, purveyors of graft, and those that would take advantage of the fiscal weaknesses of existing nation-States. But some of the conditions of contemporary globalization—particularly the easy movement of people, goods, and money—give especial advantages to those that would evade or defy the laws of individual countries or of the international community as a whole. This chapter presents a field guide, of sorts, for the new breed of international criminal. Whether they present themselves in the guise of transnational organized crime cartels, or as individuals or businesses that agree to the corrupt demands of government officials, or as insurgent groups or pariah States that finance their activities through illicit means, or as terrorists presenting the ultimate threat to today’s international order, they all possess common objectives, characteristics, and modus operandi. Moreover, international law’s response to each of these groups is typically—and quite unsatisfactorily—the same.

Organized Crime As a matter of definition, all of the criminals discussed in this chapter are organized, or else they would not present much of a threat to global order. As

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used in this section, the phrase “organized crime” should convey a somewhat narrower connotation: transnational syndicates or cartels of individuals engaged in such cross-border activities as smuggling, narcotics trafficking, human trafficking (including prostitution and the sex trade), and arms and munitions sales. Of course, each of these activities would be (and are) criminalized and punished in domestic legal systems, but it is the transnational dimension of the criminal activity that makes it so lucrative, and so hard to suppress. Transnational organized crime also engenders its own organization and operating procedures, especially dependent on avenues of commerce (to move illicit products) and to “launder” dirty money. Generally speaking, organized crime groups desire to coexist with State entities, provided that such national police infrastructures are weak and ineffectual, and the relevant government officials are readily subject to corruption (more on which shortly). Mafias and crime cartels are thus content to, somewhat parasitically, control State power, rather than to completely subvert it or outright supplant it. Nonetheless, in recent years there have been documented reports of alliances between disparate groups of criminal organizations as varied as the Russian “mafia,” Medellin cocaine cartels, and Chinese crime “tongs.”1 In this respect, organized crime cartels are just an illicit counterpart to “legitimate” transnational enterprises. Just as capital and investment can move almost frictionlessly across national frontiers (see chapter 7), so, too, can narcotics, deadly armaments, smuggled artifacts (see the next chapter), and all the money generated from these activities. Because of the illegal nature of international organized crime, it is obviously difficult to quantify the problem. For global drug trafficking—especially cocaine from South America, heroin from Central and South Asia, and synthetic “designer” drugs (such as methaphetamine and ecstasy) from Europe and the United States—estimates have been that the trade generates as much as $100 to $300 billion per year. This is compared to around $9 billion netted from transnational car theft rings, and a (relatively) paltry $7 billion from smuggling people (although this figure excludes the sex trade). The illegal trade in arms and munitions may well generate profits in excess of $10 billion per year, while trafficking in stolen or illegally excavated art works or in regulated commodities (think of freon and animal parts, both discussed in the last chapter) may be somewhat less.2 Transnational organized crime is hard to suppress in the same way that transnational business is hard to regulate. One reason is that the traditions of State sovereignty, often manifested in formalistic rules of jurisdiction, frustrate effective transnational law enforcement. The territorial principle of State jurisdiction stipulates that a country has absolute authority over the individuals, relations, transactions and events occurring in its national territory. One country’s criminal process cannot extend to another nation. And even though a nation may exercise criminal jurisdiction over the conduct of its nationals abroad, that can often raise jurisdictional conflicts with other States.

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The way in which States avoid jurisdictional conflicts is through formalized cooperation, often concluded under the rubric of Mutual Legal Assistance Treaties (MLATs). These are typically procedures recognized and employed by countries to request aid from other States’ executive or judicial authorities in the pursuance of criminal or civil procedures and investigations.3 For example, courts in one nation may apply for assistance from the tribunals of another State by dispatching a “letter rogatory” (sometimes also called a “letter of request”). These will often be respected and complied with, at least to the extent that local law does not affirmatively bar the request for cooperation. Mutual assistance does have its limits, however. Countries will often agree to cooperation in criminal investigations, especially now that some criminal enterprises are organized and often transnational. Such mutual assistance treaties often contain a clause exempting cooperation if the matter involves “sovereignty, security or similar essential interests” of one of the parties. Moreover, it has long been the view of the United States—as expressed by Chief Justice John Marshall in The Antelope—that “the Courts of no country execute the penal laws of another.”4 Most recently, the “revenue rule” has been invoked by U.S. courts to block enforcement actions against American tobacco companies that smuggled cigarettes into foreign countries, hoping to avoid import taxes.5 The ultimate form of mutual assistance is extradition, the surrender by one State of an individual accused or convicted of a crime in another nation. Originally, extradition (or its less formal equivalent, rendition), was at the surrendering government’s sole discretion. But at least in the nineteenth century, U.S. courts began to require that an extradition treaty be in force before an individual (whether or not a U.S. citizen) was handed-over to another country.6 Today, under almost all of the extradition treaties to which the United States is a party, a foreign State desiring surrender of an individual will make an extradition request to the executive branch of the government. The only judicial involvement is a cursory examination of whether the person to be surrendered is, in fact, the individual sought, and whether the allegations satisfy a standard of probable cause. No independent review of the merits of the charges is made, what is called the “rule of non-inquiry.” Once a court finds a person as extraditable, it remains in the sole discretion of the Secretary of State to have the person surrendered. The only other task for judges in these situations is to ensure that the requirements of the relevant extradition treaty are fulfilled. Most extradition treaties feature a few possible elements that might affect the proceedings. The first is the rule of double-criminality. This means that the defendant’s alleged crime must be punishable (usually as a felony) in both the requesting and sending States.7 It may also mean that the charged offense was, in fact, a crime at the time it was committed. Many extradition treaties also contain lists of extraditable crimes, and the charged offense must fall within that list. Some extradition controversies have involved questions of how to define a particular offense. (For example, U.S. courts have declined to extradite

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individuals charged with violating Swiss bank secrecy laws—such a breach of confidence is not usually regarded as a crime under federal or state law.) Related to double-criminality is the doctrine of specialty, which means that a defendant may only be tried or punished in the requesting State for those crimes for which he was extradited.8 A requesting State may not seek extradition for bank fraud, and then “bait and switch” and later try the individual for homicide. Likewise, some extradition treaties to which the United States is a party bar the application of the death penalty if the defendant is convicted. In such circumstances, the relevant U.S. jurisdiction would have to give the necessary assurances that the death penalty would not be imposed in the event of conviction after extradition. Some States go so far as to reserve in their extradition treaties the right not to handover their own nationals. The United States makes no such reservation, and will routinely extradite U.S. citizens.9 The last, and most controversial, feature of most (but not all) extradition treaties is the political offense exception. This is a clause that indicates that the sending State is not obliged to extradite a suspect charged with political offenses. This was originally conceived in the nineteenth century as a way for liberal democracies to avoid surrendering dissidents to authoritarian regimes. But once a political offense exception was recognized, efforts were made to limit it. For example, attentat clauses were included in some extradition treaties, which provided that the murder of a head of State or head of government, or a member of such person’s family, was not to be regarded as a political offense.10 Some extradition treaties specifically exclude anarchists or those who “envisage the overthrow of the bases of all political organizations.” Other conventions declined to extend the political offense exception to a “common crime,” even if it had a political motivation or purpose. U.S. courts have attempted to distinguish between different sorts of offenses. For example, in a number of matters involving suspected Irish Republican Army (IRA) operatives, the charged assassinations of British soldiers or police were regarded as political offenses, while gratuitous murders of civilians were not. In any event, the 1985 Supplemental Extradition Treaty between the United Kingdom and United States largely eliminated the political offense exception. Aside from the formal processes of extradition and rendition, there is one other mechanism for apprehending suspects in another country: self-help through forced abduction. Not surprisingly, though, this is frowned upon in international law. In one recent example, U.S. agents, working in concert with private Mexican parties, kidnapped a Mexican doctor suspected of being complicit in the torture-murder of a Drug Enforcement Agency (DEA) agent in Mexico. Upon his forced removal to the United States, the doctor challenged the jurisdiction of the court based on the U.S.-Mexico 1978 Extradition Treaty. Lower courts agreed with the defendant that because the Extradition Treaty had been violated, he should be released. The U.S. Supreme Court ruled, however, that because the treaty was actually silent on the subject of forced abductions as an alternative to formal extradition, there had been no violation, and jurisdiction was proper.11

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Aside from the interpretive contortions that the Supreme Court had to engage in to reach this result, the decision seems doctrinally misguided. Resorting to forcible abductions to gain custody of a suspect should not be encouraged, especially when there is an extradition treaty in place. In any event, the case proved to be tragically unnecessary and embarrassing: the U.S. government later conceded that it had apprehended the wrong person. These extradition disputes illustrate a key defect in these essentially bilateral approaches to transnational law enforcement. Unfortunately, multilateral and truly international approaches have not proven very successful, either. There are certainly a number of international institutions that are devoted to transnational crime fighting. The problem is that there is a patchwork of jurisdictions and authorities. INTERPOL can claim virtually every country in the world as a member, but, regrettably, serves as little more than a clearinghouse for criminal intelligence and the issuance of international arrest warrants. Some regional police agencies, such as EUROPOL (based in The Hague, in The Netherlands) offers a higher level of coordination between national police forces. Other UN specialized agencies have specific mandates for certain crimes. For example, the International Atomic Energy Agency (IAEA), based in Vienna, is charged with the prevention of proliferation of nuclear weapons and technology, and, therefore, has authority over the interdiction of smuggled nuclear arms or substances. The International Maritime Organization (IMO) in London (discussed in earlier chapters) has some regulatory authority over such shiprelated crimes as barratry and piracy.12 Global treaties to combat particular sorts of crimes, and to move their suppression to the international plane, have only met with very mixed success. Although some international crimes—such a piracy, slave trading, and terrorism—have been subjected to universal jurisdiction and the sincere condemnation of all nations (more on which later in this chapter), others have not. There has, for example, not been a real international consensus on the treatment of narcotics trafficking. Although the United Nations (UN) in 1988 adopted a Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances,13 it has not been widely ratified and its provisions contain a glaring ambiguity: there is no express authorization given to countries to interdict drug shipments on the high seas, and no direct requirement to extradite individuals suspected of drug offenses. Needless to say, some countries (such as the United States) have inferred such rights and duties from the treaty, but this remains hotly contested. Perhaps the most promising area of international cooperation to fight transnational crime is with tracking-down and confiscating perpetrators’ illicit profits. Combating money laundering is, one would think, something that all countries can agree on. Not only is it the best way to foil international criminals, it also inures to the fiscal benefit of all countries (illicit earnings are usually not taxed, after all). But to the extent that money laundering employs traditional avenues of commerce—credit, investment, and banks—it is also subject to “race to the bottom” regulation. In short, some

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countries have sought to position themselves as havens for laundered assets of international organized criminals. Bank secrecy is a cherished financial tradition in such jurisdictions as Switzerland, Panama, Netherlands Antilles, and the Cayman Islands, but has been taken so far by such countries as Nauru (a tiny island in the Pacific Ocean) and others as to be really only a front for criminals. While the 1988 UN Convention on Drug Trafficking identified money laundering as an issue requiring international cooperation, no precise enforcement mechanisms are prescribed. The Commonwealth groups of nations (the United Kingdom and former British colonies) in the late 1980s and early 1990s developed a set of guidelines for cooperation, including confiscation procedures. The Organization of American States (OAS) has adopted model regulations to make it easier to track drug money. But perhaps the most effective international institution in this regard is the Financial Action Task Force (FATF), created in 1989, by the largest industrialized nations in the world. The FATF regularly monitors money laundering trends, and working with national and international bank regulators (including the International Monetary Fund [IMF] and Bank for International Settlements [BIS]), identifies “haven” countries for money laundering and pressures them to cease and desist. The 2003 MLAT between the United States and the European Union (EU) contains an express provision concerning the exchange of bank information, in order to thwart money laundering.14 Despite these initiatives, bank transparency in some countries remains limited and money laundering continues to be a thriving enterprise in some jurisdictions.15

Fighting Corruption Corruption in public and private transactions is certainly not a new phenomenon. In a sense, it ranks as one of the oldest and most common of domestic crimes, particularly because it turns the institutions and forms of good government against themselves, and facilitates all other forms of illicit activity. Any civil society can be subject to corrupt influences, particularly manifested in the bribing of public officials, perverting the course of justice, facilitation of criminal enterprises, and illicit payments for official contracts, services or preferences.16 Certain forms of governmental administration lend themselves to increased levels of corruption. These include weak government institutions, an absence of administrative checks and balances, and a lack of transparency in decision making.17 And while official corruption has been surveyed as afflicting mostly developing nations, no civil society is immune from its effects.18 If anything, the scale of the problem of corruption has been increasing in the past decades, precisely because of the logic and pace of globalization. With increases in the movements of capital, investors, traders, and entrepreneurs, bribery and other forms of illicit payments are facilitated because of the direct contacts that government officials and foreign entities might have,

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particularly as these contacts are now unmediated by the traditional institutions of diplomacy and inter-State relations: embassies, trade missions, and international aid programs. Because of the intense competition for new markets and investment opportunities, and the growth in the size of undertakings, infrastructure projects, and capital investments, the opportunities for graft have likewise increased, as have the potential profits. Lastly, the liberalization of financial markets and the trade in services—quite apart from more traditional forms of trade and capital investment—have given increased scope to corruption.19 As already noted, government corruption, as with organized crime, can cripple State institutions. The exaction of illicit payments for foreign direct investment (FDI) is, in essence, an unstated tax or tariff on such capital flows, and, if pegged at too-high levels, actually work to dissuade foreign investors from providing badly needed capital to a developing economy. Even more devastating, of course, corruption benefits the pre-existing political, social and economic elites of the host country—the people and institutions that can demand, and receive, bribes for their services or decisions. This can deflect the benefits of trade and investment away from the populace at large, especially workers and farmers, raising resentment against the very processes of globalization.20 One practical effect of corruption and illicit payments is the increase, in certain countries, of income and wealth disparities within segments of that society, giving rise to resentment, and, in extreme circumstances, revolution. Many of the discontents of globalization in the developing world can be laid at the steps of corruption. It is for this reason that corrupt actors—whether the illicit demands made by government officials or the payments made by willing parties—should be regarded as real enemies of globalization. One need not look farther than the headlines to see the extent of the problem. The political leaderships of many developing countries vastly enriched themselves with bribes or the deflection of foreign investment proceeds into their own pockets. This rogues gallery of corrupt politicians or authoritarian figures includes the likes of Ferdinand Marcos (The Philippines), Carlos Salinas (Mexico), Mobutu Sese Seko (Zaire), and Saddam Hussein (Iraq), who either individually or through their families amassed billions of dollars of illicit payments. As with many developments in world law, responses to perceived challenges to international order began with domestic, unilateral action taken by particular, progressive nations. The problem of corruption, at least in the context of the developing world’s receipt of economic aid or FDI, was originally seen as an issue for countries in regulating the dispensation of their own voluntary foreign assistance or the activities of their own traders and investors operating abroad. A pathbreaking initiative in this regard was the United States’ Foreign Corrupt Practices Act (FCPA), legislated in 1977.21 The FCPA essentially imposed civil and criminal penalties on U.S. businesses that were found to have made any payment to a foreign official with the intent of “influencing any act or decision of such foreign official

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in his official capacity, inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or securing any improper advantage; or . . . inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality. . . .”22 The FCPA was not only enforceable through government investigations and prosecutions, but, even more effectively, through private suits brought by rival U.S. investors or businesses who had reason to believe that a lucrative foreign contract they were competing for had been procured by illicit means.23 The FCPA was, not surprisingly, bitterly criticized by U.S. business interests. They believed (with some truth) that it placed them at a competitive disadvantage with investors from other countries, who were at liberty to offer bribes to host state officials without fear of legal repercussions. In order to level the playing field of cross-border investment, the U.S. government embarked on a twenty-year program of encouraging an international response to the problem of corruption. Indeed, as with other fronts in the war against transnational crime, combating corruption demanded a particularly uniform response because various countries would otherwise have differing standards as to when a particular payment, gratuity, or offer to a host state would be regarded as illicit.24 And, indeed, the first international steps were taken by such international financial institutions as the World Bank and IMF, which sought to change attitudes—especially in the developing world—as to the propriety of forms of official corruption. These Bretton Woods institutions were able to make domestic progress on fighting official corruption a condition for certain countries to receive new development loans or procure needed balance-of-payments assistance.25 It has been generally agreed that such “top-down” enforcement of a new international norm against official corruption by international aid or financial agencies is unlikely to be successful. Instead, efforts have to be made to fundamentally change the attitudes of businesses and investors from capital-exporting countries, and, even more importantly, the culture of host states through which it has been deemed acceptable to solicit, and receive, illicit payments. To this end, the Organization for Economic Co-operation and Development (OECD), an institution that includes among its twenty-nine members the most developed countries in the world from North America, Europe and the Pacific Rim, has recommended Guidelines for Multinational Enterprises. First adopted in 1976, these offer a set of “best practices” for entities doing business abroad, as to how to avoid the situations where illicit payments are either solicited or tendered. As a follow-up to these forms of “soft law” instruments, the OECD concluded in December 1997 a Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.26 Essentially replicating the approach made by the U.S. FCPA, the OECD Bribery Convention extends prohibitions on illicit payments and allows for the use of judicial assistance and extradition directed toward offenders, and also puts into place

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a monitoring regime for States Parties’ performance. In addition, the OECD Convention prohibits the common practice of capital-exporting countries in allowing multinational enterprises to deduct from their corporate taxes as a business expense the bribes or inducements paid to foreign political or elected officials.27 Rather surprisingly, the OECD Convention contains a glaring loophole: it does not extend, by its own terms, to the activities of subsidiaries of companies based in a host State. In other words, while the OECD Bribery Convention would cover the corrupt acts of officers or employees of a U.S.incorporated business, it would not reach to the same activities of the employees of a foreign-incorporated subsidiary, even if it was wholly owned by the U.S. company. While it was expected that indictments of the conduct of local company officials would be under the law of the host State, that still leaves the problem of prosecutorial discretion, an issue that may also implicate the corruption of the judiciary and law enforcement agents of that country. On the other side of the corruption equation, the UN General Assembly adopted in 1996 a Code of Conduct for Public Officials, which was intended as a way to strengthen civil society controls over illicit payments. Additional action still was needed to address the regional dimensions of foreign investments and transactions. To this end, the Inter-American Convention Against Corruption (IACAC) was signed in 1996, 28 and this has come to be regarded as one of the strongest anticorruption regimes in place, especially surprising for a part of the world that had shown remarkable tolerance for high levels of official misconduct and illicit payments.29 In part this was attributable to the great degree of specificity of its provisions, very particularly targeting a wide range of corrupt conduct and activities. For example, Article 9 of the IACAC requires states to take necessary measures to prohibit “illicit enrichment,” which is defined as a “significant increase in the assets of a government official that he cannot reasonably explain in relation to his lawful earnings during the performance of his functions.” When combined with strong multilateral legal assistance, investigation and extradition mechanisms, the IACAC does have the potential to make a lasting change in a global culture for which bribe-offers and bribe-taking for official action, especially within the economic sphere, has come to be expected. It may well be an example to be followed by African and Asian countries. Nonetheless, corruption remains rampant in these regions, and Transparency International’s annual “list of shame” continues to focus the harsh glare of international scrutiny on this problem.

“Blood Diamonds” If global anticorruption regimes are, in essence, the legalization of a standard of good government for all countries—a sine que non of development, progress, and globalization—that still leaves those areas of the world without effective government at all. Whether referred to under the unfortunate rubric of “failed States” or “basket cases,” these areas of chronic lawlessness,

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civil war, and weak government institutions pose a substantial threat to international order. At their most primitive and atavistic, these States or competing regimes can even be regarded as criminal enterprises, and treated accordingly. The international response to the problem of failed states, and the criminal enterprises these civil conflicts can generate, is no better reflected than in the debate surrounding “blood diamonds,” or, somewhat more neutrally, “conflict diamonds.” For the competing factions in countries undergoing profound domestic turmoil or civil war, a consistent issue is the acquisition of arms and munitions, military supplies, and other assets needed to prosecute the conflict. Usually, the traditional means of international finance— bank loans and foreign aid—are foreclosed to rebel forces and even to hard-pressed government forces. That means that these factions often have to rely on sales of raw materials extracted from territory they occupy or control. In a “cash-and-carry” economy, these groups often prefer to barter arms and supplies for valuable commodities. So it came to pass that rough, uncut diamonds have been used to finance bloody conflicts in Africa—including in Sierra Leone, Liberia, Congo, and Angola. Featuring the ultimate in portability and value per pound, the global diamond market can generate millions (if not billions) of dollars in profits per year. Raw diamonds extracted from remote areas can be marketed by rebel groups (or by desperate governments), at slightly below-market prices, in order to generate higher sales. Because of the nature of the commodity, once these conflict diamonds enter the global marketplace it was exceedingly difficult to trace their country of origin. And, in fact, conflict diamonds only account for about 5 percent of the world’s supply of rough diamonds, but the amount of revenue they generate can be considerable, for example, contributing up to $125 million to rebels fighting in Sierra Leone alone.30 Warring factions were thus able to generate huge revenue streams, while simultaneously, global diamond merchants were able to make huge profits on purchases of below-market supplies.31 And while this phenomenon of exploitation of natural resources to fund civil conflicts is most commonly associated with “blood diamonds” in Africa, it has elsewhere in the world been traced to sales of timber stands or oil drilling rights or trafficking in cocaine and heroin.32 In short, anywhere civil conflict is rife, and valuable, globally traded commodities are available, the conditions are present for this form of government-sponsored international crime. The model selected by the international community for responding to the challenge posed by conflict diamonds is strikingly similar to that used in response to the illicit trade in endangered plant and animal species (considered earlier in chapter 8). After agitation by many human rights groups, who were alarmed by the deplorable human rights abuses perpetrated by rebel movements in Africa, attention came to be focused on the means of financing these insurgent organizations. Global civil society, actuated through these nongovernmental organizations (NGOs), proceeded to collect data on the use of conflict diamonds to fuel these conflicts.33 The findings of these

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NGOs ultimately came to the attention of policy-makers for countries concerned with these ongoing conflicts in Africa, and, in due course, to the UN Security Council. The UN Security Council is the key organ of the global community charged with preserving international peace and security. The Council is a fifteenmember body consisting of five permanent members (Britain, China, France, Russia, and the United States) and ten nonpermanent members who each serves a rotating two-year term. Any permanent member can wield a veto of any substantive action. To order any response to a breach of the peace or an act of aggression requires nine votes, including the concurrences of the permanent members. Thus to order any credible response to aggression requires a high level of political will by the members of the Security Council, and either the support or silent acquiescence of each of the permanent members. The original intent of the Charter system was to prevent or suppress dangerous regional powers from militarizing and challenging the authority of the Great Powers. The system of collective security under the Charter was never intended to address Great Power conflict or rivalries acted out between the proxies of the Security Council’s permanent members. The Charter’s plan was that the Security Council would, in the face of an act of aggression, declare such under Chapter VII of the Charter and under Article 39. The Council would then order all member States of the UN to impose economic sanctions or other penalties. If such sanctions are ineffectual in reversing the unlawful conduct, then the Council can, under Article 42, order the mobilization of air, sea, or land forces. UN members are obliged not to give any support to the outlaw nation. The situations in such countries as Sierra Leone, Liberia, Angola, and Congo were ideal for Security Council action. By the 1990s at least, there was no cold war dimension to any of these conflicts, and so the Council was free to act without worries of a permanent member exercising a veto. Also, given the human rights abuses by many of the warring factions, the international community was generally repulsed by their conduct and prepared to act. In short, the global political will existed to respond to these situations. In June 1998, for example, in response to the deteriorating situation in Angola, the Council imposed sanctions against the UNITA rebels that had been waging an unrelenting war against the central Angolan government, even after an internationally sponsored peace deal had been brokered. As part of the sanctions package, the Council ordered all UN members to “prohibit the direct or indirect import from Angola to their territory of all diamonds that are not controlled through the Certificate of Origin regime” of the regularly constituted Angolan government.34 The clear intent was to deprive the UNITA rebels of a source of financing for their activities. In this way, the way of economic sanctions was combined with the means of trade controls. In the spring of 2000, the members of the Council watched with substantial anxiety as vicious rebels in Sierra Leone in West Africa attempted to topple the government in that country. The rebels, known as the Revolutionary United Front (RUF), were receiving aid from the government

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of Sierra Leone’s neighbor, Liberia, which was also wracked by civil unrest. The Security Council noted that there was a “link between diamonds and armed conflict” and that there needed to be further measures “targeting the link between the trade in conflict diamonds and the supply to rebel movements of weapons, fuel or other prohibited materiel.”35 The Council also took note of a report by a Panel of Experts that had fully documented the fact that RUF activities were being financed largely through sales of conflict diamonds, through the Liberian government. Acting under Chapter VII of the Charter, and directing its sanctions not only against RUF but also Liberia, the Council embargoed “all direct or indirect import of Sierra Leone rough diamonds” that could not be certified as having originated from government-controlled parts of the country.36 As directed by the Security Council, member States of the UN proceeded to impose sanctions against diamond imports from the specified African nations. The United States joined such countries as Belgium, Canada, and Great Britain in enforcing the Council’s trade embargo on conflict diamonds. In the United States, at least, the mechanism by which international economic sanctions can be enforced in domestic law are statutes known as the International Emergency Economic Powers Act (IEEPA) and National Emergencies Act.37 Acting pursuant to his authority under these law, President Clinton in January 2001, for example, declared that he was responding to “an unusual and extraordinary threat posed to the foreign policy of the United States by Sierra Leone’s insurgent RUF’s illicit trade in diamonds from Sierra Leone to fund its operations and procurement of weapons. . . .”38 This Executive Order imposed a strict trading regime on Sierra Leone diamonds, a move that was later repeated by President George W. Bush in May 2001 with regard to Liberian diamonds. Ultimately, the success of any sanctions regime directed to the problem of conflict diamonds has to rest with the private sector, insofar as the global network of diamond miners, traders, cutters and retailers stand the most to gain—or lose—from regulating their activities. Acting through such entities as the World Diamond Council (WDC), created by the leading members of the diamond trade and bourses, this sector is seeking to create a tracking and accounting system for all rough diamonds, in order to prevent the unlawful introduction of blood diamonds from conflict countries into the global marketplace. The WDC is working in conjunction with what is called the “Kimberley Process,” a long-running negotiation (initiated at Kimberley, South Africa) among diamond producer and consumer nations, in order to establish minimum acceptable international standards for national certification schemes to import and export rough diamonds. As with the certification system under the Convention for International Trade in Endangered Species (CITES), the entire international response to conflict diamonds depends on the integrity of national enforcement of export documentation for rough diamonds. If a particular country is lax in allowing the importation of diamonds from a conflict region, then the entire system is compromised because those diamonds will be able to trade

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freely after their first importation. Of course, there are also the technical considerations in labeling the country of origin of rough diamonds— markings that will inevitably be lost after the diamonds are polished—that are not unlike the problems of designating ivory properly harvested from elephants in countries that observe best practices of husbandry for wildlife protection. In short, the international community’s enmeshed response to this form of global criminal activity, at the intersection of governmental prerogative and legitimate transnational commerce, can only be as strong as the weakest national link.

Lockerbie, Terrorism, and the International Criminal Court On the evening of December 21, 1988, Pan Am Flight103, bound from London to New York, had reached its cruising altitude of 31,000 feet above Lockerbie in southern Scotland. Without warning, an explosive device— Semtex plastic explosive secreted in a Toshiba radio-cassette player tucked into a Samsonite briefcase—was detonated onboard, sending the aircraft hurtling toward the earth. All 259 passengers and crew onboard the craft perished, along with eleven bystanders on the ground. Prior to the attacks of September 11, 2001, it ranked as one of the worst terrorist incidents on record, and would prove to be a galvanizing event in international law’s response to organized, State-sponsored terror. After years of investigation, including the involvement of law enforcement officials from around the world, suspicion settled on two Libyan nationals, believed to be responsible for placing the explosive device on the flight. Abdelbasset Ali Ahmed al-Megrahi and Ali Amin Khalifa Fhimah were believed to be members of Libya’s security services, and allegedly part of Libya’s global terror network. The Libyan government, led by the mercurial Colonel Muamar Qadafi, was known in the 1970s and 1980s for supporting national liberation and insurgent causes around the Middle East and the world, and was implicated in the 1986 bombing of a Berlin disco frequented by U.S. military personnel. In any event, in November 1991, Scottish and U.S. prosecutors returned indictments against the Libyan suspects in the Lockerbie incident and sought their extradition from Libya. Under the authority of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Libya refused, arguing that under that treaty it had the right to prosecute the suspects themselves under the “ex dedere aux judicare”—hand-over or punish—principle. The UN Security Council, acting under Chapter VI of the Charter, requested that Libya hand-over the suspects. Libya still declined and initiated an action before the World Court seeking an injunction of Britain’s and the United States’ economic sanctions against Libya. During the pendency of the case, the Security Council passed another resolution, but this time under the authority of Chapter VII of the Charter, ordering the extradition. In preliminary rulings the Court flirted with, but

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ultimately declined to exercise some form of review of Council decisions under Chapter VII.39 Throughout these political and legal maneuverings, Libya refused to handover the suspects. The United States and Britain were understandably skeptical that they would receive a fair or rigorous trial in Libya. The option of submitting the prosecution to some sort of international tribunal was rejected by the United States and United Kingdom, who insisted that the Libyans be tried before a Scottish court. Ultimately, in August 1998, a deal was reached by which the suspects would be handed over for trial before a panel of three Scots judges, but in The Netherlands. The Libyans surrendered themselves in April 1999, and one of the longest and most complex criminal trials in recent history ensued. In a verdict returned in January 2001, one of the Libyan defendants (al-Megrahi) was convicted of the charges, while the other (Fhimah) was acquitted. Al-Megrahi’s conviction was later upheld on appeal by the Scottish Appeal Court of the High Court of Justiciary in March 2002. Al-Megrahi was sentenced to a minimum term of twenty years imprisonment for the murder of 270 individuals at Lockerbie. His conviction is now being collaterally reviewed by Scottish authorities, to ensure the fairness of his trial. The Lockerbie incident impelled the UN and other international institutions to respond to the challenge of global terrorism, and this response set the tone and pattern for the later world reactions to the events of September 11, 2001. The UN had been in the business of adopting treaties and conventions related to the suppression of terrorism, but most of these were focused on specific types of conduct relating to modes of transportation (including aircraft hijacking),40 or the targeting of specific classes of individuals or sites.41 After Lockerbie, the focus shifted to countering the sources of financing for terrorist activities. The UN adopted, in 1999, the International Convention for the Suppression of the Financing of Terrorism.42 In addition, the UN focused on the chief weapon of terror employed by international terrorists, the use of bombings and explosions to frighten and destabilize civil society.43 Together, these two instruments marked a new approach to the international response against terror, even though both conventions were agnostic as to the actual definition of terrorist acts, the identification of groups (particularly national liberation organizations) as terrorists, or the indictment of particular countries as State-sponsors of terrorism. Attacking the financial underpinnings of global terrorist organizations offers the best practical approach to suppressing this form of lawless behavior. It has the additional virtue of treating many forms of terrorism as criminal behavior, and placing them in the domain of international criminal law. The 1999 UN Terrorism Financing Convention, along with later resolutions by the UN’s General Assembly, have been employed recently in U.S. domestic litigation under the Alien Tort Claims Act (ATCA), which allows civil suits to be brought against foreign defendants for “violations of the law of nations.”44 Nearly 2,000 victims of suicide bombings in Israel and the West Bank brought

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suit against the Arab Bank, for its involvement in providing aid, through the Palestinian organization, Hamas, to the families of the suicide bombers, alleging that Hamas was using the bank to provide financial incentives to terrorists. U.S. courts have found that these suits have been properly brought under the ATCA because they alleged a violation of the UN Terrorism Financing Convention.45 UN Security Council resolutions, adopted after the September 11 attacks, have vastly increased governmental surveillance and control over financial transactions involving terrorist groups. That leaves one of the most significant institutional developments in the area of combating at least some aspects of global lawlessness, the creation in 1998 of the International Criminal Court (ICC).46 The establishment of the ICC culminated decades of work, beginning with the Nuremberg and Tokyo war crimes trials of the top Axis political and military leadership after World War II (see chapter 5). The idea of a permanent, international tribunal to hear cases involving the most grievous breaches of international humanitarian law—including war crimes, crimes against humanity, and the crime of waging aggressive war—had been mooted for nearly five decades. The Lockerbie incident, along with the genocides which occurred in the 1990s in the former Yugoslavia and in Rwanda, galvanized global opinion to institute a regularly constituted body to hear these sorts of cases, in preference to the UN Security Council creating ad hoc tribunals for particular sets of atrocities (as it had done for Yugoslavia and Rwanda, and had recommended for occurrences in Sierra Leone and East Timor). The main objections to the creation of the ICC (especially advanced by the Bush administration), were the potentially broad scope of its jurisdiction and the lack of political accountability of its prosecutorial staff. These reservations were partially addressed in the Rome Statute creating the ICC, insofar as jurisdiction was based on the principle of complementarity: the ICC would have jurisdiction over allegations of violations of international humanitarian law only in situations where a State otherwise having competence to hear the cases (based on the territory where the incidents occurred or the nationality of the alleged perpetrator) is unable, or unwilling, to bring the charges. The ICC thus serves as “a court of last resort” to hear the most egregious cases of violations of standards of conduct during wartime or armed conflict. Indeed, the ICC’s prosecutors have initiated investigations, and brought indictments, for the ongoing genocide in Darfur, the employment of child soldiers in Congo, and systematic rapes of women and girls in the Central African Republic. At this level of analysis, the global challenge of combating international crime merges into the great values of contemporary international law: protecting international peace and security, as well as upholding human dignity and rights. Essentially, this chapter has been about the dark-side of globalization, the trends and processes of the new world order that tend to subvert and upset settled expectations about the goals and opportunities for contemporary international law. Just as international law rules and institutions are attempting to alleviate and prevent aspects of “common” transnational

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criminal behavior (if such can ever be regarded as a regular phenomenon), it is also focused on the very worst conduct that non-State actors can perpetrate: war crimes, acts of unconscionable cruelty to vulnerable civilian communities, and terrorist acts. How international law responds to this challenge is of immense significance for the future of globalization.

11

Cultu re

Globalization has always been seen as a cultural and social phenomenon, as

much as a set of political, economic, or historical conditions. When we think about the processes of globalization, we often worry about the homogenizing effects of transboundary movements, especially trade in goods and services. When people, ideas, and products can move freely across borders there is a natural tendency for “foreign” concepts, values, and commerce to “crowdout” or even eliminate indigenous customs, practices, and ways of life. The anxiety is that globalization can thus, somewhat perversely to expectations, impoverish and diminish the sustainability and diversity of local cultures. It is perhaps no surprise that the ultimate symbols of contemporary globalization are multinational franchises that embody both the best, and worst, of modern culture and commerce: whether Starbucks coffee, Disney entertainment, McDonalds fast food, or American rock-and-roll. Thinking about culture in the idiom of a global commons (see chapter 8)—something that has to be protected and managed, in both its local and transnational aspects—has the advantage of focusing attention on a variety of issues and problems. There are, first of all, questions about the nature of international cultural property, items of intrinsic trade value that also have immense cultural and historical significance. But we must also think about culture in its broader aspects, particularly in the preservation of group claims to the use of distinctive languages (language often being a key indicia of cultural diversity) and of the rights of indigenous peoples and cultures. There is also the connection between culture and trade, especially, the notional concept that there should be a relaxation in trade disciplines (see chapter 9) to achieve cultural objectives. Lastly, one needs to think about culture in the context of human rights, and our willingness (or lack thereof) in relaxing norms of conduct (say, restrictions against female genital mutilation [FGM]) in order to promote cultural pluralism. All of these issues, taken together, define the wide horizon of the cultural and social context of today’s globalism.

Cultural Heritage: Of Looted Art and Sunken Shipwrecks International law has long been preoccupied with the treatment and protection of cultural property, items and materials that have some historic or social

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significance. One major issue has been the protection of cultural property during periods of armed conflict. Although it had always been understood that literary and artistic works were immune from capture under the law of naval prize,1 protection of art works and historic sites was rarely respected on land. Indeed, the looting of art works was regarded—until very recently—as a prerogative of the victor in wars. Beginning with the American Civil War (with the drafting of the Union’s Lieber Code), and continuing with the 1874 Brussels Conference, and the 1899 and 1907 Hague Conventions on the Laws of War, affirmative restraints were sought to be placed on the conduct of hostilities, especially as related to the protection of cultural heritage.2 The destruction of significant historic monuments in Europe during the World Wars, as well as the wholesale looting of valuable artworks by the Nazis, led to the negotiation of the 1954 Hague Convention and Protocol for the Protection of Cultural Property in the Event of Armed Conflict.3 This instrument, which was amended in 1998, has received broad support, although well-publicized breaches during the Balkans conflict (including the near total destruction of the historic city of Dubrovnic4) suggest that much remains to be done in this regard (as discussed below). It is also by no means intuitively clear how to specifically define cultural heritage or international cultural property. One writer suggests that, “cultural property is analogous to a multi-colored afghan, interwoven with pieces of philosophy, politics and law.”5 And, indeed, different international treaties take different routes in defining cultural heritage. The 1958 Hague Convention simply sweeps in all moveable and immovable property that is of significant importance to the cultural heritage of all people, including religious and secular monuments of architecture, art works and history, archaeological sites, scientific materials and collections, and collections of books, manuscripts and archives. The 1970 UNESCO (United Nation’s Educational, Scientific and Cultural Organization) Convention6 leaves it to individual nation-States to designate certain items as protected cultural property. In other words, international law conceives of cultural heritage as either something that is capable of being universally defined and understood, or as things that have to be specially designated within the constraints of the cultural values of a particular polity or jurisdiction. Today, there has been an immense amount of interest focused on the restitution of stolen art works and monuments, whether as a consequence of Holocaust-era looting by the Nazis,7 or, more recently, efforts to return art works that were illegally excavated or exported from certain source countries (such as Italy, Cyprus, Peru, Guatemala, Cambodia, and Iraq). National art recovery squads have been created in many countries. In addition, databases of stolen or looted art works have been created, thus making it more difficult for such works to be offered on the open market.8 Some countries (most notably Egypt, Greece, and Italy) have made aggressive claims for the return of art works that have resided in the great museums of the world (such as London’s British Museum, the Louvre in Paris, or the Metropolitan in New York) for centuries, including the Elgin Marbles from

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the Parthenon, various Egyptian mummies, and Roman and Etruscan antiquities. Needless to say, these efforts have been resisted, not only based on their legal merits (whether it is right to apply today’s ethical standards of provenance to items collected centuries ago), but also the wider supposition that cultural heritage ought, by right, to reside in the country of cultural origin. If cultural heritage is truly a global patrimony, so the theory runs, it should not matter whether an Egyptian mummy resides in Atlanta, or the Parthenon Marbles in London. So long as the object is available for scholarly examination, exchanges and tours, and public access, it should not matter in our new world order of globalization. In addition to the problems of defining cultural heritage, and the restitution of cultural property, there are also conflicts as to concerns whether certain forms of cultural property ought to be allowed in international commerce (fulfilling an economic vision of globalization), or whether they should be reserved for study and appreciation by elite cohorts of academic specialists. Nowhere has this set of disputes been as notable as with the treatment of underwater cultural heritage (UCH), especially of long-lost shipwrecks and their cargoes.9 It is estimated that there are approximately three million sunken shipwrecks scattered around the world’s shipping lanes and oceans.10 Whether originating from classical antiquity, the period of trans-European colonization and imperialism, or the commerce of African, Asian, Pacific, and American peoples, sunken shipwrecks from these cultures are not only time-capsules that can provide an immense amount of archaeological and historical data about societies long-past, but also as repositories of fungible trade-goods and mediums (whether wares, bullion, or coins) that can be restored to the “stream of commerce” for collection and appreciation by contemporary society.11 The challenge for the international management of UCH, is the multiplicity of actors and constituents involved. On the international plane, there can be a variety of State claimants to a shipwreck find. Part of this turns on a doctrinal area of international law known as the “law of the sea.” For purposes of administration, ocean areas are divided into a number of zones. Those zones closest to a coastal State, including a territorial sea (out to 12 nautical miles from shore), or a contiguous zone (out to 24 miles), are where a coastal nation can exercise the most jurisdiction, competence, and power over activities occurring offshore, including those operations regarding UCH. The farther one moves from shore, out into countries’ exclusive economic zones (to 200 nautical miles), or even beyond any nation’s jurisdiction (what is known as the “high seas”), the coastal State’s authority diminishes. For purposes of shipwreck recovery, under the current law—based on the 1982 UN Convention on the Law of the Sea12 —coastal State authority over UCH ends at 24 nautical miles. That still leaves the question of the rights of the original owners of shipwrecks, including private vessels (and their insurers), as well as sovereign warships (assuming that it is possible even to define what constitutes a warship from previous historic periods).13 The other major conflict over the disposition of UCH involves two sets of nongovernmental actors. One group is historic salvors and shipwreck

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explorers, private or associational entities that raise capital or funds to finance the time, expense, and technology necessary to search for, and recover, shipwreck artifacts. Especially when exploring shipwrecks in the deep ocean (think about the remains of the RMS Titanic, located on the seabed under 3.5 miles of water), such efforts can run into the millions of dollars for each expedition. These operations are governed by the international maritime law of salvage and finds, a body of law that goes back nearly three millennia. Stated simply, the law of salvage gives a reward to anyone who rescues property lost at sea; the law of finds gives outright ownership to anyone who finds abandoned property at sea. Depending on the legal determination of whether a particular piece of property has been abandoned by its original owner, that will determine whether a salvage award will be granted (sometimes approaching 90 percent of the value of the wreck cargo14), or if the property will be granted to the finder. The other major constituency and interest group for UCH is the community of nautical archaeologists and historic preservation entities. Their attitude is that shipwrecks should be regarded as an international patrimony or commons (see chapter 8), and that UCH should never be allowed to be bought or sold in commerce. The problem, of course, is that such an approach is entirely antithetical to the centuries-old private international law of the sea governing salvage and finds of shipwrecks. It also ignores the commercial realities of contemporary shipwreck exploration: without access to capital, technology, and resources (which most governmental and academic archaeologists do not have), most shipwreck sites will remain undiscovered and unexplored, and might potentially degrade over time. Nevertheless, the UNESCO recently adopted a treaty that will substantially curtail private, commercial access to shipwrecks.15 Perhaps not surprisingly, many maritime powers (including the United States and United Kingdom) refused to sign this instrument, and it has not yet (as of this writing) entered into force. Cultural heritage issues thus present a complex set of problems for international law in this new era of globalism. Aside from the task of defining cultural property in a universal or particularistic way, there are also the modalities of protecting cultural heritage in a variety of contexts, whether during armed conflict, or regulating the art market in looted objects, or in patrolling the limits of commerce for shipwreck artifacts. At bottom, legal questions about cultural heritage revolve around the values of the international community and our commitment to preservation and patrimony, or diversity and commerce, as the best means of promoting our objectives.

Language Rights for Groups and Individuals Nothing defines culture as much as language. Along with ethnicity and religion, language can ultimately delineate and specify a culture. The distinctive language that a group speaks and writes, within a particular cultural context, may, in fact, be the only thing that separates them from a wider community

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of people.16 Culture and language are so closely intertwined that there is a strong sense that language must be protected, in order to preserve distinctive cultures. Indeed, this seems a modern imperative. Globalization has meant the spread of mass communications, not only in the form of traditional broadcasting (radio and television), but also of new mediums of communication (including the Internet and World Wide Web). Traditional languages, spoken in small communities, are dying, “crowded-out” by linguistic monoliths as such “global languages” as French, Spanish, Arabic, Mandarin Chinese, and, most imperialistic of all, English. It is estimated that a hundred years from now 90 percent of the current 6,000 languages will be gone.17 Today, 1619 (or 23 percent) of all world languages are spoken by fewer than half-a-million people, 548 (about 8 percent) of the world’s languages are spoken by fewer than 100 people, and 204 (or 3 percent) of all world languages are spoken by fewer than 10 people.18 Language extinction is now being viewed in the same way as the protection of endangered species and the challenge of climate change, a global crisis that merits a global response. The legal challenge for protecting languages is mapped on two different axes. The objective of promoting a diversity of language in our new global era can be seen as a purely international question, a purely domestic matter, or a mix of the two on a continuum. Likewise, the concept of language rights might be viewed as a privilege held by individuals as human rights, or one embraced by groups or minority populations as a means of social identity. Currently, the promotion of language rights is really a “negative liberty,” or passive right: to be free of discrimination based on the language one communicates with.19 At the purely international level, language rights are rarely recognized. Although the United Nations has six official languages (English, French, Spanish, Russian, Chinese, and Arabic), only the first two are in common usage at that body. By contrast, the European Union (EU) attempts to accommodate every spoken language in Europe, including Gaelic and Maltese. In most international conventions, language rights are often relegated to footnotes. In 1989, the International Labor Organization (ILO), a UN specialized agency based in Geneva, adopted a Convention on Indigenous and Tribal Peoples.20 Article 28 provides that “[c]hildren belonging to the peoples concerned shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong,” and that “[m]easures shall be taken to preserve and promote the development and practice of the indigenous languages of the peoples concerned.”21 The Organization for Security and Co-operation in Europe (OSCE), has also been active in adopting guidelines for the protection of minority language rights.22 Today, the main fault-lines for language rights disputes are in defining the nature of the values to be protected. Under most contemporary human rights regimes, freedom of expression (enshrined in such instruments as the International Covenant on Civil and Political Rights [1966] and the European Convention on Human Rights [1950]) is analytically distinguished from the right to use a particular language.23 This can be particularly a problem in

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States with two or more main languages (such as Belgium and Switzerland), or where there are deeply entrenched minority populations (Romanians in Hungary, Basques in Spain, or Russians in Estonia). Also there are situations where ethnic identity has been boosted by attempts to revitalize underused languages (such as Hawaiian, Gaelic, and Breton).24 In other instances, language has been used as a means of nation-building, whether in medieval Germany, the use of Hebrew in Israel, or Swahili in east Africa.25 Language discrimination and claims of fair treatment thus remain a significant issue for international law, and (as noted earlier) these problems are likely to be exacerbated by the homogenizing trends and tendencies of globalization. It is open to question whether language rights ought to be viewed through the exclusive prism of minority rights, or whether it should be examined more broadly as an imperative for language diversity and protection.26 It should also be noted that language discrimination can cut in favor of trends against globalization, as with France’s Loi Toubon, restricting the uses of foreign languages (particularly English) in French commerce (more on which, later in this chapter).27 If globalization accelerates, as many think it will, language disputes are likely to deepen in the decades to come.28

Indigenous Peoples and “Cultural Zoos” The problem of language rights for cultural minorities reflects one aspect of the “culture wars” in contemporary globalization. But there are others, as well. Indeed, cultural issues are implicit in most elements of development. The essential problem is that globalized culture is, at one and the same time, multicultural and homogenous. Globalization can thus appear to be an inexorable process of cultural unification, as has occurred historically.29 The doctrinal dilemma here is the interplay between different impulses in international law: conflicts between the rights of minority populations and general human rights values, and between moves to “legalize” an entitlement to development and the promotion of economic, social, and cultural rights.30 Nowhere is the battle over the cultural imperatives and pitfalls of globalization more apparent than the treatment of indigenous peoples under international law. Indigenous peoples have been particularly vulnerable to assimilation and destruction of their cultures.31 As was considered in chapter 8, there have been well-known examples of indigenous populations located in the world’s tropical rainforests (the South American Amazon region, Central Africa, and the islands of the Indonesian archipelago), that have faced virtual extinction, not only from economic and cultural assimilation, but also because of the loss of critical habitats owing to the pressure of exploitation of forest resources.32 The problem to be considered here is actually the reciprocal of the destruction of indigenous societies owing to globalized development. That is whether contemporary patterns of globalization are actually retarding the development of indigenous peoples by preventing them from evolving. One aspect of globalization (already discussed in chapters 7 and 8) is tourism, and

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one form of tourism is ethnocultural observation: traveling to remote parts of the planet to visit with “primitive” peoples. Some countries are starting to realize that indigenous peoples are a potential source of tourism revenue and a point of national pride. In extreme circumstances, cultural protection of indigenous peoples transforms these cultures into living museums, freezing their development in a point in time, even when it is the nature of culture to evolve.33 Some indigenous cultures are today displayed like animals in a zoo, as was the practice nearly a century ago.34 Although ecological protection of indigenous cultures’ habitats should be promoted, as well as a broader agenda of indigenous cultural diversity, there is a counter-argument to be made that indigenous peoples have an equal entitlement to development and progress as all populations do. It is unfair to assume that indigenous peoples do not desire the same conveniences, or even luxuries, that are so common in developed nations, even if the acceptance of those aspects of material culture might compromise their accepted cultural practices or values. In order to resolve this dilemma, one possible approach would be to ask for, and receive, informed consent by indigenous peoples (working through their traditional means of social governance), in order to initiate certain developmental or globalizing initiatives (whether to accept visitors and public health services, to participate in trade or market economics, or to authorize infrastructure projects). Yet, the very act of outside entities seeking informed consent can alter, or even corrupt, the ways of indigenous life that are trying to be protected—a cultural application of the Heisenberg uncertainty principle.35 The international law of indigenous people has, until very recently, been focused on the rights of such peoples to be consulted, and (in certain circumstances) to consent to development projects involving their ancestral homelands. Article 27 of the International Covenant on Civil and Political Rights (ICCPR) provides that “[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”36 International human rights bodies and domestic tribunals have ruled that ICCPR Article 27 protects the rights of indigenous peoples to control access to their heritage lands.37 A 2006 UN Declaration on the Rights of Indigenous Peoples goes further, emphasizing the “informed consent” aspect of land-use permits and the need to “mitigate adverse environmental, economic, social, cultural or spiritual impacts[s]” of development on indigenous peoples.38 An excellent example of these conflicting currents in the protection of indigenous cultures is the treatment of Inuit (Eskimo) peoples of the circumpolar Arctic (including not only Canada and Alaska, but also Siberia, Greenland, and Lapland). Unlike the southern polar regions, the Arctic has been inhabited by native peoples for millennia, managing to live in harmony with nature even in one of the most extreme and unforgiving environments on the planet. International regulation of Inuit activities and customs has largely focused on granting these peoples an exemption from what would

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otherwise be stringent restrictions on the takings of Arctic species, namely polar bears, fur seals, and whales.39 If these restrictions were imposed against the Inuit, their subsistence ways of life would simply cease to exist. More recently, efforts have been undertaken to coordinate sustainable development of the Arctic and to improve standards of living and quality of life for Inuit peoples, who have suffered from significant unemployment, alcoholism, and suicide rates, far above those of similar, vulnerable populations. In 1998, a new international institution, the Arctic Council, was created to coordinate these efforts, with the substantial involvement and official participation of Inuit peoples acting through their elected representatives.40 Another major institutional locus for the vindication of indigenous peoples’ right to sustainable development has been the International Bank for Reconstruction and Development (IBRD or, more commonly, the “World Bank”). The World Bank has acknowledged that indigenous cultures are particularly vulnerable to damage by the infrastructure projects it funds and has attempted to implement unofficial measures and safeguards for the review of such projects and the assessment of their impacts on native peoples.41 The World Bank’s funding activities—especially in reference to the rights of indigenous peoples—have been the subject of substantial scrutiny by international nongovernmental organizations (NGOs).42 In addition, the World Bank itself has established an Inspection Panel, staffed by eminent scholars and practitioners of international law and development, to evaluate the progress of Bank projects, and some of these reports have been relevant to the interests of indigenous peoples.43

Cultural Exceptionalism in Trade The cultural rights and development opportunities of indigenous peoples is only one front in the continued battle between the forces of globalization and cultural protectionism. The homogenizing effects on culture, which is a by-product of globalization, have already been observed in this volume and have been closely studied by sociologists and other scholars.44 As already indicated, many individuals, polities, movements and entities have sought to “push-back” against globalization in the cultural realm and to fight the perceived “harmonization” or “Americanization” of global culture. Increasingly, this battle has played out in the arena of trade regulation. This has been partially manifested by the targeting of American business franchises, based on such varied intellectual premises as the “slow-food” movement, corporate responsibility and sustainable development, or international regulation of child or exploitative labor. In the past decade, the front has moved to the global trade in services, especially cultural products such as music, art, and film. As was discussed in chapter 9, the global disciplines of trade are codified in the General Agreement on Tariffs and Trade (GATT) and by the World Trade Organization (WTO).45 The GATT/WTO does not explicitly provide for a cultural exception to trade, although it has been argued that GATT/ WTO Article XX’s general exemption of trade regulation in cases of

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regulation of “public morals” or the protection of “national treasures of artistic, historic or archaeological value” might give traction to such a claim.46 Even to the extent that this might notionally extend to cultural products, there is still the heading (or “chapeau”) to Article XX, which provides that “subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures” affecting public morals or artistic works.47 So, from a WTO perspective, there really should be no exception from trade disciplines for the international exchanges of goods and services in cultural products. Despite WTO pronouncements, the reality is that cultural exceptionalism in trade may be alive and well, in at least some aspects. In 1989, the EU adopted its “Television Without Frontiers” Directive, expressly to curb the dominance of American films and television programming on European airwaves.48 The Directive sets minimum quotas for the airing of European films on European television channels, and indicates that, where practicable, members states of the EU must reserve a majority of entertainment broadcast transmission time for European-produced content. The Directive even allows individual European nations to establish stricter quotas, although (as of today) only France has done so.49 In the developed world, the main leaders for cultural exceptionalism have been France and Canada, and it has certainly been perceived that their efforts have been directed against a notional American cultural hegemony. In March 1998, at a UN-sponsored conference in Stockholm, cultural ministers from around the world began to clamor for a cultural exception in trade. This led to the formation of the International Network for Cultural Policies (INCP), an intergovernmental clearinghouse for initiatives in this area.50 The stated goal of INCP is the promotion of cultural pluralism and diversity in the face of globalizing forces, largely in the area of trade and regulatory policy. Despite these developments, most nations eschew the notion of cultural exceptionalism in trade. The main reason may be that the concept itself is regarded as being intellectually suspect. Why does culture need to be protected? To the extent that commodities or services shape culture (whether in the form of mass media, the Internet, the arts, or literature), people in a society should be assumed to make choices about what they wish to consume. It is impossible to stop the evolution of culture, and the mere act of restricting access to cultural commodities and services tends to promote those forbidden items.51 To the extent that the United Kingdom tried to restrict the playing of rock-and-roll tunes on British radio in the 1960s, a vibrant underground, “pirate” radio movement started. The same is true with the former Soviet Union’s (and now China’s) attempts to restrict information flows from outside their borders. In short, restricting access to “foreign” cultural products rarely works to protect “traditional” cultural values, unless those values are also aggressively promoted from within society.

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Culture also tends to be viewed in historic retrospect, as a kind of discourse about a society’s cultural values and traditions. To the extent that this is a conversation about social conventions and mores, it is a form of free expression that certainly needs no trade protection. Current cultural trends will set or influence future preferences, and will not respond to restrictions on access. Finally, and most obviously, even if trade in cultural commodities and services is successfully restricted within a polity, inner forces will still change the cultural make-up of that society.52 Cultural exceptionalism in trade is thus the flipside of protecting language rights or the ways-of-life of indigenous peoples. But the global trading system, as managed through the WTO, is really indifferent to the policy value of protecting a country’s traditional culture, even if such were sanctioned under Article XX of the GATT/WTO. Rich countries can reject global trading rules, in order to grant preferences to native cultures, provided that they are willing to grant compensation to culture-exporters (such as the United States) whose interests are damaged by such protectionism. So, even if the global trading system were prepared to accept cultural exceptionalism, all it would probably mean is that the developed nations of the world would be privileged enough to afford cultural protectionism. In short, cultural exceptionalism would simply become a vehicle for the promotion of the cultural values of a handful of nations.53 While this may not result in a “monoculture” of American hegemony, it certainly would not create an environment for the sustenance of a diversity of non-European or non-Western cultures.

Cultural Relativity and Human Rights So far in this chapter, I have assumed that culture is an unalloyed good, something to be protected, presuming that one can agree on the values and principles to be preserved. Under this view, we might disagree about the modalities of protecting cultural values—whether it is cultural heritage, language diversity, or indigenous traditions—but we can at least concur that these are all things we care about. There is also a dark side to culture, and it, too, has manifestations in international legal practice and doctrine. There are cultural practices that we may regard as abhorrent. Some of these are traditional customs, and one of these will be the focus of this chapter. But it is important to emphasize that not all problematic cultural practices are rooted in “traditional” cultures. Others may be based on religious traditions, such as the practice of suicide bombers in the Middle East (although there is a good argument to be made that traditional Islam frowns on this practice). Yet others may be attributed to unique manifestations of minority rights. Female genital cutting, also known a female genital mutilation (FGM), is a custom practiced in a number of sub-Saharan African nations, and elsewhere in the Middle East and South Asia, and affects millions of girls in those countries.54 The practice typically involves the cutting on young, prepubescent

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women’s genitals as a rite-of-passage in these cultures, often with the deliberate intent to eliminate these women’s sexual desire and satisfaction. This practice often results in severe, long-term health problems for the affected female populations in these nations. A variety of sociological and anthropological explanations (or even justifications) of this practice have been offered by a variety of ethnographers, and the extent of the genital cutting (and consequent health effects on women) vary by culture. In addition, these scholars emphasize that in these traditional societies the actual act of cutting is performed by older women, with the (at least notional) consent of the participant. Obviously, these cultures are heavily male-dominated and one intent of this practice is to maintain a sexually pliant and subservient population of women, especially in societies where polygamy by men is also practiced.55 The practice of FGM has become a global concern because of migration patterns (see chapter 7), and the movement of populations from traditional societies in the developing world to the industrial North. Especially in hostsocieties (such as Canada, Britain, and The Netherlands) that have adopted a “mosaic” approach to immigration, and have not rigorously required assimilation as a requirement for acceptance and success (as in the United States and France), traditional practices from home countries are still often practiced, although without any official sanction. Precisely because the practice of FGM has spread in this way, any response tends to blur the lines between public international law (such as global human rights regimes) and private international law (the treatment of family relations across borders). International human rights law normally acts as a restraint on government exercises of power and authority, and has less influence when it is the conduct of private parties (who are not acting under color of law) that needs to be counteracted. While nations are at least under an international law obligation to promote human rights, and to prosecute violations of those rights, it is less clear how modern States should act in these situations. In large measure this dilemma might be philosophical. Over the past three decades there has emerged a coherent challenge to global human rights doctrine, known as the principle of cultural relativity. This has been seen as a critique of traditional human rights law that, while aspiring to universalism, is acknowledged as the unique product of the Western enlightenment, conditioned by the theories of classical liberalism and the circumstances of European and North American political, legal, economic, and cultural development (see chapters 5 and 6). In short, these advocates of cultural relativity argue, there can be no such thing as universal human rights, and (moreover) to espouse such a doctrine reflects nothing less than the arrogance and elitism of the developed North, attempting to impose their peculiar individualistic and rights-based values against those of other cultural traditions. In this vein, Western human rights doctrines tend to be counterposed (at least after the cold war and the collapse of most communist regimes) as against those of traditional societies (particularly in Latin America, Africa, and South Asia), Islamic culture, and strongly communitarian regimes in East Asia (especially China and Japan). To put it another way, cultural relativism is

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another way of expressing the ongoing global culture wars, East versus West and North versus South.56 In the specific context of international human rights doctrine (the evolution of which was narrated in chapter 5), there is some truth to this critique. Global human rights doctrine has strongly Western, individualistic, and rights-based orientations. Does this necessarily mean that it cannot aspire to universalism? And, most importantly of all, does it mean that we should countenance practices that are justified under a theory of cultural relativism? Those who would denounce “cultural imperialism” are also those who might justify FGM as a legitimate cultural practice supported by the consent of the girls participating (notice, though, that this may not be “informed consent”). In addition, it has been argued that to suppress the practice of FGM (by criminal prosecutions) would mean that traditional rites of passage for young women would have to be altered, to the detriment of these cultures.57 Despite the critique of cultural relativism, universal human rights doctrine has roundly condemned the custom of FGM, going so far as to urge its utter suppression and the criminal prosecution of its practitioners. The 1979 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC), were important steps in this process.58 During the 1980s and 1990s, the problem of violence directed against women came to international prominence, and FGM came to be seen as an aspect of that phenomenon.59 By the same token, women have now come to be seen as the prime repositories and protectors of traditional cultures and practices, but a consensus seems to be forming that even if FGM is practiced with the informed consent of the participants it is a custom that should be suppressed on public health grounds. The question remains whether this is something that should be imposed from the outside in African and Asian nations, or whether the best approach is to promote change from the inside of these cultures. It may well be true that the latter strategy offers the best outcomes, as has been learned from grass roots and tribal movements in countries such as Senegal and South Africa. Culture remains a lightning rod for disputes about the nature and reach of globalization and international law. Perhaps this is no surprise since cultural attitudes, values and predilections implicate the most basic impulses of human nature. There also seems no doubt that globalization has accelerated and deepened some of these disputes, to the point that they may even bear on questions of international security and global justice. Although the past century was characterized by the political struggle between totalitarian and democratic regimes, this century may be marked by a “clash of civilizations” and the consequent need for international law (for better or for worse) to regulate the cultural interactions of competing societies.

12

Technology

A dvances in technology have been a driving force for globalization and a

challenge for international law for much of the twentieth century.1 Many of the international legal developments considered in the past chapters have involved (real or perceived) leaps in technology, whether it is air transportation (see chapter 7), the evolution of cyberspace (chapter 8), or deep seabed mining (chapter 9). It seems certain that this trend will continue. Technological advances hold the promise for solving some of the most pressing problems facing the planet in this new century: overpopulation, crop failures and drought, energy dependence, disease prevention, and climate change. Technology can also, ironically enough, impede progress and exacerbate international conflict. One of the major issues in today’s global politics is the prevention and control of the proliferation of weapons of mass destruction (WMD), most notably nuclear and biological technologies. The current conflicts with Iran and North Korea over their atomic energy programs illustrate that scientific programs for peaceful purposes (such as electricity production) can quickly and quietly be subverted to nuclear weapons projects, with just the right injection of sophisticated technologies (whether centrifuges used to separate fissile material, nuclear weapons designs, or more advanced rocket and payload delivery systems). Technology has thus become a flashpoint in the international law of globalization. The challenge is to predict the science and technology that will become the most influential agents of change in the twenty-first century. Some of these have already been discussed here, including the Internet. Others that will be considered in this chapter are the cluster of issues surrounding the deployment of biotechnologies, energy and water production and conservation, space exploration, and privacy protection.

Biotechnologies: GMOs, Human Cloning, and Bioterrorism The most startling advances in science in the past quarter-century have been in the area of biological science. The mapping of the human genome, the synthesis of new drugs and treatments for disease, the application of

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biotechnology to agriculture and animal husbandry, and our growing understanding of the origins of life on this planet, are among the great scientific achievements of this generation. Each of these areas of biotechnological advancement poses potentially insuperable challenges to the international legal order, even as they contribute to profound processes of global change. A number of challenges are subsumed under the rubric of genetic engineering, the ability to manipulate human, animal, or plant DNA (deoxyribonucleic acid) in order to achieve new diagnostic techniques, advanced drugs and therapies, new crops, or even to replicate new life forms. The potential benefits of these sorts of biotechnologies can be enormous, but so can be the risks. The costs and benefits of genetically modified organisms (GMOs) have been hotly debated in the scholarly literature, in the courts of public opinion, and in the councils of power (both domestic and international).2 As was already considered in the context of rainforest medicines (see chapter 8), there are major international legal implications arising from attempts to impose intellectual property restrictions (such as patenting or copyrighting) on proprietary interests in DNA strings or other genetic engineering data. Indeed, this debate pits many of the slogans and rhetoric that were featured in discussions about the use and regulations of international common resources. Should we reward private enterprise, ingenuity, and innovation by giving a property interest in significant biotechnical advances? Or is genetic material (whether found and manipulated in plants, animals, or humans) a global common resource, or even the common heritage of mankind, beyond the pale of private appropriation and exploitation? The theoretical posture that one begins with in this debate (whether rights-based or communitarian) can ultimately lead to significant policy outcomes, even as international regulation has taken a fairly agnostic attitude toward the ultimate question of who owns genetic material.3 It has been suggested by a number of commentators that already we are experiencing a vast enclosure movement over the genetic commons. The U.S. Patent and Trademark Office (PTO), as of 2004, had already issued more than 6,000 patents on full-length genes isolated from living organisms and that office had under consideration more than 20,000 gene-related patent applications.4 The U.S. PTO’s experience was similar to that of the European and Japanese patent offices. With the issuance of so many patents, we are clearly experiencing a conflict between patent-based systems of ownership and access to genetic resources, as opposed to sovereignty-based mechanisms of control (based on the location of source materials for genetic products, or regulation premised on the nationality of producers or synthesizers of genetic material). To date, international attempts to regulate this attempt to apply property rights to the entirety of genomic resources have been unsuccessful. The 1992 Biodiversity Convention (discussed in chapter 7), while adopted by many nations (but not the United States), has been given only spotty application and execution in situations outside its intended scope: the in situ preservation and protection of flora and fauna in the wild. The World Intellectual

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Property Organization (WIPO), a UN specialized institution based in Geneva, has been debating these issues for more than a decade, but without any concrete results. If issues dealing with intellectual property rights over biotechnology advances with genetics were not enough to spur attention to this subject, there is also the matter of what to do in cases where GMOs cause damage to the environment. These liability concerns are raised chiefly in instances where nonhuman organisms (usually crops or livestock) are genetically modified in order to achieve certain selective traits, whether resistance to disease or drought, or greater productivity and output. It has been claimed that GMOs can cause allergic reactions in humans, can cause harmful impacts on the natural environment and unexpected cross-indications with other plant or animal species, or, most seriously of all, can result in “genetic drift,” where the modified organism spreads beyond its intended purposes or range, and then supplants unmodified organisms.5 Control of GMOs in these situations implicates the international law of liability and compensation for environmental harms. This is the most obvious, and lawyerly, approach to international environmental management: to simply make all questions turn on answers of State responsibility. This tends to vindicate the adage: “If your only tool is a hammer, every problem looks like a nail.” Although the fashioning of liability regimes for environmental damage seems alluring as a mechanism to reduce those harms, it has proven most difficult in practice. For starters, liability and compensation regimes are notoriously difficult to negotiate. States are obviously reluctant to make rules that will require them to pay for their environmental misdeeds. Nor have background rules of customary international law helped in this process. There is a substantial division in authority regarding the relevant standard of liability for environmental harms. Language in the 1938 Trail Smelter Arbitration is suggestive of a strict liability standard, provided that the damage is of “serious consequence” and the injury is established by “clear and convincing evidence.”6 The 1972 Stockholm Declaration was also indicative of a possible strict liability standard. But other sources, including the World Court’s 1949 Corfu Channel Case,7 might stand for the proposition that a State must be aware that it is causing environmental damage and fail to take steps to halt it. This would be more consistent with a fault, or negligence, standard of liability. There have been a number of treaties creating liability and compensation regimes featuring strict liability. These have included conventions on oil pollution from tankers (the 1969 Civil Liability Convention for Oil Pollution Damage), nuclear power (the 1960 Paris Convention on Third-Party Liability for Nuclear Energy and the 1963 Vienna Convention on Civil Liability for Nuclear Damage), and hazardous waste transport (the protocol to the 1989 Basle Convention on Control of Transboundary Movements of Hazardous Wastes and Their Disposal). These treaties have one thing in common: they all impose liability against private actors that are involved in these risky endeavors. States are not directly the subject of these regimes. Indeed, where

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State actors can be expected to have the greatest exposure to international liability, such regimes are unlikely to be negotiated. (Discussions to create a liability system for activities affecting the Antarctic environment languished for years until the 2005 Stockholm Annex was concluded, as have the UN International Law Commission’s efforts to create a generic instrument on this subject.) Quite apart from the standard of liability under these regimes, another aspect of many of these treaties is the establishment of compensation funds. Contributions are typically made to these funds by private entities engaged in the risky activity (for example, shipping oil or hazardous chemicals by sea). In the event of an environmental incident, there is a ready source of funds to compensate States and private actors that attempt to respond to the accident or that incur damages. Liability and compensation regimes also make use of insurance markets by requiring that entities engaging in highrisk activities carry sufficient coverage to compensate others in the event of an accident. In the field of “genetic pollution,” a major international legal breakthrough was achieved with the negotiation and conclusion of the 2000 Cartagena Biosafety Protocol to the Biodiversity Convention.8 This instrument enshrines a number of significant international environmental policies. The first of these is the “precautionary principle”—that for any decision concerning environmental safety, it will be assumed that the proposed activity could be dangerous to the environment, and, therefore, all measures will be taken to assess that activity and prevent any harm. The second policy is one of “advanced informed consent,” that governments, entities, or individuals who are involved in the process of transporting, handling, or using GMOs should be properly informed of their potential risks and benefits. The Cartagena Protocol can otherwise be regarded as a paradigmatic “framework convention,” pronouncing broad regulatory guidance as well as establishing the necessary institutions, consultative mechanisms, and monitoring capacity to successfully regulate the international trade in GMOs. One thing the Cartagena Protocol did not provide for, however, is to conclusively establish a liability and compensation regime for intentional or accidental releases of GMOs that cause environmental damage, along the lines that might be available for the transportation of exotic species (see chapter 7).9 Individual nations or trading blocs have thus taken their own approaches to GMOs. The European Union (EU), for example, has issued directives and taken measures to sharply limit the importation of products made with GMOs, and to prohibit the deliberate release of such organisms.10 Issues concerning GMOs are likely to become even more problematic as biotechnologies advance and future applications result in even more impacts on human health and environmental integrity. One area that combines concerns for rainforest medicines, biotechnology, and access to life-saving treatments is the potential to convert common plants into drug factories by synthesizing proteins or gene sequences, impregnating them into the

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DNA-structure of existing fauna, and then growing them as pharmaceuticals. This process, known as “biopharming,” can be a more cost-productive way to generate life-saving drugs or treatments for widespread consumption.11 It, however, certainly raises concerns for environmental protection and the risk of genetic drift. If especial care is not taken to prevent accidental releases of this form of GMO, there could be disastrous environmental consequences. The ultimate feat of biotechnology is human cloning, the exact replication of one individual’s genetic makeup in another entity. Without the recently completed mapping of the human genome and the development of sophisticated genetic manipulations, human cloning would be the stuff only of science fiction stories. But on February 22, 1997, researchers at the Roslin Institute in Edinburgh, Scotland, announced the first clone of an adult animal, derived from a single differentiated cell. The clone was of a sheep, and the resultant specimen was named “Dolly.”12 This single event reignited a global debate about the modalities and ethics of genetic research. Along with issues of genetic screening for many diseases (especially in decision making to plan or terminate pregnancies), and selective reproduction for therapeutic reasons (including stem-cell research),13 human cloning may become a defining biotechnical issue for this century. The general international consensus has been against the practice of human cloning. In 1997, the World Health Organization (WHO) issued a resolution strongly condemning human cloning. The European Parliament followed with a Union-wide ban on research involving human cloning. In March 1997, the Council of Europe, a human rights organization for that continent, adopted, at Oviedo, Spain, the European Biomedicine Convention, which was the first binding international legal instrument on this subject. The United States, Japan, and Canada were involved in the negotiation of this treaty project, but did not sign it. Just a few months later, in November 1997, the Council of Europe adopted a protocol to the Bioethics Convention that categorically banned any “creation of a human being genetically identical to another human being, whether living or dead.”14 To date, the United States has not adopted any ban on research leading to human cloning, although U.S. government funds may not be used for such purposes. Human cloning poses not just public health concerns. Aside from the awful specter of eugenics, and the potential commodification of human life, there are other issues, as well. Many criticisms of the practice stem from the realm of human rights, particularly a new branch of the subject, the right to a clean and healthy environment. A widespread practice of human cloning runs the risk of threatening biodiversity within the human species, as the same (presumably desirable) traits are selected again and again for replication. In a wider human rights sense, there is the danger of creating a biological underclass of cloned individuals.15 Arguments for or against human cloning have, over the past few years, been transformed into clashes over stem-cell research, a line of biotechnical inquiry that holds great therapeutic potential for the treatment of a variety

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of illnesses and health conditions. Stem-cells are typically (although not exclusively) isolated from human embryos or fetuses, and thus raise many of the same bioethical questions as human cloning. Stem-cells are cells from which all the different kinds of tissue and organs in the human body are derived, and thus can be used to regenerate or actually replace damaged or destroyed body parts. Stem-cell research has been subject to stringent regulation in the United States, and federal funds have been largely denied for such inquiry, although elsewhere in the world a number of significant investigations have been continuing.16 The controversy over human cloning and stem-cell research has also raised broader issues of global governance in the face of such disputes. As can be seen from the previous narrative, a large number of countries have weighed in on these issues,17 as have many international institutions (both treaty-based international organizations and nongovernmental organizations [NGOs]). With an issue like human cloning—which implicates broad concerns for global public health, bioethics, environmental protection, and human rights—it is easy to imagine that there can be a discordance in international responses, resulting in no clear or coherent set of policies. Partly this is a function of law and policy responding to fast-changing developments in medicine and biotechnology. International lawyers and policymakers tend either to overreact to such technological changes, or to be complacent and passive and simply wait for a political agreement to form in sync with a developing scientific consensus over an issue. Scientists and technologists often do not agree on ethical, policy, or legal responses to their own activities. So, it is a delicate process by which law and policy respond to technological change. Another factor in discordant (and, some would say, dysfunctional) international responses to biotechnological change is that there are a multiplicity of international institutions, each devoted to particular niche areas of international regulation, oversight and policy-making. The WHO, a global public health body may not really coordinate its policies with human rights bodies or with intellectual property entities like the WIPO, yet another UN specialized agency. Each of these sets of institutions has its own “turf” to protect, and is reluctant to be seen as directly competing for, or interfering with, the competency or capacity of other international organizations. One solution, of course, is to create new institutions (whether formal or informal) to deal with every new scientific or technical challenge facing the planet, and that has certainly been the model for many global international environmental problems (including ozone depletion of the stratosphere or global warming). This can lead to other forms of institutional redundancies or complications in managing broad and systemic global problems. In the international regulation of biotechnological innovation, there is one prominent exception to the general pattern of diffuse responses. That is in the area of bioterrorism, the development and potential deployment, by terrorist organizations, of biological WMD. Quite recently, concerns have been raised that the technology needed to synthesize deadly strains of

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anthrax, bubonic plague, or pandemic influenza may be within the reach of terrorist groups. The challenge, then, is to monitor and control certain “precursor” technologies and methods for biosynthesis of diseases, and to ensure that these do not fall into the possession of terrorist organizations. This area of regulation seems to be the province of export-control and antiterrorism activity. This has tended to be a highly coordinated area of global regulation, often led by efforts of developed nations, and particularly the United States, to ensure that unsuitable entities (whether States or non-State actors) do not receive these technologies. Prevention of bioterrorism has another aspect, and that is a strong public health component. In the event of any disease outbreak, in any part of the world, investigations would need to be conducted as to the source of the pathogen and its vector of transmission in the general population. The monitoring and detection of infectious diseases (as was considered in chapter 7) is largely the function of the WHO, as aided by national public health entities, such as the Centers for Disease Control and Prevention (CDC) in the United States, and comparable bodies in Europe and Asia. To mitigate and ameliorate the effects of a bioterrorism strike, strong and effective responses would have to be initiated by these institutions, with the support of national governments. These measures would probably have to include quarantine programs, limits on international travel, population surveillance to ensure the outbreak is controlled, and the tracing of a pathogen back to its source so that the perpetrators of the strike can be identified, apprehended, and prosecuted.18 Recent advances in biological sciences and technologies thus pose a number of challenges to the international community. There is every reason to believe that these developments will continue to accelerate over the coming decades, resulting in increased international tensions as the stakes of biotechnological applications and effects continue to escalate. It is by no means clear that the mechanisms of international governance have been entirely successful in managing these changes and challenges. Whether it is intellectual property rights or liability and compensation regimes for GMOs, the ethical and policy dilemmas of cloning and stem-cell research, or the terrible threat of bioterrorism, this complex of issues surrounding technological applications of the life sciences, all strongly counsel for new approaches to international legal regulation. Greater coordination will need to be sought between national regulatory agencies and international institutions. The normally glacial or sclerotic pace of international legal regulation—often through the time-consuming process of negotiating treaties—will have to be quickened, although not so fast that international law-makers and policy-makers are acting ahead of a scientific, technological, or engineering consensus about the nature and scope of the problem to be addressed. Biotechnical innovations can potentially strain the global governance system past its breaking point, especially at times of authentic crisis. It would be best that these governance issues were addressed well in advance of such a potential disaster.

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Space Exploration and Technologies After nearly fifty years of space exploration, including satellite launches, automated probes to all the planets and beyond our solar system, mannedspace exploration in Earth’s near orbit and the moon, space exploration— and exploitation—is entering a new phase of development. With the end of the cold war much of the impulse for space exploration has subsided, even though the use of outer space as a platform for military operations and the application of space technologies remain significant. The other conditioning factor for continued space exploration is economic. Operations in outer space—whether the launching of unmanned satellites or probes, the construction of facilities in orbit or on the moon, or manned-space flight to nearby planets—is incredibly expensive. No single nation—not even the United States—is in a position to fully fund a complete space exploration program. Space-faring nations have thus sought to combine into consortia for various projects, to create cooperative institutions (such as the European Space Agency and various satellite-maintenance organizations),19 and even to privatize some aspects of their operations. Private sector activities in space exploration are starting to expand, as the number of applications of space technology for commercial exploitations are also growing.20 Where a nation’s air space ends, and outer space begins, can still be contentious. The usual rule of thumb is that a State’s sovereignty over air space ends at the lowest altitude where a satellite can continually remain in orbit without disintegrating. The flight envelope of high-flying fixed-wing aircraft (such as the U.S. U-2 spy plane) is still considered to be in air space, while the Space Shuttle orbiter traverses outer space. The International Space Station (ISS) operates in orbit over the Earth, as a joint enterprise of the United States, Canada, Russia, Japan, and the EU. A very detailed regulatory and jurisdictional regime has been established for the ISS, which may well be a model for future efforts, such as human habitations on the moon or on Mars.21 The resources of outer space include not only near-orbit locations and applications, but also the moon and other celestial bodies. As technology is refined to use these resources, so too will international law be implicated. For example, substantial technology exists today for remote sensing of the Earth’s land areas by satellites in orbit. Sophisticated processing of raw telemetry from this sensing has either national security dimensions or vast commercial potential. A UN body has recommended some sort of accommodation between the proprietary rights of satellite-launching nations with the interests of those nations being sensed, particularly when the information being gathered involves natural resources or environmental harms.22 An even more difficult dispute arose concerning the limited number of geostationary orbit slots—those specific locations over the equator where a satellite remains in a fixed location above the Earth. These slots are essential for many forms of telecommunications satellites, and many developing nations located on the equator asserted in 1976 a form of territorial sovereignty or

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preference over these satellite “parking spaces.” This matter was only resolved when an international institution—the International Telecommunications Union (ITU)—agreed to set aside allocations for geostationary orbits for the future use of developing nations, rather than assigning them all to space-faring nations now. In addition, in 1996, the UN General Assembly adopted a declaration on International Cooperation and Use of Outer Space, which specifically addressed the question of geostationary orbital spaces.23 The ITU has also asserted jurisdiction over the allocation of frequencies used by orbiting satellites, in order to ensure a minimum of interference between competing international telecommunications services.24 Disputes about near-orbit uses of outer space are significant as a matter of global governance over common resources (discussed in chapter 8). Despite what one might think about the limitless resources of outer space, these uses have many things in common: they are constrained, exhaustible, and proprietary. Whether it is a limited number of geostationary orbital parking spots, or the use of remote sensing for purposes of resource exploitation on this planet’s surface (especially the search for water and hydrocarbons), these questions can result in substantive disputes between nations. Again, as with controversies surrounding biomedical advances, there appears to be a piecemeal approach to international regulation, featuring a bewildering array of international organizations (the UN and ITU), as well as a penchant for diverting the resolution of such problems into treaty negotiations that can take decades to bring to fruition.25 Another significant aspect of international law’s regulation of space exploration, including the uses of the moon and celestial bodies, is the rule that these resources are the “common heritage of mankind.” Both the 1967 Outer Space Treaty and the 1979 Moon Treaty use similar language to describe this concept. And while nations are comfortable in disclaiming title to territory on the moon, that does leave open the legal consequences of exploitation of resources on celestial bodies. Whether it is refining water on the moon, mining asteroids for rare minerals, or virtual tourism on Mars, these issues are likely to become more pressing. Does the common heritage principle mean that such activities must be under international control or that property rights derived from celestial objects are inadmissible? Until we have an authentic dispute raising such issues, such questions are, alas, academic.26 One thing, though, that is not speculative is that uses of outer space pose real dangers to human safety, international security, and environmental protection. Although the common heritage principle was meant to ensure peaceful uses of outer space, the risk of military applications in near-orbit are quite real (including antiballistic missile [ABM] technologies).27 A handful of treaties pledge international cooperation in the safety and rescue of spacefarers. Environmental damage from space activities is addressed in a 1972 Convention on International Liability for Damage Caused by Space Objects.28 This instrument imposes absolute liability (no exceptions, no limits) on the State that launches an object into space. So, in the 1978 crash of a Soviet satellite over Canada, and the 1979 disintegration of the U.S. SkyLab, the

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launching States acknowledged international responsibility for damage occurring on the Earth’s surface. A more serious problem may arise from a fairly prosaic problem: space junk. This is the clutter that has arisen in Earth’s near-orbit after nearly a half-century of satellite launchings, ballistic missile tests, and other activities. If left unchecked, this problem could render Earth’s near-orbit useless because of the risk of collisions between orbiting objects and space debris. Registration of orbiting objects has become a priority, as have attempts to destroy or down larger pieces of space junk (as the United States accomplished with a spy satellite in February 2008).29 Although the potential for the militarization of outer space has somewhat diminished after the cold war, there are still concerns that emerging spacefaring powers (most notably China) may seek to gain advantage by testing exotic technologies that would have the effect of disabling or even destroying existing satellites or space infrastructure.30 And, if all this were not enough, there is an ultimate issue for globalization—the very concept of planetary defense. Recently, substantial attention has been devoted to the risk that Earth might face from errant asteroids or meteors, and that an impact on the planet could truly result in “the end of life as we know it.”31 If such a threat were to be identified, it would assuredly result in one of the most pronounced international efforts in space, pursued with the common objective of saving our species from possible extinction. As with biotechnical advances in the past half-century, the greatest promise for accelerated space exploration may well arise from the private sector. Just as biomedical research shifted from government and university labs over the past generation, space exploration and utilization may well come to be primarily driven by private enterprise. The commercialization of space (not just Earth’s near-orbit, but also outer space) is a very real possibility. The currently existing international legal framework of declaring virtually all space resources as the “common heritage of mankind,” thereby placing most of them beyond the realm of private exploitation, may prove to be an unreasonable and unsustainable policy choice for the future. With the commercialization of space technologies and applications will also come the inevitable questions of intellectual property in those innovations. It is just a matter of time before these issues will become pressing, and major changes will have to be made in global governance for outer space and in reassessing some of the most basic legal doctrines in this field.

Privacy and International Law One last area of emerging technologies is worth briefly exploring: the new worlds of biometric scanning, goods tracking, and data encryption, and their impacts on personal privacy. These technologies, in combination with yet others, is narrowing the zone of privacy almost to the vanishing point. Where once it was possible to conduct one’s life activities with virtual anonymity, or at least with a minimum of surveillance and detection, now this is increasingly becoming impossible. Partly this is a function of post-9/11 security

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trends, which have vastly enhanced police powers in many jurisdictions, particularly with regards cross-border travel and financial transactions. Some of these developments predated the terrorist attacks that marked the beginning of the twenty-first century, including (especially in Europe) broad moves toward surveillance in public spaces and increased vigilance with regards to certain classes of potential criminal offenders. Essential to these criminal law enforcement and antiterrorism efforts is the successful tracking and identification of suspects. With vast increases in computing capacity and new developments in biometric technologies, it is now possible for police agencies, using remote surveillance and digital technology, to identify individuals. “Biometrics” describe the technologies that can identify sets of individual human traits and correlate them with known data about those persons. Examples of biometric techniques include retinal scans, iris recognition, finger imaging, hand geometry, facial or voice discernment, and signature analysis. When used individually, or in combination, these techniques (especially retinal or iris scans) can reliably identify particular individuals with nearly 100 percent accuracy. (Unlike fingerprints, one’s retina or iris can be analyzed for patterns that are virtually unique to a particular person.32) Biometrics are being employed for a variety of governmental uses and functions, some implicating sensitive areas of national security, immigration and border control, and law enforcement. It is also being used for lesser governmental purposes, including (in some jurisdictions) voter registration, confirming entitlement to government benefits, licensing or permitting, or access to official buildings. Even more significantly, biometrics are being used in the private sector for a variety of nonofficial uses. The possible legal and policy implications of the widespread use of biometrics, and the potential impact on personal privacy, could be enormous. The use of sensitive medical information to build biometric databases is one concern, as would be actual physical intrusions in submitting to biometric examination. Lastly, there is the integrity and security of biometric data, especially that retained by private, commercial parties.33 If it is not enough that our own persons are subject to being surveilled and identified, there is also the matter that anything we buy, use, move, or touch can be subject to the same kind of tracking. Whether it is the SIM cards in our cell phones, or miniature wireless tags installed in many products (in order to monitor inventories or movement), it is now possible to imagine that virtually any object can be tracked across the planet. (This is quite realistic, with the advent of global positioning system (GPS) satellites, and real-time monitoring capacity.) So, essentially, we have an equivalent set of technologies for object identification and tracking, as we do for human beings. So far, the international legal system appears to be quite oblivious to the privacy implications of these technologies. Some trade rules might impact the use of product-tracking, and one might imagine that some invasions of privacy might be so outrageous as to constitute a violation of international

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human rights provisions, but, generally, there has been no systematic confrontation, by international legal bodies, of the privacy impacts of these technologies. One major exception has been action by the EU. In 1995, the European Parliament and Council concurred in the issuance of a Directive on the Privacy of Personal Data, one of the most far-reaching and protective regimes for data privacy in the world.34 The EU directive defines broad parameters for understanding personal privacy and establishes extensive safeguards for individuals subject to its protections. The EU Directive was criticized by other nations (most notably, the United States) for being too expansive in its provisions, and ignoring the fact that data privacy can sometimes come at a high cost, not only for government regulators, but also for consumers and participants in market economies. It is for this reason that the United States has tended, in both legislative and regulatory contexts, to avoid sweeping privacy protections for personal data, with the notable exception of healthrelated information.35 In order to counter governmental and private surveillance of their personal activities and correspondence, individuals, companies, and other sorts of entities are resorting to a form of self-help. This often takes the form of data encryption—encoding messages or data in ways to avoid detection or intrusion. While the battle between code-makers and code-breakers is an ancient one, encryption technologies today are so sophisticated and powerful that they tend to give the advantage to the party that is trying to protect the privacy of data flows, especially in digital media, including e-mail and Internet communications. Encryption is, obviously enough, a two-edged sword. The same technology that can protect the e-mail communications of human rights activists under surveillance by authoritarian or repressive regimes, can also be used by terrorists to plan their next strike. Governments have taken radically different approaches in the regulation of encryption technologies. Some governments (such as Russia and China) vigorously suppress the use of such methods, while others (including the United States) permit private sector and civil society use of data encoding, provided that the government has a “master-key” to the code, to be used in instances where national security requires the decoding of a communication (often by court order). Most European countries, consistent with the EU Privacy Directive, allow the free private-use of encryption algorithms. Other countries have subscribed to the Wassenaar Arrangement, an international agreement to regulate the export of cryptographic technologies, as a matter of national security.36 If anything is obvious from the foregoing discussion, it is that “technology is fast. The law . . . is slow.”37 To the extent that fast-paced technological change is a defining attribute of today’s globalism, the international legal system will always be lagging behind. Perhaps this is to be expected, owing to the institutional and epistemic reasons already mentioned. Nevertheless, the contemporary international legal order has demonstrated notable dysfunctions in responding to problems caused by rapid—and unexpected—technological

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breakthroughs. These illustrate the limiting capacities of international law to respond to some of the negative manifestations of globalization. Only time will tell if these structural defects in international law will cause insuperable difficulties in managing the most problematic aspects of contemporary globalization.

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Ch a l l e nges for Gl ob a l ism a n d Wor l d L aw

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13

Diversity

One of the most striking challenges for the new world order is that it has

apparently brought about the end of the monolithic State system of sovereignty that has been in place since the seventeenth century. I say “apparently,” because this remains one of the most contested elements of contemporary globalization. As will become readily apparent from my analysis, I think the purported demise of the nation-State system is rather premature; State institutions and systems of sovereignty are alive and well, but there are major rivals to the State-wielded levers of power in international governance, and these non-State actors (particularly transnational corporations [TNCs] and nongovernmental organizations [NGOs]) will be considered in this chapter.

Dissolving the Westphalian State System? It has been argued recently by a number of scholars that the modern nationState has become outmoded by the economic, cultural, and social aspects of globalization, which are largely beyond the means of States to control. The emergence of a “borderless world,” as was discussed in chapter 7, can certainly give credit to the notion that the concept of bounded territory, which is necessary for State sovereignty, is no longer a meaningful concept for describing political and social change. Under this theory, the nation-State has lost its dominant role in international governance (in both the political and economic senses of that concept) and is being supplanted by transnational networks of authority and non-State actors. Taken to its extreme, this theory of globalization—called by some as “hyperglobalization”—will inevitably involve the decreasing relevance and ultimate withering away of the nation-State.1 Before assessing the merits of these hyperglobalizing contentions, it is worth considering the contours of the international system that is purportedly being replaced by globalization. As was narrated in the first part of this book, the contemporary community of nations was premised on the principle of territorial sovereignty and the exercise of modern State institutions to wield military, economic, fiscal, and police powers over a defined population. Each nation-State was likened to a hermetically sealed unit—autonomous and

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independent, owing no allegiance to any higher authority of rules or norms, except that which had been consented to by that entity.2 In the Westphalian system—established under the 1648 Treaty of Westphalia which ended the bloody religious wars of sixteenth-century Europe and ushered-in a period of consolidation of State power over populations based on principles of nationality—States, and only States, controlled the levers of power in international relations.3 Of course, this monolithic vision of international relations—in which States were the only subjects of international law and the only actors of note on the international scene—was starting to degrade by the cataclysmic events of the early twentieth century, most notably World Wars I and II. It would be extravagant to suggest, as have some hyperglobalizers, that just because the nation-State’s monopoly on power and influence has been broken, that this is somehow attributable to the inevitable and inexorable characteristics of the globalizing movement. Rather, it should be properly viewed as the culmination of a century-long progression of developments, as both the subjects of international law (the authoritative law-making actors and parties affected by international rules) and objects of international law (the legitimate topics of international legal regulation) have grown and diversified. As more and more issues have become of international concern, and been placed under the auspices of international treaties, rules, and practices, it is obvious that State sovereignty—an ultimate freedom of action without limit—has been constrained over the past century, as States have become increasingly bound to international norms. Although the processes of globalization have provided a functional impetus for international cooperation, the key dynamic for this development has remained State consent. Developments in the international law of human rights (discussed in chapter 5), the emergence of international environmental norms (see chapters 7, 8, and 12), and the growth of international trade disciplines (chapters 8, 9, and 11) are all indicative of measured State responses to globalizing moves.4 So, if we suppose that the Westphalian model of State sovereignty is dead (or dying), what is to take its place? The two leading metaphors in globalization discourse are the notions of the market-State and of cosmopolitanism. Each reflects different trends, and each has different implications for the future of international law. The idea of the “market-State,” as distinct from the old “nation-State,” derives its appeal from the manifest economic costs and benefits of globalization, including trade liberalization, the free movement of goods, services, and capital across borders, and the panoply of trade and regulatory disciplines (see chapter 9) that have emerged in the past generation. (Of course, there is nothing new about the market-State; traditional nation-States have reflected these trends and values, as was apparent with mercantilism in seventeenth-century France and Holland, and eighteenth-century England.) The traditional nation-State, so the theory goes, is unsuited to respond to these changes, and so must reinvent itself (and its State institutions) to survive.5 The market-State

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will tend to act as any rational economic actor might, by engaging in consolidation of internal markets (witness the European Union), fierce competition for foreign markets, and forced wealth transfers to promote economies of scale and efficiencies. Under this model, all aspects of international cooperation are subordinated to economic and market considerations. If the underlying economic rationale is the promotion of the greatest good for the greatest numbers, then market-States should promote the best quality of life for all people around the world. On the other hand, as with any State system that is Hobbesian in its outlook; international life, in a world of market-States, could very rapidly become nasty, brutish and short. The alternate model of the contemporary State system is the principle of cosmopolitanism. First enunciated by Immanuel Kant (and introduced in chapter 2), cosmopolitanism emphasizes the fundamental moral status of individuals and the goal of achieving global justice not only within political communities, but also between them. Cosmopolitanism seeks a middle ground between the bounded territoriality of State sovereignty (the old Westphalian system) and the unbounded and borderless world of the hyperglobalists. In a cosmopolitan world, individuals might have affections and attachments to a variety of polities, and a flexible definition of citizenship and nationality.6 A cosmopolitan model for a State system would certainly harbor many challenges for international law, which, despite its progressivism and reforms, depends (for its practical enforcement) on individuals and juristic entities (such as corporations) being linked to one State for purposes of jurisdiction and control. Although the emergence of dual nationality and TNCs (which present multiple sources of authority) in the past century has eroded this principle somewhat, it still remains powerful. Cosmopolitanism’s emphasis of individual autonomy, choice, and dignity makes it an appealing model, but those very values are rather in conflict with other values of the international system: safety, security, predictability, and order. The allure of cosmopolitanism, as with that for the market-State, has to be tempered by realistic assessments of the dangers they present to contemporary world order. Clearly, some aspects of State sovereignty and autonomy are being dissolved in the face of globalizing forces.7 The new world order features clear restraints on recourse to the use of force in relations between nations, the emergence of democracy as an international norm and a defining element for the legitimacy of governments, the use of regional frameworks as a means to advance economic and regulatory objectives, and new multilateral mechanisms for the compulsory resolution of disputes between States. Likewise, there has been a refashioning of the relationship between individuals and their States of nationality, a process that has been ongoing in the past half-century in which individuals have been accorded the status (at least for some purposes) of being an authentic “subject” of international law. International law has been applied to the economic relationships between individuals and States other than their own country of nationality (based on principles of State responsibility), just as the old lex mercatoria (see chapter 4)

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has been revived to provide a private international law overlay to many crossborder and transnational business relationships and transactions.8 It is also important to recognize that, in the past generation, there have been strong forces at work, resulting in the disaggregation of State institutions. Putting aside polities that are already politically characterized as decentralized, or federal jurisdictions (such as the United States, Canada, Australia, or Germany), there have been other phenomena at work. Regulatory agencies within States, previously subject to command-and-control by the top political echelons of the country, are becoming increasingly independent, as has been witnessed by the substantial autonomy granted to central banking institutions, securities and business regulators, and some environmental protection entities. In addition (as will be discussed elsewhere in this part), judicial independence is being taken seriously in many polities, with the result that domestic courts and tribunals are not necessarily following the policy leads of executive authorities and legislative bodies. Lastly, political subdivisions of existing States (even nonfederal ones) have asserted substantial new authority in the foreign relations realm. They have claimed for themselves the right to conclude agreements with similarly situated jurisdictions across international boundaries (in order to effectuate a common goal, whether economic or environmental or social), or even to pursue their own foreign policy objectives.9 Another set of tensions besetting the traditional nation-State is that the primary means by which countries have coordinated and harmonized their functional activities and policy objectives in the past century—through public international organizations and the negotiation of comprehensive treaty instruments—have become seriously dysfunctional. Quite apart from the institutional problems of organizations like the United Nations (UN) and some of its subsidiary agencies (bloated budgets, overpaid and complacent staff, unnecessary turf battles between entities, and operational incompetence), is the perception that the traditional machinery of international law-making is wearing-out. The quality of discourse in international institutions, never very high (especially with the heated rhetoric of the cold war), seems to have further degraded. Treaties take years to negotiate, and then countries fail to ratify them. Even when treaties are concluded and ratified, they are often never fully implemented and only spottily enforced. The highly touted system of international dispute resolution (including the International Court of Justice, human rights and war crimes tribunals, and specialized arbitration mechanisms) often do not produce definitive, or even sensible, decisions, leading the parties to seek other means to settle their disputes. Taken together, all of these developments have indicated that the modern, Westphalian nation-State system is under challenge, but certainly has not collapsed or been rendered irrelevant by globalizing trends. The balance of this chapter will look at the two competing sources of non-State power in today’s world order—TNCs and NGO networks—and assess their impact on the structures and institutions of international law.

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TNCs as Shadow Market Governments Transnational corporations (TNCs) are the nongovernmental manifestation of the market-State. Of course, global economic combines are hardly a unique feature of the current phase of globalization. Transnational business entities have existed during every phase of globalization in human history, whether the network of factors and financiers during the Renaissance and age of exploration, or the East India Companies (both British and Dutch) during the 1700s and 1800s. Obviously, though, TNCs have grown tremendously in number and influence over the past century, partly because every domain of commerce (including all trade in goods and services) has become globalized. Areas of the service economy, in particular, which a few years ago were highly localized (such as insurance, banking, and even the practice of law) have increasingly become multinational enterprises, through such mechanisms as cross-border marketing, franchising, and branding, as well as outright mergers and acquisitions. The annual earnings of many transnational conglomerates (especially those in the energy, manufacturing, retailing and information technology sectors) exceed the gross domestic product (GDP) of many nations in not just the developing world, but also the industrialized North. For example, the annual sales of General Motors in 2000 exceeded the GDP of Denmark, while those of Walmart exceeded those of Poland. The 200 largest TNCs account for nearly half of the globe’s industrial output. If one aggregates nation-States with TNCs, 51 of the 100 world’s largest economic units are corporations, while only 49 are States.10 Needless to say, TNCs are organized in highly efficient ways, or otherwise they would not have the success that they have registered. Often acting through national subsidiaries, answerable to a centralized management structure, these entities are able to engage in many of the activities and functions we associate with the traditional nation-State: market-making and regulation, intelligence gathering, social welfare programs (for their employees and other stakeholders), and even self-defense in the form of corporate security units. Major TNCs are also the leading agent of foreign direct investment (FDI) in the developing world, as they seek new markets, and even more importantly, cheaper (and less-regulated) labor pools from which they can staff their operations.11 An even more ominous development has been the extent to which nationStates have been “out-sourcing” or privatizing traditional governmental activities and delegating them to TNCs. This has the effect of not only impoverishing State control and authority over what may be essential functions, but it also confers on TNCs some of the essential attributes of State authority. These delegations have extended so far as to include the provision of basic public services (including social welfare and public health), control of regulatory mechanisms in the business sector, and, most problematic of all, the maintenance of public safety, policing, and even national security.12

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With their newfound power and influence, TNCs are certainly starting to weave distinctive threads into the fabric of international law. For starters, TNCs have proven themselves to be formidable actors in traditional international law–making settings, such as treaty negotiations and international institutions. Often acting through trade associations, a kind of NGO (more on which presently), transnational corporations can often direct the substantive outcome of decision making by States. Whether it is establishing the terms and conditions of liability for their activities (as have occurred in a variety of international environmental fora), or prescribing the rights of workers (as happens in International Labor Organization meetings), TNCs can demand serious concessions from nation-State regulators, and insist that their interests be respected. Even more startlingly, TNCs are increasingly making binding international norms completely outside the usual mechanisms for international law– making (which were hitherto dominated by States). As was discussed in chapter 4, there has long been a lex mercatoria, in which private merchants make binding customary law for themselves, that is enforceable in national courts or international tribunals. This process (which will be discussed in more detail in the next chapter) has, if anything, accelerated in the past decades, with many areas of global regulation being delegated to private organizations for the proposal of draft conventions or regulatory instruments. Some examples of this dynamic are the Comité Maritime International (CMI) in Brussels, which develops international maritime law rules, or the International Chamber of Commerce (ICC) in Paris which creates norms of conduct governing such disparate issues as interbank transfers, documentary credits, and negotiable instruments. In addition, groups of international commercial actors often agree to voluntary codes of conduct, concerning matters of international public concern, such as compliance with anticorruption rules, or the treatment of child laborers, or environmental protection. Oftentimes these codes of conduct are concluded in order for industries to certify that they are engaged in best practices (and thus win market-share or public approval), or, in some circumstances, to head off formal domestic or international regulation of their activities.13 The conduct of TNCs has increasingly come under scrutiny for potential human rights violations. If TNCs are to be regarded as having rights and privileges under international law, the supposition goes, so, too, must they have duties and obligations, and in instances where those are violated, they must be held accountable and responsible. Until very recently, TNCs felt themselves under no duty (fiduciary or otherwise) to protect the interests of overseas employees and customers, of people living in proximity to their operations, or, indeed, anyone other than their shareholders and immediate stakeholders. With the advent of human rights cases being brought against U.S. companies for their operations overseas, under the U.S. Alien Tort Claims Act (ATCA),14 many TNCs are starting to realize that they could be liable for the misdeeds of their overseas subsidiaries, especially in situations where they are actively cooperating or colluding with governments in repressing local populations

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(especially indigenous groups) who are resisting environmentally damaging development or infrastructure projects. The TNCs have responded to this risk by agreeing to voluntary codes of conduct regarding their overseas operations, to oversight by certification organizations or other NGOs, and (in rare cases) to compliance efforts conducted by their home-State governments (including anticorruption and bribery legislation).15

NGO Networks and Cosmopolite International Society To the same extent that TNCs reflect many aspects of the changing nature of sovereignty with the new market-State, NGOs and transnational networks of individuals, advocates and experts (what are known as global civil society) reflect many of the values and predilections of cosmopolite international society. Transnational civil society manifests globalizing tendencies not only from grass-roots origins, but also from elite and privileged groups within various societies. In this sense, cosmopolitanism is largely indifferent to the motives and aspirations of various segments of global civil society, provided that they seek to achieve international political, economic, social and cultural objectives through cross-border organizing, lobbying, advocacy, and (if need be) protest. Transnational civil society is actuated through membership in NGOs, and through even more inchoate network mechanisms. Of these two phenomenon, NGOs are the more formal and institutional type of actor. NGO influence in international affairs began in the eighteenth century, with the rise of the antislavery social movement, both in Europe and North America, and with the creation of the International Committee of the Red Cross (ICRC) in Switzerland, which was charged with the superintendence of new international humanitarian law norms for the protections of civilians and combatants in war-time. After periods of hostile reactions by States— particularly during the cold war—NGOs began to increase their influence in the 1970s and 1980s. This was particularly manifested in increased participation as observers and experts at international organization meetings, such as the UN, human rights bodies, and international environmental fora.16 This type of participation in international governance has increased in the past decades, but NGOs have also expanded their functions and duties. Some engage in fact-finding and oversight in various countries (whether to monitor human rights situations or the fairness of elections). Other NGOs have supplanted traditional aid and development organizations, providing more efficient delivery of goods and services to needy populations. Yet other NGOs have taken a stronger advocacy role, seeking to participate in international tribunals by submitting amicus curiae (“friend of the court”) briefs or providing expert testimony. International NGOs has thus assumed the role of many domestic membership organizations, with all of the lobbying and interest-group muscle that those institutions have acquired.17

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Perhaps even more powerful and influential than NGOs, but rather more invisible, have been informal transnational networks that have arisen in the past decades. Known in sociological lingo as “epistemic communities,” these are groups of like-minded individuals and subject-matter experts that collaborate in guiding the course of international affairs. Interestingly enough, some of these transnational networks have situated themselves in governmental circles, such that bureaucrats working in the same regulatory area from different countries (whether banking, securities enforcement, or environmental protection) might find that they attend many of the same collaborative meetings, exchange data and best practices, and gradually harmonize their regulatory actions over time. The same phenomenon has been observed with the judges of various countries (especially supreme court or constitutional court justices), meeting regularly in informal consultations or academic settings. While the agenda of such sessions may have banal topics (such as promoting judicial independence), the real work of collaboration is done behind the scenes, with the inevitable result that judges and officials from various nations are inculcated with cosmopolite values.18 Apart from governmental officials or regulators, transnational networks might include private individuals from various sectors of global civil society. Scientists, doctors, and public health officials from various countries have been collaborating on surveillance and treatment of highly infectious diseases. Artists, writers, software designers, and filmmakers from all nations can generally agree that they desire higher degrees of international protection for their intellectual property. Academic and professional practitioners of international law from all jurisdictions—what is known as the “invisible college of international law”—work toward the expansion of the rule of law in international affairs, and the broadening of their academic and practice opportunities. The cosmopolitan effect of these transnational informal networks is the subtle change it works on the attitudes of the participants. People entwined in these networks tend to view that they have more in common with their international colleagues than they might have with the fellow citizens of their own country. Of course, this confusion of loyalties and allegiances can be problematic for the functioning of the traditional nation-State.19

Neo-medievalism and the Future of the Nation-State The diversity of international legal actors and major players in processes of globalization have led some scholars to speculate that we have entered a new world of global governance. Given the evocative name of “neo-medievalism,” this new phase in the way that governmental and nongovernmental entities interact with each other may not be very new at all. As in the Middle Ages, before the advent of the modern, Westphalian nation-State in Europe (see chapters 2 and 3), an individual or community might have a multitude of sovereign or corporate loyalties, running in different directions. A local warlord might have held feudal obligations to a superior noble and to the Church,

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while he, himself, may have been owed obligations by nearby vassals and townships. Merchant guilds and university colleges may have reported to higher secular or religious authority, even as they exercised substantial power of their own. Neo-medievalism is the notion that there can be, in fact, multiple authorities exercised over the same individuals, communities, transactions, relationships, events, or bodies of law. As in the Middle Ages, multiple authorities create multiple loyalties, thus destroying a monolithic system of governance (as in the Westphalian nation-State model) in which all authority in a domestic polity derives from the sovereign (whether a monarch or a republican government of representative institutions) and is exercised against all subjects in a vertical fashion. Contemporary global politics has been likened to medieval models insofar as we have, at present, a variety of species of entities that can exercise authority over matters of international concern: States, treaty-based public international organizations (such as the UN and its specialized agencies), subnational entities (autonomous municipalities or provinces), regional bodies (such as NAFTA [North American Free Trade Agreement], the EU, or European Court of Human Rights [ECHR]), supranational organs (such as the World Trade Organization [WTO]), TNCs, NGOs and networks, and other non-State players. Together, these entities, polities, and actors create a mosaic of governance and international law– making, application and enforcement.20 Putting aside the question of whether these “new” features on the landscape of globalization and international law creation are really novel at all, it bears consideration of whether they fundamentally shift the dynamics of global governance and do subvert the authority of traditional nation-States. The key question would seem to be whether any of these competing institutions and structures for global governance can actually compel behavior by nation-States that those countries would not otherwise be prepared to accept or countenance. Some recent scholars have been highly skeptical of this proposition, and perhaps rightly so.21 Nevertheless, the most compelling set of actors in this neo-medieval calculus will be subnational units, regional organizations, and supranational entities. Subnational polities (whether states in a federal government, or autonomous regions in other countries) already possess substantial domestic constitutional authority and legitimacy, so it is merely a question of whether these entities can successfully assert control over matters of international concern. The traditional nation-State system has discouraged this, preferring to have each country “speak with one voice,”22 but this may be changing as polyphonic theories of federalism and State authority begin to emerge in the foreign affairs realm.23 And, as noted above, as high court judges of different legal jurisdictions meet and confer with each other, they may become more comfortable with giving their sanction to this new development.24 Regional and supranational institutions may offer an even more urgent and compelling vector for neo-medievalist models of global governance. Of course it is important to note at the outset that these institutions are all the

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creatures of State consent. The NAFTA, European Community (and then Union), the European and American Human Rights Commissions and Courts, and the Association of Southeast Asian Nations (ASEAN), were all established by treaties, and given the full imprimatur of State consent and sanction. Nevertheless, these regional bodies have tended to aggregate their power and authority, in some instances far beyond the original intentions of the treaty-drafters. The EU is currently in a process of reinvention, seeking (by national referenda or legislative approval) to “constitutionalize” an economic and social “single-market” entity into a fully realized European supergovernment. The European Convention on Human Rights, as interpreted by the European Court of Human Rights, has de facto become the fundamental civil rights law for all of Europe, supplanting the formal and informal constitutional regimes of almost all European nations (including even the United Kingdom, which had long been resistant to such a change).25 Finally, and perhaps most controversial of all, has been the role of supranational institutions. Entities such as the WTO began their institutional lives as traditional, treaty-based and State-consented bodies. What distinguishes WTO and a handful of other universal organizations is the extent to which they have diverged from their original State-centered modes of operation and have, instead, sought legitimacy from, and accountability to, a wide variety of international stakeholders, as well as pursuing goals and embracing values that might be divergent from the interests of many (if not most) States. Another distinguishing factor for these supranational entities is the degree to which they can also compel States to obey their decisions, without recourse to domestic enforcement mechanisms. Indeed, organizations like WTO have both a strong public and private international law character, and it is their ability to remit their mandate as against private parties (most notably TNCs) that makes them quite influential. Only those public international organizations that have been strongly “entrepreneurial” in the interpretation of their constituent charters, that have been prepared to press the limits of State authority and State interest, and to embrace either (or both) the realities of market-State or cosmopolitan global politics, are likely to succeed as supranational entities. If they make this institutional transition, they can be a force to be reckoned with in challenging at least some aspects of nation-State prerogatives in international law–making.26 Despite the reality of a diversity of international actors today, it is important to realize that the prospect of neo-medieval global governance is something freighted with meaning and fraught with danger. Despite its traditional and hide-bound ways, the nation-State system—with States as the leading player in global governance—at least has the virtue of predictability and stability. A neo-medieval world order, which (at its core) is characterized by multiple lines of authority and allegiance, runs a number of risks. One is of the simple calculus of interest-group politics. Public choice theorists have long realized that if there are multiple organs of authority, and divergent paths to achieve some policy goal, rational actors will tend to push the easiest political levers to get what they want. As will be considered further in the

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next chapters, this can raise profound problems of legitimacy, transparency and accountability in the international system. Even more pertinent is the concern that to the extent to which global governance is influenced by actors seeking their own particularistic self-interests (the prerogatives of an international institution, shareholder value for a TNC, or the sometimes eccentric goals of an NGO), the global good can be ignored. This is certainly not meant to suggest that nation-States are the ultimate repository of rationality or the greatest good for the greatest numbers. Nevertheless, nation-States premised on democratic values can, at least in most circumstances, be depended upon to properly and faithfully represent the interests of their national constituents. As a matter of scale and authority, States offer the best chance to capture and apply the aggregate interests of large populations on the planet. So, despite the readily discerned defects of the contemporary international legal order, it would be extravagant and even silly to declare the end of the nation-State as an effective and legitimate instrument of global governance. Whether there has been an actual decline in State power is hard to tell at this juncture. In reality, it may just be that we are changing our notions of State sovereignty to accommodate the new realities of non-State actors and diverse sources of international law–making authority and enforcement.

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Permeability

T

he multiplicity and diversity of international actors has been accompanied, in the past generation, by the ever-increasing porosity of national boundaries. Although we have certainly not reached the stage of “borderless” international society, quite clearly one of the hallmark features of contemporary globalization (as discussed in chapter 7) has been the increased mobility of persons, goods, and capital across the planet. Before opining on the international legal significance of these globalizing phenomena—and there have been many notable impacts on international law doctrines, processes, and institutions—it is worth summarizing the main permeable features of today’s global culture. The unimpeded movement of capital between countries, whether as part of foreign direct investment (FDI) or the acquisition of currency reserves or other business activity, has been seen as an attribute of increased mobility across borders (see chapter 7) as well as increasingly strong trade and regulatory disciplines respected by all nations (chapter 9). The global free-movement of capital is, in large measure, attributed to the inchoate and immaterial character of money and investment. Electronic funds transfers (EFTs) make moving money around the world quite frictionless, even with national regulation and oversight of these movements. The easy flow of money makes almost all global financial markets dependent on one another, and that very situation of interdependence is what requires legal, regulatory, and policy responses to what may be regarded as market imperfections, dysfunctions, or outright pathologies. The other major aspect of the porosity of national boundaries, with its concomitant effects on global governance and international legal structures, are patterns of human migration. Unlike capital flows—which have (in many respects) been deregulated as a conscious policy of countries to abide by a neoliberal, “Washington Consensus” approach to development— immigration, and movements of people across boundaries has been subject to substantial nation-State scrutiny and regulation. This has especially been so in the context of post-9/11 national security considerations and the on-going debates in many post-industrial nations (such as the United States, Great Britain, France, and Germany) about immigration reform and the role of guest-workers and migrant labor in their national economies. It is by

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no means clear whether the world is experiencing today the scale of cross-border human migration that occurred from 1650 to 1914 (with the African slave trade and mass emigrations from Europe to North America). While migration for economic reasons (seeking a better life) remains the chief motive, some emigration flows have been attributed to armed conflicts and civil strife or natural disasters. It has been suggested, though, that the majority of contemporary migration flows have been intra-State, with vast movements of people from farms and the rural countryside to settle in teeming and already overcrowded cities (as has been occurring in China, India, Brazil, and South Africa).1 Nevertheless, contemporary cross-border migrations have had an impact not only on international legal doctrines, such as the treatment of refugees and national security screening,2 but also have impacted core concepts of citizenship and national allegiances. With more and more countries accepting a “mosaic” concept for the social acceptance of new immigrant communities, instead of insisting on a rigorous “melting-pot” approach to assimilation, migration patterns have become a central issue of the new cosmopolitanism. Citizenship, once the central tenet of the relationship between an individual and a nation-State, has undergone a radical transformation. Dual nationality is increasingly common, especially as many states (such as Italy, Ireland, and Israel) continue to promote a “law of return” for former emigrants, and the desirability of having collective citizenship in new market-State entities (such as the European Union [EU], and, to a lesser degree, NAFTA [North American Free Trade Agreement]) grows in intensity.3 Migration affects basic structures of the traditional nation-State, such as social welfare systems, which is the main source of tension as to the status of immigrants in many European, North American, and northern Pacific polities. Guest-worker movements also have an impact on trade and balance-ofpayment regimes, especially as these immigrants make substantial remittances back to their families in their home countries, often accounting for a large part of the source country’s foreign exchange.

The Revival of the Lex Mercatoria Taken together, the permeability of national frontiers to movements of capital and of migrants accounts for many recent international legal developments. Many of these changes emphasize the interpenetration of various domestic legal systems, even as they operate on the international plane to affect transnational relationships, transactions and events. The first of these changes worth noting has been the revival of an unwritten (or, at least, an uncodified) customary law governing international commercial relationships and a coordinate expansion of trade rules and principles of private international law to support the structure of a merchant-driven international economy. As was partially narrated in chapter 4, the original conception of global law included an aspect of the “law of nations” derived from the practices and usages of international traders, the lex mercatoria. Originally, this was a

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self-contained customary law system, in which usages were established and confirmed by the merchants and market participants concerned. Over time, and beginning in the fifteenth and sixteenth centuries, the emerging Westphalian nation-State sought to “tame” and “order” this exogenous legal system. The law merchant was adjudicated before national tribunals, first before panels of disinterested traders (in England, on the Continent, and even in the Far East), and then before lay juries in those jurisdiction. In a further transition, beginning in the mid-nineteenth century, mercantile and commercial law became the subject of national codification and systematization efforts. Finally, beginning at the commencement of the twentieth century, these diverse national commercial codes came to be harmonized by uniform law treaty instruments, essentially converting (over the course of five centuries) a purely customary law regime, based on the practices of merchants, into an international law regime (with both public and private law aspects).4 The “new” lex mercatoria has attributes of each of the earlier phases of its development: adjudication by domestic tribunals, national codification, and international harmonization by treaty-making. But particularly notable is the law merchant’s return to its community-based and customary origins. Increasingly, international commercial law–making is being restored to trade association, NGO, or transnational network-based institutions, such as the International Chamber of Commerce (ICC) or Comité Maritime International (CMI). Even more significantly, as to the adjudication of actual commercial disputes, the vast majority of these are being settled through international commercial arbitration mechanisms, many of which are sponsored by law-making institutions, such as the ICC. So, in many different commercial and transnational business contexts, we are witnessing the return of merchant (or at least private and specialized) judges and juries.5 Despite these developments, the lex mercatoria does remain subordinate to nation-State institutions in one obvious respect: it is subject to be overridden by national enactments and (in rare instances) by domestic tribunal decisions. National legislatures and courts may prefer to substitute their policy judgments of a common good in international commercial relations, for the particularistic and self-interested objectives of the market participants themselves. In reality, national legislatures have largely ceded international commercial law–making authority to treaty processes (which are slow and sclerotic), and so, by default, the new customary law of international business transactions is holding sway. Likewise, national tribunals virtually never disturb the results of pure international commercial arbitration awards (those featuring one commercial party claiming against another, as opposed to a nonmerchant consumer), absent extraordinary reasons.6 Under the new lex mercatoria, public and private international law merge into an indistinguishable and seamless complex of commercial norms, practices, rules, and laws. The global trading architecture—as supported by supranational entities such as the World Trade Organization (WTO, see the last chapter), and a bevy of specialized lawmaking or codifying entities (such

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as the UN Conference on International Trade Law (UNCITR AL), or Hague Conference on Private International Law, or UNIDROIT)—support this new move toward merchant autonomy and independence from State actors and regulators. As already discussed, this may well be a manifestation of the emergence of market-State impulses in international affairs. Just as plausible, it reflects a realization that private market forces are more likely to adopt rational and reasonable rules for the conduct of international business transactions than traditional State authorities.7

Extraterritorial Applications of Domestic Law Another feature of porous national frontiers and of permeable legal regimes are the growing controversies surrounding the extraterritorial applications of one nation’s domestic law as a means of resolving legal issues or disputes arising in another jurisdiction. The normal presumption is that one nation’s law applies only to acts or events occurring within its territory or as against its own nationals.8 Some countries—most notably the United States—have pushed the boundaries of extraterritorial application of domestic law, nearly to the breaking point. The first instances of the extraterritorial use of U.S. law was in the field of antitrust regulation and enforcement, where there was a substantial economic policy justification to do so. The United States was among the first countries to legislate strict rules to control monopolistic behavior by business combinations. One would think that in order to make antitrust enforcement effective, such legislation would have to be applied equally to both U.S. and foreign businesses. Otherwise, U.S. businesses would be operating at a substantial disadvantage, while foreign competitors could seek to subvert the U.S. market by making anticompetitive agreements. Under what theory could the U.S. prosecute or enjoin the monopolistic activities of foreign businesses? The answer was provided by a panel of the U.S. Court of Appeals for the Second Circuit in United States v. Aluminum Co. of America (Alcoa).9 The complaint charged that Aluminum Ltd., a Canadian entity, had formed in 1931 a cartel (rather brazenly called “the Alliance”) with German, Swiss, and British companies, in order to corner and control world markets in aluminum. Each member of the Alliance was given a production and sales quota, and at least initially, the U.S. market was not included in the quota. In 1936, the Alliance scheme was changed somewhat and imports into the United States were tacitly included in the scheme. The United States later charged that the Alliance constituted a violation of Section 1 of the Sherman Act that “every contract, combination . . . or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”10 The Circuit ruled that the Sherman Act had to be construed consistent with “the limitations customarily observed by nations upon the exercise of their powers.” Nevertheless, the court held that the Sherman Act

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would only penalize that anticompetitive conduct that had actual effects in the United States. In finding that the 1936 version of the “Alliance” was intended to operate as a cartel in the United States, the court placed the burden on the defendants to prove that it had no actual impact. Thus was born the effects doctrine in the extraterritorial application of U.S. antitrust laws. The Alcoa precedent has since been recognized by the U.S. Supreme Court,11 and used in a variety of particular antitrust contexts. Needless to say, the United States’ major trading partners—Canada, Europe, and Japan—have vigorously opposed what they regarded as an untoward and illegal extension of United States’ prescriptive jurisdiction over competition matters. In the late 1980s, however, the Europeans at least shifted their thinking and began to give qualified support for the use of the effects doctrine.12 This time it was in vindication of the EU’s own competition policies and directives. The effects doctrine is thus becoming a more widely recognized aspect of the jurisdictional basis of territoriality. Extraterritorial conflicts can also arise when one country purports to regulate the conduct and activities of its citizens abroad. Corporations tend to be the parties that are most often affected by States’ assertions of jurisdiction based on nationality. The most contentious issue in this regard has been the reach of United States’ law to the subsidiaries of U.S. companies located overseas. This has arisen particularly in the context of enforcement of U.S. economic sanctions against foreign nations. For example, when Iranian revolutionaries stormed the U.S. embassy in Tehran in 1979 and took U.S. diplomats hostage, the United States “froze” Iranian assets located in U.S. banks. As an additional measure, the order extended to the foreign branches of U.S. banks. Some nations objected to this extraterritorial enforcement of U.S. law within their respective territories, but under the unique circumstances they did not attempt to foil U.S. sanctions. Just a few years later, in 1982, the United States sought to block the construction of a Soviet natural gas pipeline into Western Europe. To this end, the United States ordered U.S. subsidiaries not provide supplies or equipment for the project. European nations howled with protest, and some (including Britain) passed special legislation purporting to block the application of the U.S. sanctions law in their territory and to punish any U.S.owned or U.S.-controlled business that complied with the sanctions. Most recently, the United States legislated in 1996 the Cuban Liberty and Democratic Solidarity Act, and, in that same year, the Iran and Libyan Sanctions Act, both of which purported to sanction the conduct of overseas entities that “trafficked” in Cuban property expropriated from U.S. interests or did business with Libya or Iran.13 These enactments were also met with opposition by many countries.14 We have in these scenarios a classic “whip-saw.” A subsidiary of a U.S. corporation is forced to decide whether to comply with U.S. law (asserted under the nationality principle of prescriptive jurisdiction) or to obey the contrary law of the State where it is based (legislated under a territoriality principle). It quite literally is impaled on the horns of a dilemma, made all

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the more difficult if one (or more) of the competing States imposes criminal sanctions for violation of its law. (This is not an extravagant scenario: an officer of a U.S. bank with a branch in Switzerland was recently forced to disobey an American subpoena to produce bank records or risk being imprisoned for violation of Swiss bank secrecy laws!) The U.S. Congress tries to be careful in not imposing regulatory requirements on U.S. businesses operating overseas, especially when such would make them less competitive. The U.S. Supreme Court will interpret an ambiguous Act of Congress as not applying extraterritorially in these situations.15 Aside from inchoate principles of comity, there are no international law principles that would be used to resolve this conflict between nationality and territoriality bases of jurisdiction. A handful of U.S. cases recognize a doctrine of “foreign sovereign compulsion,” in which a U.S. national will be relieved of the obligation to respect U.S. law when to do so would place it in irreconcilable conflict with a foreign nation’s law. While some U.S. court decisions have granted this defense, upon showing of a good faith effort to comply with the U.S. law requirements, other judgments have rejected the argument. It has been suggested that aggressive uses of extraterritorial applications of domestic law are a permissible means to enforce beneficial regulatory measures, especially in the absence of effective international law rules, processes and institutions. In short, certain leading nations or combinations—such as the United States or the EU—can press changes in the global legal order by simply enacting their own regulatory solutions and giving them extraterritorial effect.16 This will result in complex webs of domestic law being incorporated and applied into international practice, not only in the international economic field (such as trade or sanctions), but also for global health and environmental issues. There are two obvious drawbacks to such a porous system of extraterritorial applications of domestic law. The first will be uneven application and enforcement. As already recounted, occasionally the international community will acquiesce in one nation’s (or a combination of countries’) attempt to “bid” a new rule of international law, and will quickly seek to place a novel rule of domestic law (for which extraterritorial effect is sought) on a firm global footing, as with incorporation into a treaty regime. Much more often, such unilateral initiatives to impose domestic regimes on other jurisdictions will be stoutly resisted, if just on principle. That leads to the second problem—the legitimacy of unilateralism by a handful of nations seeking to impose their legal and regulatory will over the entire globe. Ultimately, it seems, an effective and legitimate global legal order cannot exclusively depend on the extraterritorial enforcement of selected State domestic enactments.

Recourse from National to International Institutions An alternative paradigm to unilateral, extraterritorial applications of domestic law on the global plane is to design institutional mechanisms by which domestic

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and international legal authorities can efficiently interact. In large measure, this process of institutional design for transnational dispute settlement has been about removing States from the equation. States are notoriously reluctant to initiate virtually any form of institutionalized dispute settlement, much preferring to resolve problems via negotiation, or, on occasion, through nonbinding conciliation or mediation. That often leaves non-State actors—particularly individuals, TNCs, and NGOs—without legal recourse. Under traditional international law, non-State actors were barred from bringing direct claims against nations. Instead, such claims had to be “espoused” by the country of nationality of the victim. The espousing State controlled the international litigation. It could choose whether or not to bring the claim, whether to subsequently settle or compromise it, or whether to handover the proceeds to the victim or pocket them for its own account. Although a handful of international claims commissions (including the U.S.Mexican General Claims Commission, established in 1923, and the IranU.S. Claims Tribunal, created in 1981) have dispensed with the espousal requirement for claims, the vast majority insist on government sponsorship as an element of the claim. The first, and perhaps most difficult, aspect of admissibility in such cases is securing the agreement of one’s own government to make an international claim against another State. This is no easy task and often involves the espousing government deciding that making the claim is worth any possible diminution in good relations with the State receiving the claim. Within the past twenty years there has been a sea-change in the design of international dispute settlement mechanisms: many are now open to the claims of non-State actors, which have none of the reluctance that nations do in pressing their rights in an international legal forum. In some measure, this change can be attributed to the human rights revolution in international law (see chapter 5). Universal and regional human rights systems have entertained individual complaints and petitions for years. While the global human rights system, as actuated through the International Covenants for Civil and Political Rights (ICCPR) and for Economic, Social, and Cultural Rights (ICESCR) and various United Nations human rights review and investigatory organs, has not been terribly effective in deterring malefactor countries from mistreating their citizens,17 regional human rights bodies—especially in Europe and Latin America—have been more successful. The first and most obvious point about regional human rights systems is that they are only as strong and effective as the region’s underlying unity and commitment to democracy and individual rights. Although international law (in general) and human rights (in particular) need not be tied to a particular political system, the reality is that human rights regimes can only flourish in representative democracies. As domestic respect for the rule of law is the first line of defense for human rights, if this esteem is absent in a particular polity, then no measure of regional integration will help. As a general matter, the European experiment with regional human rights norms has been the most successful—in large measure attributable to common European attitudes

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toward the proper role of government in everyday life. The Inter-American system of human rights, by contrast, has had a much more difficult road to travel, especially during the 1970s and 1980s when many of the regimes in Latin America were dominated by the military, and authoritarian government (or worse) was rife. African attempts at creating human rights norms have been notable failures. East Asian and Middle Eastern nations have not even tried. The European Convention on Human Rights has evolved the most sophisticated procedural mechanisms for adjudication of human rights disputes, at least under an international scheme. When created in 1950, the Convention institutions included (1) a Council of Ministers (a political body that conciliated disputes); (2) a Human Rights Commission (which served as an investigator and filter for human rights complaints); and (3) a Court of Human Rights (which actually adjudicated human rights cases). This structure has recently been streamlined to accelerate proceedings and to lessen the role of the Commission. The European Convention institutions were given the power to hear inter-State complaints, as well as those brought by individuals against their own States of nationality. Unlike the experience under the ICCPR, interState complaints in the European system have been quite common, with a long-running series of cases (from the 1950s to 1970s) pitting Ireland and the United Kingdom in matters regarding human rights questions arising from Ulster. As a consequence, the case law of the ECHR is vast, amounting to nearly two thousand decisions to date. The court has explored virtually every aspect of criminal procedure in every European nation and has issued opinions on contentious issues of linguistic and ethnic rights, as well as privacy and free speech.18 Most importantly of all, the decisions of these human rights institutions are now regarded as “self-executing” by European nations. (The United Kingdom was the last country to make this recognition.) That means that the decisions have automatic effect. European nations have complained bitterly about some decisions emanating from the court’s headquarters in Strasbourg (including recent rulings ordering that homosexuals be allowed to freely serve in military services), but they have been obeyed. This is an enviable record, and one that has not been approached by any other regional human rights regime. Despite some structural similarities and a significant body of advisory opinions and case law, the Inter-American Commission and Court of Human Rights have not achieved such respect or prominence. Outside of the human rights context, we have seen the emergence in the last decade of what are known as “investor-State” dispute settlement mechanisms. These are forums for the resolution of disputes arising from nationals of one country making investments in another country. In some situations, property can be expropriated by the host-State, but more frequently the question is whether host governments are free to regulate aspects of the investment in ways that might affect its long-term value (what are known as “regulatory takings” or “creeping expropriations”). The Iran-U.S. Claims

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Tribunal is one of these forums, and has been rendering decisions since the early 1980s.19 Created by the World Bank in 1965, the International Centre for the Settlement of Investment Disputes (ICSID) in Washington remains a favored choice by both foreign investors and host nations. Its jurisdiction is often invoked in forum selection clauses found in overseas investment or infrastructure contracts. Its growing use indicates a desire by investment host nations to provide regular and predictable dispute settlement. Although some ICSID panel decisions have been controversial, 20 it remains a respected forum. Perhaps even more startling has been the operation of investor dispute panels under Chapter 11 of the NAFTA. These bodies have adjudicated challenges to a variety of regulatory restrictions on foreign investment in Canada, the United States, and Mexico, including trade and environmental restrictions. In at least two cases, NAFTA Chapter 11 panels even considered—although, ultimately, rejecting on technical grounds— challenges to decisions made by state courts in the United States, which arguably had the effect of diminishing the value of foreign investments in those jurisdictions.21 Despite protests to the contrary, these sorts of international institutional mechanisms may well be the beginning of supra-national review procedures; the advent of a Supreme Court of North America (in the case of NAFTA Chapter 11) or a global system of investment and trade governance that surpasses even that offered by the WTO.22 The ultimate form of recourse from national to international legal institutions would be a direct process of reference and referral by a national court to an international or supranational tribunal. The EU has experimented with such a system of referrals of legal issues from member-nation courts to the European Court of Justice (ECJ) for nearly a half-century, with great success in promoting the harmonization of European law.23 It has been proposed that national courts might want to refer certain kinds of international law questions to the International Court of Justice (ICJ) in The Hague, but (so far) this has not been acted upon.24 Putting aside the legitimacy of these sorts of transnational judicial arrangements (which will be discussed in the next chapter), there is clearly a trend in favor of the growing interpenetration of domestic and international legal systems. Whether it is direct recourse to international dispute settlement by non-State actors, review of national court decisions by international bodies, or a process of reference by domestic tribunals of international law issues to international courts, these mechanisms will likely grow in popularity and utility.

A Global Regulatory Regime? Much of the current debate about legal globalization transcends considerations or private ordering of commercial relationships (the “new” lex mercatoria), the extraterritorial applications of domestic law, and recourse from national to international legal institutions. Much attention has been

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focused on questions of regulatory design for the new global order. Insofar as many transnational activities need to be regulated in a holistic fashion, how is this to be accomplished? Whether one adopts the idiom of the disciplined market-State or the more liberal cosmopolitan vision of cross-border coordination (see the previous chapter), the question remains of how to structure and initiate many needed global regulatory reforms. One issue that needs to be readily confronted is that exclusive reliance on national approaches and modalities to the regulation of transnational activities is almost always doomed to failure. There are two reasons for this. The first, as has been amply documented throughout this volume, is that crossborder relationships, transactions and activities tend to be underregulated by national authorities, producing what are known as regulatory gaps in the application and enforcement of national laws.25 The second reason implicates the sin of commission, not mere omission. That is because States will often compete with each other in order to offer private actors the most lax regulatory environment possible, in exchange for well-defined benefits (whether FDI, tax, or other revenue streams, or [in extreme cases] corrupt payoffs).26 This “race to the bottom” phenomenon has been well documented in international regulatory systems (see chapters 7, 9, and 10), and often accounts for their failures. Other factors can tend to complicate global regulatory functions. One of these is the interplay between law and policy, on the one hand, and science and technology, on the other. As was considered in chapter 12, it is often very difficult for policy-planners and regime-designers to react to technological change, especially in the face of what might (in some circumstances) be perceived as insufficient empiric data to base a rational and effective response. Global regulation of issues as various as climate change, pandemic influenza, and emerging biotechnical innovations, are all examples of this problem. Lastly, and most importantly, the new global regulatory regime is challenged by some fundamental—and some would say insuperable— contradictions. The first is selecting the relevant “style” of regulatory control for a particular activity: whether “heavy” or “light” in the relative degree of control over the activity; “thick” or “thin” in terms of the amount of detail in the regulatory regime; and “top-down” or “bottom-up” in regards to the extent to which official agencies are actually in charge of regulation or this is delegated to private institutions or actors. Obviously, a “one-size-fits-all” approach to the design of global regulatory systems is a nonstarter. Some transnational activities will call for higher and deeper and more intrusive amounts of regulation than others. The key difficulty is identifying those aspects of the activity to be regulated that give reliable indications as to the proper “style” of regulation to be adopted. So far, global regulatory mechanisms have largely been designed by serendipity, or, worse, by a lowest-common-denominator approach that emphasizes the political will (or lack thereof) by countries in facing a particularly transnational regulatory problem.

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There is also at work here an important insight about the global political economy of regulation and dispute-settlement, and this acts as a countervailing force to governmental inertia. Sometimes national governments, because of domestic political pressures, realize that international regulation of a transnational activity or the settlement of a cross-border dispute by a supranational authority (an international institution, tribunal, or private body) may offer superior outcomes. Elite associations in national jurisdictions (whether bureaucrats or interest groups) may favor the “elevation” of an issue or matter to an international mechanism, precisely to avoid or subvert domestic legislative or judicial bodies that might have been “captured” by more parochial interests. In short, sophisticated actors will “forum-shop” for whatever regulatory or adjudicative venue—domestic or transnational—they think will render the decision they desire. The problem of developing comprehensive—and coherent— regulatory regimes for various transnational activities seems manifest. When viewed in the context of other challenges posed by the porosity of the contemporary community of nations, and the pressures placed on legal regimes to respond to these issues, it is no wonder that many contemporary aspects of globalization have been so vigorously critiqued.

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Legitimacy

One of the major challenges for the continued advancement of globalizing

trends, and the progressive development of international law, is that increasingly questions are being raised about the transparency, effectiveness, and accountability of transnational legal institutions, processes, and actors. In short, the legitimacy of global law systems is being critiqued to a degree greater than they have in the past. Even though questions of legitimacy, transparency, accountability, and effectiveness might be analytically distinct (I suppose that an international legal institution may be highly accountable to its constituents, but still not really be legitimate as an international law– maker),1 it is worth considering these issues together as aspects of the same problem of transnational governance. One reason for increased scrutiny of international governmental and regulatory mechanisms has been the happy by-product of what has been called the “Democracy Revolution.”2 Over the past two decades, an increasing number of polities have transitioned from authoritarian (or even totalitarian) regimes to those based on democratic institutions, no matter how flawed or dysfunctional. This has been particularly the case in Eastern Europe and Central Asia (with the end of the Soviet Union and the cold war), as well as Latin America and Africa. There are, obviously enough, exceptions to this trajectory—as with mainland China, North Korea, Cuba, and isolated regimes in the rest of the world—but the trend in international law has been to accept and recognize an emerging norm of an entitlement of a polity or population to democratic governance.3 Not surprisingly, when individuals and civil society in both emerging and established democracies realize that many of the decisions that affect their everyday lives are made by transnational governance mechanisms (whether formal international institutions or more informal networks), it is natural that they would seek to have such processes governed by the same rules of predictability, rationality, ethical responsibility, and good governance that should characterize properly functioning democracies.4 Greater public involvement in national, transnational, and international governance has been made possible also by enhanced media coverage and commentary. Global civil society and nongovernmental organizations (NGOs) have been extremely active in monitoring the activities of transnational

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governance mechanisms, whether by attending international meetings as observers or directly participating in advocacy and lobbying of these institutions or by filing amicus briefs in formal legal proceedings. And, in extreme situations, where the actions and conduct of transnational government do not match up with the expectations of civil society, there can be mass public protests, as occurred in Seattle in 1999 or in Genoa in 2001. So, whether one has in mind “direct” democracy models based on the participation of the governed, or more delegatory paradigms (based on principal-agent theories and the practices of representative republics), global civil society’s oversight and monitoring of transnational governance mechanisms will likely intensify in the years to come.5 Increased demands and expectations as to the legitimacy, transparency, and accountability of transnational governance mechanisms can thus be seen as an outgrowth of the diversification of international legal actors in the processes of globalization. But even if nation-States had remained the sole subject of international law—the only real “actor” in international affairs— democratizing and other influences over the internal, domestic dynamics of national polities would have, inevitably over time, driven a reexamination of international institutions and law-making processes. This phenomenon has just been accelerated by the advent of global civil society.6 The remainder of this chapter will examine the ramifications of the search for legitimacy in transnational governance mechanisms. While much of the controversy has surrounded the traditional modes of international relations— State-to-State negotiations, treaty-projects, and harmonization through international organizations—attention has turned in recent years to the operation of supranational entities (such as the World Trade Organization [WTO]) and transnational judicial institutions. There has also been a backlash of sorts against the instigators of this new examination of legitimacy in global governance. Informal transnational networks and NGOs have come under increased scrutiny for their own supposed lack of accountability and democratic legitimacy. Principles of subsidiarity and the problem of transferring power from democratically elected domestic officials to unelected, unaccountable, international bureaucrats, also needs to be examined. There seems no doubt that debates as to the legitimacy of international law in our new global order will continue in intensity over the coming decades.

The Failure of Traditional Diplomacy and Institutions As has already been discussed in much of this volume, contemporary international law is only now confronting a variety of structural defects affecting the processes by which world law is developed and fashioned. These problems impact virtually all of the traditional means by which nation-States comport themselves in the pursuit of national objectives and the mediation of those goals and values with other countries. This includes diplomacy through bilateral and multilateral negotiations and treaty-creation, as well as

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the deliberations and actions of States through public international organizations. One phenomenon that has been consistently observed in international negotiations, whether or not leading to binding treaty instruments, is the penchant for countries to engage in lowest-common-denominator diplomacy. That means, in practice, that the results of a negotiation are gauged to the interests of the most reluctant country participating. Many negotiations (whether conducted within or outside international institutions) typically proceed on the basis of “consensus,” which means the absence of formal objection by any nation. Consensus-based international negotiations almost inevitably lead to stalemate, because it may well be within the interests of particular groups of participating nations to have a negotiation result in absolutely no progress. If the elusive search for consensus is not difficult enough in international negotiations and treaty formation, there are also other pathologies to contend with. In treaty drafting, the goal of keeping as many nations as possible supporting a convention text (as opposed to simply getting the support of those nations most likely to promptly ratify and faithfully implement the treaty), invariably leads to deliberate obfuscation of provisions in treaty texts. Known by the diplomatic argot of “constructive ambiguity,” this means that treaties are often negotiated and drafted with the view that the parties simply “agree to disagree” as to the meaning of key provisions. Instead of the parties accepting the idea that agreement is impossible, and waiting for a day when true consensus might be reached, countries insist on rushing to judgment. This inevitably causes disputes between the treaty parties regarding the practical interpretation and enforcement of the instrument. As was noted in the context of regulatory disciplines in international law (see chapter 9), and especially the negotiation of environmental treaties (including the Kyoto Protocol on the reduction of emissions of greenhouse gases potentially causing climate change), the negotiation approach of constructive ambiguity does nothing more than result in unenforceable, and (at some levels) meaningless, treaty regimes. A related negotiation pathology is simply for international institutions (particularly those with regulatory competence) to defer action on significant issues. Known evocatively as “kicking the can down the road,” the idea is—at least for those countries inalterably opposed to regulatory innovation or a particular enforcement action—to delay the inevitable for as long as possible. Whether it is the adoption of global shipping or civil aviation standards (opposed by some flag States), or enhanced environmental protections (rejected by those nations hoping for a “double-standard” in global regulation), or better food and drug safety rules (resisted by countries lacking effective domestic enforcement regimes, such as China) these global regulatory and enforcement projects are often doomed to failure. The last sort of diplomatic pathology of the traditional instruments of international law-making is purely institutional. The proliferation of new organizations, mechanisms, and negotiating forums has meant that there is a literal

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competition for global regulatory authority and space. International institutions have become increasingly “turf-conscious,” and will sometimes resist intrusion by other entities into their perceived realm of exclusive regulatory competence, even if the competing organization is better situated or configured (for whatever reason) to confront and handle the regulatory or enforcement challenge. This illustrates a prevailing tension in international law-making between the values of rationality and cooperation. As was discussed in the context of regulating the global commons (see chapter 8), both countries and aggregations of nations (acting through international institutions and traditional diplomacy) can think they are achieving “cooperation”—if only at lowest-common-denominator levels—even if the results of these processes are not very “rational,” or only achieve suboptimal results.7

Democratic Deficits of Supranational Institutions As has been considered in previous chapters, we have witnessed the emergence of a new species of public international organization, ones that break the traditional mould of being simply forums for inter-State negotiation or mere harmonization of national regulatory strategies via the glacial process of treaty negotiation and implementation. These new supranational regulatory agencies cut across a variety of sectors of transnational governance. While they tend to be concentrated in the international economic field (where they have direct impacts on global economic actors, as discussed in chapter 13), that is not invariably the case. Supranational governance has emerged in the enforcement of fundamental charters of human rights and for the protection of displaced populations, as well as in global environmental regulation. The leading example of a supranational governance institution is the WTO, based in Geneva. Perhaps not surprisingly, the WTO has been the main target of those who have challenged many aspects of global governance for lack of accountability, transparency, and legitimacy. As was considered previously in the context of global regulatory design (see chapters 9 and 14), the WTO plays a positively crucial role in negotiating, and then rigorously enforcing, global trade disciplines. The very nature of GATT (General Agreement on Tariffs and Trade)/WTO trade negotiations—through a series of rounds, each of which builds on the earlier negotiations, in order to achieve the complete removal of impediments or barriers to global trade— makes every successive phase of negotiation increasingly controversial. That is because traditional nation-State sovereignty is being challenged by a transfer of power and authority from national levels to international institutions. Today, the WTO is grappling with the most intractable issues of protectionism: liberalizing the trade in services, removing agricultural subsidies and supports (which, for many developed nations (including the United States, European Union [EU], and Japan), remains a lighting rod of domestic dissent), eliminating the so-called “cultural exception” for trade in books, films, and TV content, and protecting intellectual property rights against

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challenges of compulsory licensing by developing nations seeking cheap access to life-saving drugs. Each of these issues implicates some of the most basic matters of sovereignty and the delegation of national authority over the public welfare to transnational governance institutions. It is thus no surprise that as the WTO is responsible for greater generation of trade and economic norms, impacting wider aspects of daily life and traditional nation-State prerogatives, that civil society will be attentive to the structure of decision making within that institution.8 Until very recently, WTO had a relatively poor record of transparency for its decision processes and the accountability of its policies. Decision-makers at WTO have traditionally been representatives of national trade ministries, meeting in Geneva or at designated negotiation sites. These meetings were closed to the public, and admittance was only very rarely granted to observers sent by NGOs or other cohorts of international civil society. The trade deals struck in these contexts often reflected the views of trade and business elites who stood to benefit from further increments of trade liberalization, and not those groups who made arguments for the continued need for protectionism. Many national legislatures grant their trade ministries authority to negotiate trade deals, which can be either approved or rejected, but not amended (this is called “fast-track” authority in U.S. practice). This means that legislators— who are directly accountable to their domestic constituents—often have little role in negotiating trade accords at WTO. Even more alarmingly, when trade disputes reached the dispute settlement process in the WTO—and went before specially created trial and appellate panels—the hearings were entirely closed to the public and no outside participation was permitted. Many NGOs and watchdog organizations were largely justified in their belief that WTO was totally unresponsive to many global constituencies.9 The WTO has sought to respond to these complaints by rendering at least some of their negotiation and dispute-settlement processes more transparent. Many negotiating sessions are open to the public, and NGOs and global civil society are now welcome to file amicus briefs before trade dispute panels, in order to articulate the views of unrepresented constituencies and interests. Despite these cosmetic reforms, there is still a widely held view that the substance of WTO decisions tends to favor an uncritical and unqualified endorsement of liberalized trade policies, often at the expense of the global poor, rural interests, indigenous peoples and industries, and the development prospects of the South. Exactly the same charges have been leveled against the International Bank for Reconstruction and Development (IBRD, or World Bank) and the International Monetary Fund (IMF). While the World Bank is not in the business of trade liberalization and regulation, it does provide lending for economic and social development projects in host States. The World Bank’s decades-long emphasis on huge infrastructure projects (roads, dams, and power generation) has tended to distort the economies of host nations and deflect the benefits of development to local elites. Likewise, the IMF’s rules for currency stabilization and equalization often result in substantial hardships

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for local populations, forced to endure currency devaluations, the end of government subsidies and welfare programs, and the privatization of Stateowned enterprises and economic sectors. Once again, World Bank and IMF policies tend, in aggregate, to benefit global and local business elites, all seeking a consummation of a “Washington Consensus” of economic liberalization and the transfer of domestic, national regulatory power to nameless, faceless, unelected and unaccountable international bureaucrats, trade assemblies, and dispute panels.10 The reality of the extent and depth of the legitimacy crisis of supranational institutions may not, however, lead to such alarmist conclusions. It is natural for transnational governance entities, having begun their institutional lives as the mere instruments of nation-State politics, to need time to adjust to the new conditions of a globalized world. These would include a diverse set of assertive non-State actors who seek to influence the wielding of international law-making (see chapter 13), as well as the internal demands of democratic legitimacy in which national polities and constituencies compete for influence on the international stage. Some supranational governance institutions have successfully made the transition to exercising greater authority, while also doing so in more transparent and accountable ways. Among these are the European Court of Human Rights (ECHR, discussed previously in the last chapter) and the United Nations High Commissioner for Refugees (UNHCR). The ECHR, which adjudicates the provisions of the European Convention on Human Rights, has essentially become Europe’s constitutional court of last resort. Because individual petitioners can seek relief directly from the ECHR, after their domestic remedies have been exhausted, and because of the expansive provisions of the European Convention, the court wields substantial power and influence over the content and extent of civil and political rights on the European continent. Levels of compliance by European governments with ECHR decisions are quite high, even though the court has no direct means to enforce its judgments. Legitimacy is conferred on the court via fairly transparent means to select its judicial officers, and the ultimate power that is granted to domestic officials to implement its decisions (no matter how unpopular they may be).11 In contrast to the strictly judicial role of the ECHR, the UNHCR engages in activities that can be characterized as both aid-provision (operating refugee camps) and quasi-administrative (making determinations regarding an individual’s entitlement to refugee status). UNHCR operates a network of refugees relief operations across the globe, making it a supranational entity that directly impacts the lives of millions of vulnerable people. Although subject to some criticism, UNHCR has made the necessary legitimacy transitions over the next decade, focusing on the transparency and accountability of its operations (ensuring dignified treatment for refugees in camps) and decisions (maintaining consistency and accuracy of refugee status determinations).12 The legitimacy of many supranational governance regimes is likely to be questioned over the coming years. As they accumulate more power and

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authority—especially at the expense of traditional nation-State legislative, executive, judicial and administrative competence—it is natural that global civil society and domestic political constituents will insist that these entities and mechanisms observe the highest standards for transparency of decision making and accountability of decisions.

NGOs as Illegitimate Agents of Global Change? Criticisms of the legitimacy of international legal actors has not been confined to the traditional instruments of diplomacy or to newfangled supranational entities. Attention has recently turned to those aspects of global civil society—NGOs and transnational expert networks—that are often the most vocal in challenging the dysfunctions of treaty diplomacy and the misdeeds of supranational governance mechanisms. Ironically enough, as NGOs and transnational networks play an increasing role in international law formation, doubts have been expressed about their own ability to function in an open, transparent, accountable, and legitimate fashion. By definition, NGOs as non-State actors operate beyond the traditional realm of direct public control and democratic accountability, at least as understood through such processes as elections and democratic representation. Some NGOs are structured as membership organizations, within which constituents pay regular dues and are sometimes, thereby, allowed to choose the organization’s officers and policy-makers, as well as ratify the institution’s aims, goals, and objectives. Examples of such groups would include Amnesty International (based in the United Kingdom) and the Sierra Club (located in the United States). But even with such membership-based organizations, there can be a democracy deficit. Members may feel that they have no authentic voice in the decision making of such entities, or not exercise such rights, or (in extreme situations) the organization may proceed on a course of action despite the interests of a vocal minority (or even majority) of members.13 But many NGOs are not even organized around such a member or constituent model, and (by their very character) few transnational expert networks are, either. That may well mean that most participants in global civil society have no real claim to democratic legitimacy. Well-established NGOs may, in fact, be the ones less likely to adhere to principles of good governance and accountability. In extreme situations, NGOs may exhibit all of the atavistic tendencies of transnational corporations or supranational entities that have lost their sense of mission. NGOs have been known to censor their members, silence dissenting factions, to attack other NGOs that may be competing for the same sources of funding (especially from U.S.- or European-based philanthropic foundations), and to generally espouse elitist views based on the privileged and expert predilections of their members and leaders.14 The legitimacy prospects of many transnational NGOs may not be as bleak as this critique may suggest, however. First of all, it may be simply

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unrealistic to assume that NGOs or transnational networks be structured on the lines of modern democratic polities, with regular elections of officers, plebiscites as to the direction of policy, and complete openness of proceedings and transactions. Even without such democratic decision-making structures and processes, many NGOs will be transparent as to the spending of funds (this will be ensured with annual audits and oversight by funders), the direction of organizational policies (by a regular presence on the internet and web), and will be accountable to the stakeholders of the organization.15 Some have distinguished between the internal and external accountability of NGOs. Internal accountability captures many of the transparency issues discussed here, and the proper definition of the stakeholders of the organization. A far more difficult question for many NGOs is its responsibility to outside constituents and the global community at large. As has been considered previously in this volume, some NGOs (such as the Antarctic and Southern Ocean Coalition [ASOC], discussed in chapter 8), might not have clearly defined stakeholders (there is no indigenous human population in the Antarctic, and penguins and seals do not usually vote). Nevertheless, they operate efficiently and effectively in regards their internal accountability (to donors, member organizations and individual supporters). Other NGOs have had periodic “crises of conscience,” in which they painstakingly review their organizational mission, goals, objective, and values.16 In short, international NGOs and expert networks feature many of the same problems and prospects as domestic interest, lobbying, and advocacy groups. An aspect of their signal strength, durability and influence is that they are inherently specialized and mission-driven. They are global special interests, and should not be held accountable to the wider aggregates of values subsumed by contemporary nation-States. Just as transnational corporations (TNCs) are really only accountable to their shareholders, NGOs and transnational networks owe their legitimacy to a narrowly circumscribed set of interests. To overcome the democracy deficit of these non-State actors we really do depend on the continued, and robust, influence of traditional nation-States, which (assuming they are authentic democracies) are better able to capture the interests of larger constituencies and thus move international law–making in the direction of a global common weal.

Subsidiarity, Delegation, and Integrity of Global Governance What does the future hold in store for the legitimacy of myriad global governance mechanisms? As has been considered in previous chapters, the diversity of international legal actors and the interpenetration of transnational institutions, vastly complicates this inquiry. There are a number of basic organizing principles for good global governance that can guide decisionmakers in adopting the proper strategies for legislating new global norms or regulating cross-border activities or adjudicating international disputes.17

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The first of these principles is subsidiarity. This was a concept originally developed in the context of the constitutional law of the EU, a European take on the principle of federalism from American constitutionalism. As expressed in the European Community Treaty, and its Protocol (Number 30), subsidiarity is the notion that actions should be taken at the European-level of governance only insofar as “the scale or effects of the proposed action” are such that the “objectives of the proposed action cannot be sufficiently achieved” by the member States of the EU themselves.18 Taken to its logical conclusion, the idea of subsidiarity is that all sorts of political decision-making (not just legislation, but also administrative regulation and judicial action) should be made by the entity and polity that is smallest in scale, and most immediately accountable to its constituents.19 Subsidiarity has broad implications for global governance. The first, and most significant, is that subsidiarity—if faithfully and rigorously applied— would tend to counteract the impulse to transfer much global governance into the hands of international institutions, supranational entities, and other transnational mechanisms. Just as traditional attitudes regarding State power and prerogatives prevent wholesale transfers of power to global institutions, as do lingering concerns about the democratic legitimacy of these bodies, the principle of subsidiarity offers a neutral and objective basis to weigh decisions about the very propriety and efficacy of global governance. In addition to this phenomenon, subsidiarity subtly redirects discussions about State sovereignty into more useful idioms and lines of debate. Subsidiarity asks the questions of what level and kind of governance is best suited for a particular legislative, regulatory, or judicial action with transnational effect.20 A second guiding principle is delegation. This was mentioned in the previous chapter in reference to the permeability of various transnational governance mechanisms. Delegation is a correlate of subsidiarity, but it can ratchet in both directions (whereas subsidiarity tends to drive decision-making power to smaller, more local, polities and constituencies). Delegation can occur when a national (or subnational) jurisdiction conveys power to an international or supranational body. This is often accomplished by a formal treaty regime, but not invariably, and has occurred with more informal consultation and regulation approaches of coordination among national and international bureaucrats. Delegation can also work in the other direction: when a global entity hands back regulatory or oversight power to nationStates, or, increasingly, to private regulatory bodies.21 As was discussed in the last chapter, just because nation-States agree to delegate their authority and competence to international institutions, via treaty regimes, does not inherently mean that they are sacrificing their national sovereignty. Such delegations of powers often implicate domestic constitutional concerns (especially in countries, like the United States, which have been traditionally resistant to accede to international authority). But the real question is the extent to which decision making practically shifts from domestic to international levels of authority (and back again),

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and whether there is sufficient transparency and accountability of decision-making—at whatever level—so as to confer legitimacy on the decisions that are rendered.22 Cross-cutting delegations of transnational governance have resulted in an intensified interdependence of local, national, regional and global institutions and bodies. This has led to concerns about a third guiding principle for good global governance: the integrity of international institutions.23 As noted above, many international institutions—especially the UN and some of its specialized agencies—appear to operate in a fashion that implicates profound legitimacy concerns. In extreme instances, international organization leaders and personnel have been accused of perpetrating (or at least abetting) war crimes and other systematic human rights abuses. (This charge was leveled against the UN leadership for its inaction in the face of the Yugoslav and Rwanda genocides, and against particular contingents of peacekeepers.) In the absence of effective rules of responsibility for international organizations and their staff, presumably only member States will be in a position to make these institutions accountable for their actions.24 The legitimacy of global governance will continue to be one of the greatest challenges for globalization and the continued development of international law. No easy answers are likely to emerge from these debates, because they implicate the most telling issues of national sovereignty, democratic participation, interest-group politics, and institutional design. One might hope that most transnational governance institutions will move toward more transparent operating procedures and more accountable decisions. Ultimately the question is one where the true allegiances lie for global decision-makers—with nation-States, with their own parochial and elite interests, or with (an as yet inchoate) vision of transnational civil society and a global common good.

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Exceptionalism

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t has been assumed that globalization is a shared enterprise and project of all the world’s inhabitants, and that all stand to gain from political, economic, social, and cultural advancement that globalizing trends portend. Like the story of international law, globalization is often presented as a progress narrative—the forces of globalization are often assumed to be inexorable, inevitable, and irreversible. The actuality, as presented in this volume, is quite different. Nowhere is this difference between rhetoric and reality more apparent than in the initial premise of globalization: that its benefits and detriments are equally shared and borne by the world’s population.1 This chapter examines the different ways that individuals, communities, and polities can, and have, “opted-out” of globalization. In some instances, this dynamic of exceptionalism, or resistance, to globalizing trends is voluntary. Sometimes this is reflected in national policies that have been developed to counter certain aspects or features of globalization (such as North Korea’s hermit isolationism, or the United States’ role as the last remaining superpower). In other situations, it is groups of people that have decided to do without certain benefits of economic globalization (such as access to cheaper goods and services), in order to gain social or cultural benefits by preserving an established (sometimes traditional) way of life. There is also the concern that much of the world’s population would like to secure the benefits of globalization—improvements in quality of life, better social services, increased access to markets and trade, enhanced educational and cultural opportunities—but cannot. This may be for a variety of reasons. Some may be associated with the structural dysfunctions of a globalized economy. Others may be linked with the needs and problems of vulnerable populations. Whatever the cause, there is a growing divide in the world between rich and poor, and a greater schism between the promises of globalization and what is actually delivered to much of the world’s population.

Income Inequality as a Systemic Feature of Globalization Many of the features of contemporary economic globalization—trade liberalization, the opening of markets, and removing impediments for foreign

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direct investment (FDI)—are intended to promote wealth maximization across the globe. In large measure, this global fulfillment of the “Washington Consensus” has succeeded. The aggregate of gross domestic product (GDP) of all countries in the world—the standard measure of national wealth—has certainly increased, as has the volume in cross-border trade in goods and services. While a rising tide lifts all boats, as the expression goes, it may lift some vessels higher than others. When the developed and developing worlds are compared, while aggregate global wealth has increased in the last generation, the distribution of that wealth has been most inequitable. Before the onset of globalizing forces in the mid-1970s, the income ratio between the world’s richest and poorest countries was 44 to 1. By the year 2000, it was 74 to 1. As measured in absolute terms, the number of people subsisting below the international poverty level ($140 of earnings per year), increased from 1.2 billion in 1987, to over 1.5 billion today, nearly 25 percent of the world’s total population. Of course, global population increased by more than 15 percent during that period, so that statistic may not be an entirely reliable gauge.2 Other measures of global inequality are more qualitative, and turn on access to opportunity and other valuable social goods. One major theme of this volume has been the role of technology as a globalizing force (see chapter 12). Information technology in general, and access to the Internet in particular, can be a driving force for many economies seeking to leap-frog from an agricultural-subsistence economy, over the pitfalls of an industrial revolution, to a newfound land of the service economy. There is a well-known “digital divide,” between the developed and developing world in terms of Internet usage. In 2000, 54.3 percent of U.S. households had Internet access (in some European nations, such as Estonia, it was even higher). For countries that are members of the Organization for Economic Co-operation and Development (OECD), representing all of the developed world, the average figure was 28.2 percent of all households. When one moved to the developing world, the digital divide was evident with figures of 3.2 percent of households in Latin America and the Caribbean, 2.3 percent in East Asia and the Pacific Basin, 0.6 percent for Arab states, and a paltry 0.4 percent for subSaharan Africa.3 Similar trends have been observed with relative access to quality health care (including life-saving drugs), literacy rates, and other standard indicia of quality of life. There is an untold story of economic globalization, and that implicates the phenomenon of growing income inequality within polities, and also across the North-South divide between developed and developing nations. Although it is true that the wealth of nations has increased in the past, global generation, it is also undoubted that sharp disparities in the comparative wealth (and access to economic opportunity) of those in lower-income brackets in most countries, as compared to those in high-brackets. Ironically, this is a phenomenon that appears to be common to all nations; income inequality is increasing to the highest levels in a century for those in the developed North (including the United States and some European countries), as well as

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peaking in the developing South. To take just one snapshot statistic, in the year 2000 the wealth of the top 1 percent of households in the United States exceeded that of the combined wealth of the bottom 60 percent of households, reflecting a significant increase in the past two decades.4 Income inequality can be measured in absolute and relative terms. Absolute values for income inequality often implicate basic measures of poverty in any given society. When incomes in a particular demographic widen, it does not necessarily mean that more of that population is impoverished. Nevertheless, there are statistics that suggest that widening income inequality in many countries can result in losses of economic opportunity for those in lower-income brackets. But when measured in relative terms, income inequality becomes a more stark bellwether of the adverse impacts of globalization. By concentrating greater wealth and economic opportunity in the hands of increasingly smaller cohorts in a society, it has substantial impacts on the distribution of political power and other social goods in that country.5 A number of aspects of economic globalization have been directly linked to increasing income inequality in most countries. Trade liberalization (in both goods and services) and the frictionless movement of international capital drives a search for ever-cheaper raw goods, including human labor. The aggregate of paid wages in some industrial and agricultural sectors has actually decreased over the past decade as jobs migrate from the developed North to the developing South, where employers can avoid the wage inflation effects of labor unionization and worker organization, as well as costly forms of labor regulation and political pressure. There has emerged a “race to the bottom” in countries seeking FDI by offering the most lax form of worker protections, including health and safety regulations (see chapter 9). In this globalist dynamic, wages are driven lower and lower in the search for cheaper inputs into the production output of factories, farms, and mines, or the service output of call-centers, fulfillment and redistribution warehouses, transportation nodes, and even professional services (such as law firms and telemedicine providers).6 The essential question is whether income disparity (either as measured within countries or on the North-South divide) is an inevitable consequence of globalizing forces. Some believe that it is, and some historic evidence bears this out. The previous great periods of globalization (whether from classical antiquity, the age of exploration and colonization, or the late nineteenth and early twentieth centuries) all present the trend of greater wealth accumulation in the hands of an elite group of countries and smaller cohorts of individuals in all countries. Perhaps greater economic opportunities—as presented by trade liberalization and greater movements of people, goods, and capital—naturally tend to benefit those sectors of society that are in a better position to exploit them. This need not necessarily be the case, and the current phase of globalization does differ from earlier epochs in the extent to which a global civil society has developed to monitor and watchdog these developments. Also, the democracy revolution (discussed in the previous chapter) has impelled greater moves toward openness, transparency, accountability, and good

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governance, not only in domestic politics but in transnational institutions and mechanisms of governance. Some aspects of international law and regulation might ameliorate the growing income-gap, and prevent it from becoming a yawning chasm of difference as well as a reservoir of resentment against globalization.

Universal Protectionism of Peoples Weakened by Globalization In Manfred Steger’s memorable schematic, he distinguishes between the two main antiglobalist camps of ideologies. One he labels “particularist protectionism,” which involves individuals, groups, and nations that have sought to opt-out of certain globalizing trends out of fear of the loss of national selfdetermination, established social and cultural norms, or historic nostalgia. “Particularist protectionists are more concerned with the well-being of their own community than with the construction of a more equitable international order based on global solidarity.”7 The claims of this ideology will be considered later in this chapter. The other camp he labels “universalist protectionists,” guided by ideals of equality and social justice across borders. Universalist protectionism tends to focus on the inequities of a globalization imposed from above by social and political elites, and, instead, advocates for the needs and aspirations of the world’s poor and those who lack access to global opportunities.8 This volume has sought to carefully examine the impact of globalizing legal trends on the planet’s most vulnerable populations. Whether it is the plight of indigenous peoples (see chapters 8 and 11), minority communities (chapter 11), global laborers (chapter 9), or those affected by capital flight (chapter 7) or endemic conflict (chapter 10), these groups have one thing in common: they have essentially been denied most (if not all) of the benefits of contemporary globalization. The question becomes one of whether these groups, individually or collectively, should be accorded special privileges and protections within the global legal regime, in order to ensure their continued survival in the face of constantly accelerating pressures and demands. One assumption of global governance and current international law is a “one-size-fits-all” mentality as to the universal application of legal regimes, rules, and institutions. If globalization is presumed (falsely, it seems) to benefit all people, then there is apparently no need to develop “doublestandards” of conduct, or to offer special treatment to disadvantaged groups. In the past generation, international legal theorists have come to realize that difference—and differential treatment—may be an essential ingredient in international legal regimes gaining legitimacy and attaining broad consensus support, if not universal assent. Feminist and critical race thinkers have powerfully argued for adjustments to traditional approaches to the structuring of international law doctrines and systems, especially in the conception of international human rights and global economic justice.9

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More realist and institutionalist writers on international legal regimes have also taken up this call for action.10 The problem, of course, with any compromise on the question of differential treatment in global regimes is that it seems to conflict both with the universalist and progressivist aspirations of international law. “Doublestandards” in trade and environmental regulation—whether for relaxation of trade disciplines to protect culture (see chapter 11) or divergent performance standards under the Kyoto Protocol (chapter 9)—have become lightning rods of criticism. What would distinguish an appropriate move to protectionism and the consequent insulation of individuals, communities, or entire countries from global standards of regulation? Why should particular groups be privileged with the ability to opt-out of globalizing legal trends, whether unilaterally or by the agreement of other participants in the international community? The generalist impulse of international law can thus be a real impediment to a sensible legal approach to the challenges and problems of globalization. For those groups and communities victimized by aspects of economic, social, and cultural globalization, there must be some set of international legal remedies and institutions that can address the concerns that would normally be answered through the rhetoric of universal protectionist ideology. The likely locus for such global governance mechanisms will continue to be such supranational institutions as the World Trade Organization (WTO), the European Union (EU), NAFTA (North American Free Trade Agreement), the World Bank, and regional human rights enforcement tribunals. Unless these institutions can make the transition to full accountability and transparency for these disenfranchised constituencies that have been left behind by globalization, then universal protectionist critiques of globalization will persist and strengthen.

Particular Protectionism and American Hegemony As noted earlier, particularist protectionism, as a characterization of antiglobalist ideologies, differs fundamentally from universalist protectionism. Particular protectionism seeks to insulate a specific polity or community from certain, specific effects of globalization. These effects are usually viewed as detrimental to the continuation of a distinctive national or community identity, and thus particular protectionism is often bound up in cultural challenges to a particular society. Particular protectionism often manifests itself as a political reaction to globalizing forces, even as it is often quite accepting of many aspects of economic globalization (including trade liberalization). Appeals to nationalism, sovereignty, and self-determination are often rife with this form of antiglobalist ideology. Quite often the most vicious political attacks are made against the real (or perceived) power of regional or supranational institutions to veto or supersede the “authentic” voice of constituents in particular countries.

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The travails of the WTO have already been considered in the previous chapter. The EU—often caricatured through an (admittedly) byzantine and not terribly responsive bureaucracy based in Brussels, Belgium—has been subjected to withering criticism by country-based nationalists, especially those angry at the EU’s agricultural, labor, and social policies.11 Even relatively weak international institutions and regimes get tarred with this particular protectionist brush. The NAFTA, along with an initiative to create a free-trade zone for the entire Western hemisphere, have become a lightning rod of debate in recent presidential and congressional elections in the United States. Internationalist Republicans and free-trade Democrats in U.S. politics, occupying a precarious middle ground of policy preferences, often find themselves squeezed by extremist elements in their own parties. This political dynamic has been replicated in many Northern polities, including Japan and South Korea (on the Pacific Rim) and in the United Kingdom and Norway (in Europe). Even more disturbingly, the antiglobalist forces reflected in the particular protectionist movement have turned their anger to the large and divisive presence of immigrants (particularly guest workers) in many countries. Readily evident in developed countries such as Japan, Germany, France, the United Kingdom, and the United States, extraordinary political resistance has been directed against immigrant communities. In some countries this has manifested itself as purely an economic debate about the rights of guest workers or undocumented aliens. But in other countries (particularly France and Britain) the arguments have turned to questions of the cultural assimilation (or lack thereof) of discrete and distinctive immigrant communities. And this debate has not been confined to the North. Guest worker populations constitute a major presence in many Middle Eastern countries (including those along the Persian Gulf), and the Pacific Rim. The natural movement of labor across borders, and the needs and demands of these immigrant communities, will likely be a defining issue of globalization in the years to come. That leaves one other major type of resistance to globalizing trends. As has been considered throughout this volume, globalization has both prospered and suffered in times of imperial hegemony (see chapter 1). It has been legitimately suggested that we are currently in one of these periods, with the United States as the sole remaining superpower (or as French commentators have terms it, the “hyper-power”). Whatever the truth of this assertion— especially in light of the development of powerful, regional market-State entities such as the EU and combines in Asia and the Pacific Rim—the United States has unquestionably played a leading role in many forms of economic globalization (especially the development of the aptly named “Washington Consensus” and trade liberalization disciplines), as well as the cultural homogenization of the planet. Even though the United States, as a polity, probably stands the most to gain of any nation from most globalizing trends, it has certainly not been immune from the backlash of antiglobalist ideology. As already noted in this chapter, both universalist and particularist arguments for protectionism have been

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offered in American political and social discourse. Perhaps it is no surprise that for a polity as large, diverse, and heterogenous as the United States that many different forms of antiglobalist rhetoric can subsist in the same political space. Ways of thinking about the values of liberty, egalitarianism, individualism, and laissez-faire market economics, have exercised a profound influence over the American psyche and have conditioned reactions to many globalizing trends. These attitudes have certainly influenced many U.S. policies in the realm of foreign policy and the structuring of global legal and regulatory regimes.12 American exceptionalism in the domain of international relations, and U.S. conduct in international institutions, is a well-documented phenomenon. Dating back to the days of the Monroe Doctrine, Woodrow Wilson’s Fourteen Points, and the foreign policies of the Roosevelt (both Teddy and Franklin), Kennedy, Carter, and Regan administrations, there has been a strong strain of both internationalism in U.S. foreign affairs, as well as isolationism and outright resistance to participation in international regimes. The latter impulse in U.S. foreign policy has certainly culminated in the administration of George W. Bush, for which a signature trend has been a strongly unilateralist approach to post-9/11 strategic issues, including nonproliferation policies surrounding weapons of mass destruction (WMD) and Middle East security questions, culminating in the invasion of Iraq in 2003. Concomitantly, the Bush administration has rejected, on principle, U.S. participation in many forms of international legal cooperation regimes and projects for the progressive advancement of international legal norms.13 The most notable examples of recent American exceptionalism to globalizing legal regimes have been U.S. objections to the development of international human rights and humanitarian law doctrines, processes, and institutions. To be fair, though, this is certainly no recent phenomenon. Because of domestic constitutional limitations, and an American commitment to faithfully execute and implement those treaty obligations that it does decide to enter into, the United States has tended to avoid ratification of many human rights instruments. Also, there has been a pattern of the United States sublimating its international obligations to those already established under domestic constitutional and statutory law. In other words, the United States will often adopt those human rights instruments that merely restate what is already required for government action under the U.S. Constitution, but certainly go no farther in providing additional rights to its citizens through these instruments.14 This has certainly been a contentious issue of late in regard to the United States’ enforcement of its obligations under the 1963 Vienna Convention on Consular Relations (VCCR).15 Article 36 of that instrument allows for individuals incarcerated in a State Party to have the right to notify their country’s consular officials and to receive the benefits of consular access in the preparation of a defense to the criminal charges against them. It has been the United States that has regarded VCCR Article 36 as a bulwark of protection for Americans traveling abroad (especially to countries offering uncertain or problematic due process for foreigners), and, yet, ironically, the United States

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has been spotty in its enforcement of the VCCR for foreigners charged with crimes in this country. Charges of U.S. violations of the VCCR have reached the International Court of Justice (ICJ) on no less than three occasions in the past decade,16 and in each instance the ICJ was compelled to characterize U.S. treatment of foreigners as violations of the Convention. The United States’ defense in these cases, although not expressly relying on exceptionalist reasoning, was nonetheless condemned as an expression of a double-standard: that the United States expected other countries to comply with the VCCR’s strictures, but was not itself prepared to do so.17 Another spectacular example of U.S. resistance to international legal regimes has been the Bush administration’s opposition to the creation and operation of an International Criminal Court (ICC). As noted in chapter 10, the Bush administration’s objections have been both as a matter of principle (concerns about creating an expansively vast jurisdiction for an independent criminal court, without accountability to the UN Security Council) and as a matter of instrumental policy (worries that current or past Administration officials, or U.S. service-members could be charged by the ICC). In any event, the United States—as both a matter of policy and by domestic statute—has established a number of barriers and roadblocks to any cooperation with that tribunal, going so far as to prohibit the expenditures of any funds for that purpose and sanctioning any nation that would have the temerity to extradite a U.S. national into the jurisdiction of the ICC.18 U.S. foreign policy exceptionalism and opposition to international legal regimes and institutions reflects a special aspect of anti-globalist ideology and action. It may well be unique, insofar as few other countries can sustain an implacable opposition to a broad-range of global legal initiatives over a long period of time. Nevertheless, and despite the unique positioning of the United States in a new global order, U.S. resistance to certain aspects of transnational legal reforms can give aid and comfort to other, more pernicious, forms of antiglobalist rhetoric, whether conveyed in the form of universalist protectionism or particularist protectionism. One of the real challenges to the continued trajectory of globalizing trends, and the progressive development of transnational legal order, is how to constructively address the concerns of constituencies that would seek to opt-out of globalization, to co-opt their most trenchant policy prescriptions, or (in extreme cases, such as with terror networks) to confront them with political and military force. Above all, we need to recognize that globalization does not benefit all planetary inhabitants equally, and, indeed, in some situations can actually harm well-defined groups and interests. The new globalized world order we are confronting has both winners and losers, and no just system of transnational legal regimes can operate without that recognition.

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Conclusion

T

he character of contemporary globalization demands that we reflect on the policy values and choices that undergird the international legal system. As Thomas Franck has observed,1 the legitimacy of the primary rules of the international legal system depends on the determinacy of the norms, the symbolic validation they confer, the coherence of rules in commanding compliance, and the ability of actors to adhere to those rules through effective process. Though that insight answers concerns about the character of international law rules that can be deemed legitimate for the international community, it does not necessarily address the values and paradoxes inherent in the selection of those rules. When international law was in its infancy as a legal system, few publicists tended to question that its primary value was the maintenance of the sovereignty—the internal legitimacy—of its primary actors and subjects, States. When doubts were raised on this point, they tended to be couched in the idiom of the naturalist/positivist debate about the nature and sources of international legal obligation. When Grotius, Pufendorf, and Vattel speculated on whether States were subject to a “higher” law than the Prince’s own whim and raison d’etat, the discourse rarely ventured beyond a fairly binary debate between sovereignty and justice.2 Immanuel Kant, writing in the late eighteenth century, was among the first to challenge the State-centered values of the law of nations by placing international peace as an affirmative value alongside State power.3 The revolutions in America and France in the 1770s and 1780s certainly reflected a time of new ideologies. As a consequence, new fissures and stresses appeared in the international political order. These challenged accepted values of the international system. They continued with the popular revolutions of 1848 and the accelerating pace of European colonialism in Africa and Asia. Likewise, the Bolshevik Revolution in 1917 profoundly upset international expectations by placing one of the traditional Great Powers on an ideological collision course with the rest. State sovereignty’s monopoly over international law’s value system was thus only seriously challenged at the beginning of the twentieth century. The Hague Peace Conferences of 1899 and 1907 (with their disarmament and conflict control agendas), as well as the creation of the League of Nations (League) in the aftermath of World War I (as the world’s first universal organization devoted to collective security), elevated peace as a central value of international law. The irony of the timing of this accomplishment cannot be

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lost. The hostile behavior of States in the Interwar periods, combined with the extraordinary human rights abuses before and during World War II, have caused later diplomats and commentators to regard it as a time of undoubted failure for international law. In a similar way, 1945 is regarded as a watershed for international law’s values. Captured in so many developments (some of which have already been narrated in this volume), the international community accepted that State sovereignty could not alone guide international affairs. While the UN Charter certainly embraced Great Power realpolitik in its structure (an important change from the fairly utopian vision of the League), it also explicitly dissolved State sovereignty in its twin goals of preserving peace and protecting human rights. Of these two competing values, the “human rights revolution” of the postwar era was probably the more significant. By elevating respect for the dignity and rights of individuals, enforceable even as against their own States of nationality, international law has come within the past sixty-odd years to recognize a variety of essential values, just as it has embraced a diversity of subjects for its rules. It would be a serious mistake to believe that the periodic cycles of challenge to “established” international law values are now no longer likely to occur. If anything, they seem to be accelerating in tempo. The process of decolonization, starting in the 1950s and 1960s, has certainly raised profound questions about the Eurocentric character of many international law doctrines. The end of the cold war and the (arguable) emergence of a single Super-power has likewise put in doubt international law values that depended on bipolar, hegemonic assumptions. Multipolarity in international relations has been translated into multivalent objectives for a rule of law. Religious fundamentalism and virulent nationalism, long suppressed during the cold war, have reemerged as a major force in shaping international law concerns. Lastly, the combination of economic, technological, and cultural phenomena we call “globalism” has added new dimensions and demands for functional cooperation between international actors. At the same time, the legitimacy of international law is being challenged by those who fear its predilection for centralization and bureaucracy, and the consequent lack of transparency and accountability that is required for democratic processes. In short, new social ideologies and forces are impacting international law to a degree not experienced for centuries. This multiplicity of values has become an extraordinary topic of conversation for commentators of the last two generations. Needless to say, explicitly accepting that international law rules are influenced by underlying substantive objectives for the international community runs the risk of making international law too dependent on international politics and less autonomous of the whims of international actors. “Values talk” can make international law appear less legal, and for any legal discipline that, at the outset, appears to suffer from a deficit of “legality,” this may seem like folly. Yet the overwhelming scholarly consensus is that international law must understand and embrace its core values, if it is to thrive.4

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There are, however, real concerns raised by the bewildering array of values that have been propounded for international law rules, especially in this new epoch of globalization. One objection is that international law will cease to be an ostensibly neutral body of norms, equally applicable to all international actors, if certain values are advanced that embrace policies that discriminate (in reality or even appearance) with the political, economic or social goals of particular international actors. This potential loss of neutrality in international law–making could be a crippling blow to the system’s legitimacy. Apart from this “external” challenge, there is an even more powerful concern implicated for the “internal” integrity of the system. A conglomeration of values carries with it the risk of incoherence for international law doctrines, or, even worse, outright conflicts between competing goals. An international legal system that serves too many central objectives, according to this view, can satisfy none. As with the analytic structure of doctrines in the discipline, the values inherent in international legal rules can be mapped. As suggested in the historic narrative just sketched, international law began with a handful of central concerns and goals. These have substantially diversified over time. Just as an inkblot spreads over a page, these objectives have not only widened, but also have (to some degree) become diluted and diffuse. 1. Core Values: Sovereignty and Peace. Some of the central values of international law are typically regarded as self-evident by participants in the system. Characterizing particular doctrines as intended to advance sovereignty or peace or human dignity is viewed as an absurd exercise, because all international law rules should be seen as pursuing those objectives. In addition, there is sometimes a false sense of conflict inserted into discussions of international law values. Sovereignty and peace are often articulated as Statecentered objectives, while human dignity is posited as a naturalist counterweight. The reality of the central objectives of international law rules is neither so manifest nor so dichotomous. For example, sovereignty and peace are rightly regarded as values that maintain both the external order of participants in the international system and also the internal legitimacy of those actors. To the extent that international law expects that States will treat each other with the respect and dignity due as independent, autonomous, and sovereign polities, this not only serves the ends of peace and harmony within the international system, but, perhaps even more importantly, also gives domestic regimes the authority they need to conduct their affairs. In a similar vein, promoting international peace and security may be the most significant human right, because times of war and conflict result in the worst conditions for individuals and the gravest abuses. Underlying notions of peace and State authority have been very strong assumptions about territorial sovereignty. As the World Court observed in the Corfu Channel Case, and has been repeated in every attempt by the United Nations (UN) to pronounce the rights and duties of nations,

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“between independent States, respect for territorial sovereignty is an essential foundation of international relations.”5 Although armed incursions into another nation or interferences with its government or the exercise of authority over its territory are the most obvious challenges to a State’s sovereignty, they are not the only ones. One of the difficulties of sovereignty is that, ultimately, it transcends national territory. As State authority has come to expand beyond national boundaries, sovereignty has increasingly meant that international law must respect such values as the dignity of nations, along with their economic and cultural autonomy. The international law value of sovereignty is thus many ideals rolled into one. It is, fundamentally, an urge for order. The international community needs an organizing principle for its operation. States and sovereignty have offered that principle for nearly five centuries. By channeling and managing conflict and mediating between the rights and interests of subgroups and individuals, States were able to lay claim to primary authority and responsibility in the international community. In return, international law was called upon to legitimize this arrangement and strengthen it. This postmedieval order has now come around nearly full-circle, and State monopoly on power in international relations has been profoundly challenged. Strong theories of sovereignty as a rigid form of territorial control have thus given way to weaker claims to independence, autonomy, and respect. They may ultimately be gravitating to the simplest assertion of all: that international actors of the same type be treated equally. The rallying-cry of sovereign equality, once so powerful, may be merely an argument (considered below) for equality and neutrality, not just for States, but for all international actors. In a similar fashion, the value of peace in international law is actually no less than four discrete objectives. To achieve international society has meant that a delicate balance be struck with the internal political and social order of individual States. This has been the singular task of the law of nations, one that it accomplished to a surprisingly effective degree. States can be particularistic; their internal political order can sometimes depend on exclusion, on aggression, and on difference. The rules of State relations have managed to transform this particularism into cooperation. Friendship has been achieved through the translation of hospitality practices into the institutions of diplomacy. Likewise, States have been made tolerant by rules of conduct that permitted the movement of people, goods, and services across boundaries. Trust is possible through the rituals and forms of making faith through treaties and alliances. Finally, restraint came to be exercised by States even in wartime as a consequence of self-interest and concern for order. These are the essential ingredients of community, a notion and principle that is at the theoretical center of modern international law. The development of peace as a fundamental value of international law is the story of the creation of a nascent society, one with a political structure and legal sensibility bearing on the creation of communities and constituents that aspire to universality.

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2. Competing Values: Fairness, Humanity, and Democracy. Counterpoised with the goal of order in the international community is the objective of justice. But “justice” in the sense used here is not simply a restatement of natural law visions for international law. Instead, it has come to mean a definitive grouping of particular values underlying international law rules, and these have certainly been in the latest round of globalization. Unlike sovereignty and peace, these competing values are not necessarily seen as pervading the entire complex of international law doctrine. Rather, they operate at more discrete levels, and through particular mechanisms of globalization. For that reason, it is possible to identify these values at work with more clarity than is possible for the ostensibly central objectives of international law. The objective of fairness in international law has, for example, a long and convoluted pedigree.6 It began life as a central postulate of sovereignty: the equality of States under international law.7 This formal (and circular) expression of sovereign equality as a juridical condition attached to States as subjects of international law led also to a significant substantive insight: international legal rules should have neutral and general application. The essence of fairness in this conception is that international law rules apply equally to all international actors. This directive of moral and political neutrality in international law–making is, however, often at odds with the articulation and extension of other values, and in the uneven effects that globalization has had on nations and peoples around the world. In this way, sovereign equality has merged with two other principles. One is reciprocity: that obligations (either customary or treaty-based) are symmetrical. A State’s performance of an international law rule extends only as far as other actors’ willingness and ability to comply. The other principle is nondiscrimination. The notion that States should not differentiate in the treatment they extend to other polities is a general rule that follows from, and is inherent in, the sovereign equality of States.8 We know that these conceptions of fairness and equality in international relations can be either a regressive hindrance or a utopian fallacy. Taking reciprocity first, exceptions have been made to the formal symmetry of treaty obligations when the conventions at issue are intended to protect human rights and not to advance sovereign interests. The World Court has eschewed reciprocity as a value when it rejected “the maintenance of a perfect contractual balance between rights and duties” 9 for the application of certain human rights instruments. To have embraced a position of true sovereign equality in such circumstances would have meant that the extension of human rights values would have been sacrificed. As for nondiscrimination, States are uniquely privileged in customary international law to afford different kinds of treatment and respect to their neighbors. International actors may be juridically equal, but the reality of international life is quite different. In addition, a host of treaty regimes are crucially premised on having different rules apply to different categories or groupings of States. The structure of membership on the UN Security Council—the central organ for maintaining international peace and

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security—is based on granting the veto power to a select handful of Great Powers. In a very different context, many international environmental regimes embrace a “double-standard” in which nations of the developing world are exempted from many substantive obligations and pollution control targets. The fairness of the Security Council veto or environmental doublestandards is hardly relevant; none of these regimes would have been feasible without legally recognizing differences in the relative military and economic condition of States. If international law has been suspicious of uncritical applications of the reciprocity and nondiscrimination principles, it has also been hostile to many other obvious forms of expression for fairness and equality. Most distributive justice arguments have fallen flat. For example, the New International Economic Order (NIEO) of the 1970s was an attempt at remaking the landscape of international economic relationships and their legal bases.10 In a similar vein, articulation of the Common Heritage of Mankind principle was regarded as a grab of global commonage by developing nations.11 It is perhaps also for this reason that concepts of intergenerational equity, which have been extensively mooted in the academy,12 have been slow to be incorporated in specific international law doctrines. Even while international law may embrace fairness and equality as a value, such objectives can neither remake political or economic realities, nor change historic or biological facts, nor alter the essential character of the international community. Ideas of fairness and equality have worked a significant influence, not as grand statements, but within the interstices of international law rules. To take but one example of “microlevel” applications of equality, consider the doctrine of proportionality—the idea that legal consequences should be gauged to the overall relevance of certain key facts. Proportionality is a form of utilitarian justice and can properly be considered by moral philosophers as a manifestation of fairness. Proportionality appears in many disparate international law doctrinal clusters. In each instance, it operates as a check on the application of what would otherwise be a harsh general rule. In some of its manifestations, it is a sweepingly broad proposition. In the international law concerning countermeasures, uses of force, and the actual conduct of military operations, proportionality requires that international actors take action in rough response to those of their adversaries.13 Proportionality can thus be an adjunct of necessity and can serve the interests of humanity, values that will be considered presently. In another application, proportionality imposes a “narrow tailoring” requirement for State action, as in the permissible derogation of human rights instruments in emergency situations.14 Proportionality, therefore, has pervaded many international law doctrines by acting (1) as an aspiration for situational justice and restraint; or (2) as an expression of interest balancing; or (3) as a technical “double-check” on other rules. These are different forms of fairness and equality, but it is difficult to understand them at higher levels of abstraction.. By way of contrast, the value of humanity in international law is less amorphous and more limited.

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Protection of human dignity as an objective of international law had its first expression in the laws of war. It was only at the birth of the twentieth century— the bloodiest and most destructive in history—that principles of humanity were expressly embraced as an objective of contemporary public international law. In the human rights revolution that followed World War II, the fundamental ideal of humanitarianism was validated. Indeed, in the first World Court decision after the War, “elementary considerations of humanity” were recognized, “even more exacting in peace than in war.”15 After World War II, discussion of humanity as a value in international law shifted into a rights discourse, particularly the freedoms that individuals could claim even against their own governments. Not surprisingly, this has made much consideration of promoting human dignity as an objective of international law quite incoherent. Those who espouse views of rights as “negative liberties”— protecting individuals from the overweening power of government—have tended to ally themselves with the notion that the only relevant freedoms are the “first generation” civil and political rights. By way of contrast, “second generation” economic, social, and cultural rights are viewed by some as necessary demands or entitlements that individuals can legitimately claim of their government. When one confronts more abstract “third generation” rights of a clean environment or peace, the difficulties multiply further. Lastly, “fourth generation” rights of groups and peoples—whether of indigenous populations or distinct ethnic or linguistic minorities—return the international law of human rights to a posture (common before World War II) that international law should be less liberal, and more communitarian, in its appreciation of the value of human dignity. Notions of humanity have come to pervade international law doctrines in many areas and have certainly been perceived as the chief alternative to an international system motivated by concerns for sovereignty and peace. Nevertheless, there are clearly many strands of thinking about human dignity, and it cannot sensibly be regarded as a monolithic value. It can be an adjunct to the principle of restraint and peace. Human rights can be individual- or group-centered, liberal or communitarian. Protection of human dignity can be accomplished through creating a protective zone around the individual, free from government interference. Alternatively, the full potential of human beings may only be realized through the fulfillment of effective access to economic, social, and cultural public goods. Selection of any of these particular sticks in the bundle of ideas we call “humanity” necessitates significant substantive choices for the doctrinal content of international law. It is ironic that among the values that compete at the moral-philosophic center of international law, human rights are the ones most contentiously disputed as being artifacts either of false universalism or dangerous relativism. Rights discourse is often seen as a surrogate for the transmission or refusal of “Western” liberal and individualistic constructs. Human rights are also viewed as necessary adjuncts for the propagation of certain economic or social systems. Far from being neutral in content,

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many doctrines and rules that flow from particular human values are regarded as dangerously freighted. All of this presages a newly emerging objective of international law: representative democracy. A new “democratic entitlement” as a value in international law carries with it many pitfalls and opportunities. In one sense, it would appear to be the ultimate form of “Western” cultural hegemony: imposing on the rest of the world what is viewed by a small group of powerful nations to be a characteristic and essential form of political governance. Seen in this way, it would be a repudiation of other values in international law, particularly sovereign equality. Until now, international law has been studiously agnostic about the form of governments that States, as members of the international community, identify with. This neutrality was enshrined in the basic instruments dealing with the rights and duties of States, with such pronouncements as “[e]very State has the right to independence . . . including the choice of its own form of government” and “[e]ach State has the right to freely choose and develop its political, social, economic and cultural systems.”16 Discussions of democracy in international law are intimately connected with concerns about legitimacy and peace. Insofar as international law has States at its doctrinal center, representative democratic attributes can confer internal legitimacy on governments that not even the principle of self-determination could. If all national regimes were so buttressed, an international legal order that to a large degree is still State-centered will likewise be augmented. Also to the extent there is truth in the canard that democracies never go to war, this new value may promote the objective of international peace and security. Whether these suppositions would apply in a new era of global cultural conflict—counterpoising the forces of liberal democracy against those of religious (and not just Islamic) fundamentalism—remain to be proven. Discussions of a “new” democratic entitlement in international law may be pursuing another sort of ideological agenda. If values of humanity and human dignity are indeterminate—subject to a critique of moral relativism and Western cultural hegemony—then representative democracy may offer a partial, procedural antidote. Domestic determinations of social preferences and the allocation of public goods will be deemed more legitimate under international law standards if made by the institutions of representative democracy. In short, democracy as a value in international law provides a partial process solution to concerns that human rights obligations will dictate certain social and political outcomes. Of course, representative democracy does not solve problems arising from distinct and disenfranchised minorities in particular societies. Nor does it address consequent countermajoritarian difficulties. The attitude may be that democracy serves an important role as an objective in international law in raising the legitimacy of communitarian forms of human rights. 3. Background Values: Necessity, Cooperation, and Rationality. There is thus a subtle interplay between fairness, humanity, and democracy as values in international law. The combination of these principles has offered a powerful

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philosophic alternative to State-centered objectives of peace, order, and sovereignty. Their emergence has also been consistent with the social, economic, and cultural impacts of contemporary globalization. Even so, that is still not the full extent of the picture of international law’s constellation of objectives. Certain ideas defy easy categorization as either State-centered or human-centered values. Among these anomalous motivations underlying the behavior of international actors is necessity. More than a Machiavellian raison d’état, necessity is the notion that States and other subjects of international law rules will seek to adjust their conduct in order to achieve legitimate, but pragmatic, ends. This does not always serve as a carte blanche for States to act in any way they desire, even if contrary to law. Indeed, necessity has served as an important restraining impulse for State behavior.17 If necessity operates as a cautionary principle on the outer margins of State conduct, the value of cooperation reflects progressive and functional impulses within the interstices of the system. Not merely a means to peaceful coexistence between international actors, functional cooperation within the international community has become its own goal, its own objective. Doctrines and rules of international law have thus been developed which specifically advance an agenda of world order and integration along a broad spectrum of activities. Many of these have arisen in the context of growing trade and economic interdependence among nations. Viewing trade relations among States as reflective of comparative advantage—a growing pie that benefits all participants—is certainly better than the mercantilistic zero-sum game that was common in thinking until the mid-twentieth century. Lastly, functional cooperation is viewed as a necessity—common problems, resources, and opportunities confront the entire international community and need to be addressed in a uniform and harmonious fashion.18 No nation can, for example, avoid the consequences of ozone depletion or global economic depression. Economic interdependence has always had its detractors and international law has been no exception in this regard. Economic cooperation has become a central issue of foreign policy for States. In a similar way, discussions of environmental protection for nations have none-too-subtly been converted into disquisitions on “environmental security,” as was indicated, in 2007, by the Nobel Peace Prize being awarded for environmental advocacy in response to global warming. By elevating questions of economic and environmental interdependence to the level of national security has the effect of raising the stakes in the discourse and also placing a greater premium on the selection of appropriate rules that allocate economic power and entitlements. Technology and culture have always figured at the center of progress narratives, and, again, international law has followed that larger trend. The increasing pace of technological development as an agent of global integration has been well remarked. Likewise, the feared homogenization of global culture is seen as an inevitable byproduct of relentless technological and social forces. All of these elements of globalization contribute today to a deep

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ambivalence to what was regarded even a decade ago as a central virtue of international legal order. Nevertheless, functional cooperation remains a vital objective of international law rules and processes. Counterpoised with a communitarian vision of peaceful and productive relations is a brand new value of rationality in international law. Just as cooperation seems to be gloablism’s reformulation of peace, rationality would appear merely to be a rehash of fairness as a value in international law. As usual, appearances can be misleading. Rationality recognizes that the international community operates in conditions of what John Rawls would call “moderate scarcity,”19 and thus requires a fair allocation of those resources. Yet, the functionalist vision of limitless progress and growth is disputed in a rationally bounded international community. Indeed, the central metaphor for the rational management of international public goods and common resources is not a progress narrative at all; it is the dark tale of the Prisoners’ Dilemma.20 While functionalists espousing values of cooperation foresee the creation of global regulatory systems beyond mere framework instruments, those who see rationality through the lens of economics are rather less sanguine.21 Increasingly, though, international law rules are being influenced by values of rationality. Framed in the way I have done so here, neither necessity nor cooperation nor rationality tend toward imposing a particular political or social ideology on the content of international law rules. Janus-faced, these values have a modern, abstract appeal that might help to explain why many international actors seem to be preferring them to the older, core values of peace and sovereignty and their newer, but heavily freighted, competing concerns of fairness, humanity and democracy. The very structure of international law discourse is at stake in this debate about international law values. It is ironic that the best illustration of which values really matter in international law comes not through neutral and dispassionate discussion of the merits of these objectives, but, rather, through the collision of these values as reflected in particular doctrines. *

*

*

Globalization has thus become the stage upon which the competing values of world law are rehearsed and presented to international constituencies. This volume has explored not only the law of globalization, but also law as globalization and law in globalization. At a minimum, as this book has suggested from the outset, it is a profound mistake to assume that the political, economic, social, and cultural skeins of contemporary globalization can be separated from their legal textures, the warp and weave of world law. Assessing the underlying principles for world law is no less a project, as Hedley Bull described, of determining the “common interests and common values” of international society and to “conceive” of “a common set of rules” for participants, who “share in the working of common institutions.”22 Indeed, many of the common challenges of international law and

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globalization—discussed in great detail in this book—appear to arise from failures of imagination. The chief of these is the seeming inability to place contemporary globalization in historical perspective and the reluctance to acknowledge that, just perhaps, our times are not so extraordinary or exceptional after all. Likewise, in tracing the trajectories in the development of world law, it would be wise to recognize that we are repeating many past patterns of change and growth. This book has recounted the mutual story of international law and globalization as a cautionary tale. But we can hope it will have a happy ending—at least for its current chapter—as we enter the first decades of the new millennium.

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No t e s

1

Empire

1. Hedley Bull, The anarchical society: a study of order in world politics 13 (London: Macmillan, 1977). See also Martin Wight, International theory: the three traditions (Gabriele Wight & Brian Porter, eds.; Leicester: Leicester Univ. Press, 1992). 2. See Michael I. Rostovtseff, International Relations in the Ancient World, in The history and nature of international relations 35 (E. Walsh, ed.; New York: Macmillan, 1922). 3. See Malcolm N. Shaw, International law 14 (2d ed.; Cambridge, UK: Grotius Press, 1986). 4. For more on the notion of balance of power theory as a modern, Enlightenment construct, see Edward Vose Gulick, Europe’s classical balance of power 3–91 (Ithaca, NY: Cornell Univ. Press, 1955); Martin Wight, Power politics 168–85 (2d ed.; Hammondsworth, UK: Penguin Press, 1986). 5. David Hume, On the balance of power, in 1 Essays 348 (T. H. Green & T. H. Grose, eds.; 1875). 6. Rostovtseff, supra note 2, at 38. 7. See Sir Henry S. Maine, Ancient law (1861) (1965 rep.). 8. M. K. Nawaz, The law of nations in ancient India, 6 Indian Yearbook of International Affairs 172, 173 (1957). 9. Thomas A. Walker, A history of the law of nations 31 (Cambridge: Cambridge Univ. Press, 1899). 10. Vilho Harle, Ideas of social order in the ancient world 91–94, 165–68, 171–74 (Westport, CT: Greenwood Press, 1998). 11. See Robert Seymour Conway, Ancient empires and the modern world (Cambridge, MA: Harvard Univ. Library, 1931). 12. “BCE” means “Before the Christian Era.” 13. See The Cambridge ancient history (3d ed.; London: Cambridge Univ. Press, 1970–2005; vols. 4–7). 14. See John M. Wickersham, Hegemony and Greek historians (Lanham, MD: Rowman & Littlefield Publishers, 1994). 15. See The Cambridge ancient history, supra note 13, vols. 8–13. 16. See The Roman law tradition (A. D. E. Lewis & D. J. Ibbetson, eds.; Cambridge: Cambridge Univ. Press, 1994). 17. See The Cambridge history of China (Denis Twitchett & John K. Fairbank, eds.; Cambridge: Cambridge Univ. Press, 1978–; vols. 1 & 3). 18. See H. R. Trevor-Roper, The age of expansion; Europe and the world, 1559–1660 (New York: McGraw-Hill, 1968).

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19. See Fred Anderson, The crucible of war: the Seven Years’ War and the fate of empire in British North America, 1754–1766 (New York: Alfred A. Knopf, 2000). 20. See Charlez Henry Alexandrowicz, An introduction to the history of the law of nations in the East Indies (16th, 17th and 18th centuries) (Oxford: Clarendon Press, 1967). 21. See Eric J. Hobsbawm, The age of empire, 1875–1914 (London: Weidenfeld & Nicolson, 1987). 22. See Antony Anghie, Imperialism, sovereignty, and the making of international law (Cambridge: Cambridge Univ. Press, 2005); Martti Koskenniemi, The gentle civilizer of nations: the rise and fall of international law, 1870–1960 (Cambridge: Cambridge Univ. Press, 2002). 23. See Hans-Henrik Holm & Georg Sørensen, Whose world order?: uneven globalization and the end of the cold war (Boulder, CO: Westview Press, 1995); Mike Sewell, The cold war (Cambridge: Cambridge Univ. Press, 2002). 24. See Global transformations: politics, economics and culture (David Held, ed.; Stanford: Stanford Univ. Press, 1999); Jan Aart Scholte, Globalization: a critical introduction (2d ed.; New York: Palgrave Macmillan, 2005).

2

Belief

1. See John Finnis, Natural law and natural rights (Oxford: Oxford Univ. Press, 1984). 2. See Religion and international law (Mark W. Janis, ed.; 2d ed.; The Hague: Martinus Nijhoff, 1999). 3. J. G. Starke, An introduction to international law 22 (10th ed.; London: Buterrworths, 1989). 4. Georg Schwarzenberger and E. D. Brown, A manual of international law 16 (6th ed., rev. 2d impression; Milton, UK: Professional Books, 1976). 5. See Hans Kelsen, Principles of international law 243–44 (2d ed.; New York, Holt Rinehart & Winston, 1966). 6. Joan D. Tooke, The just war in Aquinas and Grotius (London: S. P. C. K., 1965); Michael Walzer, Just and unjust wars: a moral argument with historical illustrations (4th ed.; New York: Basic Books, 2006). 7. See John Eppstein, The Catholic tradition of the law of nations (London: Carnegie Endowment, 1935); Norman De Mattos Bentwich, The religious foundations of internationalism (London: Allen & Unwin, 1933); Robert Francis Wright, Medieval internationalism (London: Williams & Norgate, 1930). 8. See Henry Harrisse, The diplomatic history of America: its first chapter 1452– 1493 (London: Stevens, 1897). 9. See Hugo Grotius, Mare liberum (Freedom of the seas) (Richard Hakluyt, trans.; David Armitage, ed.; Indianapolis, IN: Liberty Fund, 2004). 10. See Francisco de Vitoria, De indis et de iure belli relectiones (The Indies and Reflections on the Laws of War) (1557) (Washington, DC: Classics of International Law rep., 1917); James Brown Scott, The Spanish origin of international law: Francisco De Vitoria and his law of nations (Oxford: Oxford Univ. Press, 1934); Antony Anghie, Francisco de Vitoria and the colonial origins of international law, 5 Soc & Legal Stud 321 (1996). 11. See, e.g., H. Krabbe, L’idee moderne de l’Etat, 13 RCADI 513 (1926); Leon Duguit, Objective Law (in 3 parts), 20 Columbia Law Review 816 (1920), 21 Columbia Law Review 17, 125 (1921).

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12. See Christian von Wolff, Jus gentium methodo scientifica pertractum (The Law of Nations According to the Scientific Method) (1749) (New York: Carnegie Classics of Int’l Law rep., 1934); 1 Sir Robert Phillimore, Commentaries upon international law 3 (3d ed.; 1879) (rep. 1985). 13. See Anthony Clark Arend, Legal rules and international society (New York: Oxford Univ. Press, 1999); Bull, supra note 1 (ch. 1); Wight, supra note 4 (ch. 1). 14. See Charles de Visscher, Theory and reality in public international law 17–18 (P. E. Corbett, trans.; rev. ed.; Princeton: Princeton Univ. Press, 1968); Charles G. Fenwick, International law 32–33, 49 (4th ed.; New York: AppletonCentury-Crofts, 1965). 15. See James Leslie Brierly, The basis of obligation in international law 3–9 (Oxford: Oxford Univ. Press, 1958). 16. Immanuel Kant, Perpetual peace (New York: Cosimo, 2005). See also Eric S. Easley, The war over perpetual peace: an exploration into the history of a foundational international relations text (New York: Palgrave Macmillan, 2004). 17. See T. A. Taracouzio, The Soviet Union and international law, a study based on the legislation, treaties and foreign relations of the Union of Socialist Soviet Republics (New York: Macmillan, 1935; rep. 1972); Virginia Lois Gott, The national socialist theory of international law, 32 AJIL 704 (1938). 18. See Matthew Ouimet, The rise and fall of the Brezhnev doctrine in Soviet foreign policy (Chapel Hill: Univ. of North Carolina Press, 2003).

3

Conflict

1. See Roger Boesche, The first great political realist: Kautilya and his Arthashastra (Lanham, MD: Lexington Books, 2002); C. H. Alexandrowicz, Kautilyan principles and the law of nations, 41 BYBIL 301 (1965); Ved P. Nanda, International law in ancient Hindu India, in The influence of religion on the development of international law (Mark W. Janis, ed.; Dordrecht: Martinus Nijhoff, 1991). 2. See David J. Bederman, International law in antiquity (Cambridge: Cambridge Univ. Press, 2001); Shabtai Rosenne, The influence of Judaism on the development of international law, 5 Netherlands International Law Review 119 (1958); Alan Watson, International law in archaic Rome: war and religion (Baltimore, MD: Johns Hopkins Univ. Press, 1993). 3. See, e.g., Coleman Phillipson, The international law and custom of ancient Greece and Rome (London: Macmillan, 1911). 4. See Wright, supra note 7 (ch. 2). 5. See Constance Brittain Bouchard, Strong of body, brave and noble: chivalry and society in medieval France (Ithaca, NY: Cornell Univ. Press, 1998); Maurice Keen, Chivalry (New Haven, CT: Nota Bene, 1984); Theodor Meron, Henry’s wars and Shakespeare’s laws: perspectives on the law of war in the later Middle Ages (Oxford: Clarendon Press, 1993); Theodor Meron., Bloody constraint: war and chivalry in Shakespeare (New York: Oxford Univ. Press, 1998). 6. See Jim Bradbury, The medieval siege (Rochester, NY: Boydell Press, 1992). 7. See Crusade and conversion on the Baltic frontier, 1150–1500 (Alan V. Murray, ed.; Aldershot, UK: Ashgate, 2001). 8. See Balthazar Ayala, De jure et officiis bellicis et disciplina militari libri III (Three books on the law of war, and on the duties connected with war, and on military discipline) (Washington, DC: Carnegie Institution, 1912); Pierino Belli, De re militari et bello tractatus (A treatise on military matters and warfare)

206

9. 10.

11. 12. 13.

14.

15.

16.

17. 18. 19.

No t e s (1563) (rep. Oxford: Clarendon Press, 1936); Hugo Grotius, De jure praedae commentarius (Commentary on the law of prize and booty) (Martine Julia van Ittersum, ed.; Indianapolis, IN: Liberty Fund, 2006). See C. V. Wedgwood, The Thirty Years War (New York: New York Review of Books, 2005). See 11 J. H. W. Verzijl, W. P. Heere, & J. P. S. Offerhaus, International law in historical perspective: the law of maritime prize (Leiden, Holland: Sijthoff, 1992); C. John Colombos, A treatise on the law of prize (3d ed.; London: Longmans & Green, 1926). See Henry J. Bourguignon, Sir William Scott, Lord Stowell, judge of the High Court of Admiralty, 1798–1828 (Cambridge: Cambridge Univ. Press, 1987). Francis Lieber, Lieber’s Code and the law of war (Richard Shelly Hartigan, ed.; Chicago, IL: Precedent, 1983). See Arthur Eyffinger, The 1899 Hague Peace Conference: “the Parliament of man, the Federation of the world” (The Hague: Kluwer Law International, 2000); The proceedings of the Hague Peace Conferences (James Brown Scott, ed.; New York: Oxford Univ. Press, 1921). See A. Pearce Higgins, The Hague peace conferences and other international conferences concerning the laws and usages of war (Cambridge: Cambridge Univ. Press, 1909). Antonio Cassese, The Martens Clause: Half a loaf or simply a pie in the sky?, 11 EJIL 187 (2000); Theodor Meron, The humanization of humanitarian law, 94 AJIL 239, 250 (2000). David P. Forsythe, The International Committee of the Red Cross: a neutral humanitarian actor (New York: Routledge, 2007); Georges Willemin, The International Committee of the Red Cross (Boston, MA: Martinus Nijhoff, 1984). See 1986 ICJ 14, 113–14. See Antonio Cassese, International criminal law (Oxford: Oxford Univ. Press, 2003). See Legality of the threat or use of nuclear weapons opinion, 1996 ICJ 226.

4

Commerce

1. See Anthony Giddens, The consequences of modernity (London: Polity Press, 1990); Anthony Giddens, Runaway world (New York: Routledge, 1999); Robert Gilpin, Global political economy (Princeton: Princeton Univ. Press, 2001); Global capitalism (Will Hutton & Anthony Giddens, eds.; New York: Free Press, 2000). 2. See Hassan Salih Khalilieh, Admiralty and maritime laws in the Mediterranean Sea (ca. 800–1050): the Kita-b Akriyat al-Sufun vis-à-vis the Nomos Rhodion nautikos (Boston, MA: Brill, 2006); William Tetley, The general maritime law—the Lex Maritima (With a brief reference to the ius commune in arbitration law and the conflict of laws), 20 Syracuse Journal of International Law and Commerce 105 (1994). 3. See Peter Stein, Regulae Iuris: from juristic rules to legal maxims (Edinburgh: Edinburgh Univ. Press, 1966); R. H. Helmholz, The Ius Commune in England 3–15 (Oxford: Oxford Univ. Press, 2001). See also Harold J. Berman, Law and revolution, II: the impact of the Protestant reformations on the Western legal tradition 7, 120–64 (Cambridge, MA: Belknap Press of Harvard Univ. Press,

No t e s

4.

5. 6. 7.

8. 9. 10. 11. 12.

13.

14.

15. 16.

17. 18.

19. 20.

207

2003); Sir Paul Vinogradoff, Roman law in medieval Europe (1929) (New York: Barnes & Noble, 1968). See Harold J. Berman, Law and Revolution, I: the formation of the Western legal tradition 295–332 (Cambridge, MA: Harvard Univ. Press, 1983); Manlio Bellomo, The common legal past of Europe, 1000–1800 (Lydia Cochrane, trans.; Washington, DC: Catholic Univ. of America Press, 1995); Raoul Charles van Caenegem, Law in the medieval world, in Legal history: a European perspective 115 (London: Hambledon Press, 1991); Walter Ullmann, Law and politics in the Middle Ages (Ithaca, NY: Cornell Univ. Press, 1975). See Berman, supra note 4, at 339–41. Magna Carta, 17 John c. 41 (1215). See F. M. Burdick, Contributions of the law merchant to the common law, 3 Select essays in Anglo-American legal history 50 (Boston, MA: Little Brown, 1909). See Berman, supra note 4, at 336–48. See also William Mitchell, An essay on the early history of the law merchant (Cambridge: Cambridge Univ. Press, 1904). See Berman, supra note 4, at 347–48. See ibid. 344–54. See Alan Watson, Legal transplants: an approach to comparative law (2d ed.; Athens, GA: Univ. of Georgia Press, 1993). See John Henry Merryman, On the convergence (and divergence) of the civil law and the common law, 17 Stanford Journal of International Law 357, 359–61 (1991). See Sir Paul Vinogradoff, Historical jurisprudence: introduction 157–59 (London: Oxford Univ. Press, 1923). But see Marie-France Renoux-Zagame, Le Droit Cummun European entre Histoire et Raison, 14 Droits: Revue Francaise de Theorie Juridique 27 (1991); Jean-Louis Halperin, L’approche Historique et la Problematique du Jus Commune, 52 Revue Internationale de Droit Compare 717 (2000) (both criticizing “romantic” notions of the ius commune). See J. H. Parry, The establishment of the European hegemony, 1415–1715: trade and exploration in the age of the Renaissance (3d rev. ed.; New York: Harper & Row, 1966); The trans-Atlantic slave trade: a database on CD-ROM (Cambridge: Cambridge Univ. Press, 1999). See 1 William Blackstone, Commentaries on the laws of England *273 (Chicago, IL: Univ. of Chicago Press, 2002). See D. A. Azuni, Droit maritime de l’Europe (The maritime law of Europe) (1806) (rep. Clark, NJ: Lawbook Exchange, 2006); Thomas J. Schoenbaum, Admiralty and maritime law (4th ed.; St. Paul, Minnesota: Thomson/West, 2004). See Richard Dale, The first crash: lessons from the South Sea bubble (Princeton: Princeton Univ. Press, 2004). See Michael Edelstein, Overseas investment in the age of high imperialism: the United Kingdom, 1850–1914 (London: Methuen, 1982); Heinz Gollwitzer, Europe in the age of imperialism, 1880–1914 (David Adam and Stanley Baron, trans.; New York: Norton, 1979). See André Siegfried, Suez and Panama (H. H. and Doris Hemming, trans.; London: J. Cape, 1940). See Edwin M. Borchard, The diplomatic protection of citizens abroad: or the law of international claims (New York: Banks Law Pub., 1922); International law of

208

21.

22. 23.

24.

25.

No t e s state responsibility for injuries to aliens (Richard B. Lillich, ed.; Charlottesville: Univ. Press of Virginia, 1983). Harry Roberts Claim (U.S. v. Mex.), 4 RIAA 77 (1926), rep. 21 AJIL 357 (1927). See also Frederick Sherwood Dunn, The diplomatic protection of Americans in Mexico (New York: Columbia Univ. Press, 1933); A. H. Feller, The Mexican claims commissions, 1923–1934; a study in the law and procedure of international tribunals (New York: Macmillan, 1935). 19 U.S. Dep’t of State, Press Releases 50–52, 136–44 (1938). See Mohammed Bedjaoui, Pour un nouvel ordre économique international (Towards a new international economic order) (New York: Holmes & Meier, 1979); Michael Hudson, Global fracture: the New International Economic Order (New York: Harper & Row, 1977); Scott Newton, The global economy, 1944–2000: the limits of ideology (London: Arnold, 2004). See Rudolf Dolzer, Bilateral investment treaties (The Hague: Martinus Nijhoff, 1995); Richard B. Lillich, The protection of foreign investment; six procedural studies (Syracuse, NY: Syracuse Univ. Press, 1965); Bilateral investment treaties 1995–2006: trends in investment rulemaking (New York: United Nations, 2007). See James Crawford, The International Law Commission’s articles on state responsibility: introduction, text, and commentaries (Cambridge: Cambridge Univ. Press, 2002).

5

Dignity

1. United States v. La Jeune Eugenie, 26 F. Cas. 832, 846 (C. C. D. Mass. 1822) (No. 15,551) (Story, J.). 2. The Antelope, 23 U.S. S. Ct. (10 Wheat.) 66, 115 (1825). See also John T. Noonan, Jr., The Antelope: The ordeal of the recaptured Africans in the administrations of James Monroe and John Quincy Adams (Berkeley: Univ. of California Press, 1977). 3. Brown v. United States, 12 U.S. S. Ct. (8 Cranch) 110, 128 (1814) (C.J. Marshall). See also Benjamin Munn Ziegler, The international law of John Marshall; a study of first principles (Chapel Hill: Univ. of North Carolina Press, 1939). 4. See The Le Louis, 2 Dods. 210, 245, 165 Eng. Rep. 1464, 1475–76 (Adm. 1817) (Scott, J.). 5. See Paul Michael Kielstra, The politics of slave trade suppression in Britain and France, 1814–48 (New York: St. Martin’s Press, 2000). 6. See Donald L. Canney, Africa Squadron: the U.S. Navy and the slave trade, 1842–1861 (Washington, DC: Potomac Books, 2006); Tara Helfman, The court of vice admiralty at Sierra Leone and the abolition of the West African slave trade, 115 Yale Law Journal 1122 (2006). 7. See Thomas S. Kuhn, The structure of scientific revolutions (3d ed.; Chicago, IL: Univ. of Chicago Press, 1996). 8. See Ian Clark, International legitimacy and world society (Oxford: Oxford Univ. Press, 2007). 9. See Bruce Alan Masters, Christians and Jews in the Ottoman Arab world: the roots of sectarianism (New York: Cambridge Univ. Press, 2001). 10. See Miklós Kontra, Language, a right and a resource: approaching linguistic human rights 118–42, 317–28 (Budapest: Central European Univ. Press, 1999).

No t e s

209

11. See also Minority schools in Albania, 1935 PCIJ (Ser. A/B; No. 64). 12. See Christian Raitz von Frentz, A lesson forgotten: minority protection under the League of Nations: the case of the German minority in Poland, 1920–1934 (New York: St. Martin’s Press, 1999). 13. See, e.g., Certain German interests in Polish Upper Silesia (merits), 1926 PCIJ (Ser. A; No. 7); Rights of minorities in Upper Silesia (minority schools), 1928 PCIJ (Ser. A; No. 15); Access to German minority schools in Upper Silesia, 1931 PCIJ (Ser. A/B; No. 40); Treatment of Polish nationals and other persons of Polish origin or speech in the Danzig territory, (Ser. A/B; No. 44). 14. See Robert F. Drinan, The mobilization of shame: a world view of human rights (New Haven, CT: Yale Univ. Press, 2001); Julie Mertus, The United Nations and human rights: a guide for a new era (New York: Routledge, 2005). 15. 1949 ICJ 174. 16. For more on the background of this incident, see David J. Bederman, The story of The Reparation for Injuries Case: the law of nations is transformed into international law, in International law stories (Mark Janis, John E. Noyes, & Laura Dickinson, eds.; New York: Foundation Press, 2007). 17. See James F. Willis, Prologue to Nuremberg: the politics and diplomacy of punishing war criminals of the First World War (Westport, CT: Greenwood Press, 1982). 18. See International Military Tribunal (Nuremberg) judgment and sentences (Oct. 1, 1946), 41 AJIL 172 (1947). 19. See Arnold C. Brackman, The other Nuremberg: the untold story of the Tokyo war crimes trials (New York: Morrow, 1987); Norbert Ehrenfreund, The Nuremberg legacy: how the Nazi war crimes trials changed the course of history (New York: Palgrave Macmillan, 2007); Telford Taylor, The anatomy of the Nuremberg trials: a personal memoir (New York: Knopf, 1992). 20. See Eichmann v. Attorney-General of Israel, 36 ILR 5, on appeal, 36 ibid. at 277 (1962) (Israel). See also Robert K. Woetzel, The Nuremberg trials in international law, with a postlude on the Eichmann case (New York: Praeger, 1962). 21. See Thomas L. Friedman, The Lexus and the olive tree: understanding globalization (New York: Anchor Books, 1999); Anthony Giddens, The Third Way: Toward a renewal of social democracy (Malden, MA: Polity Press, 1999); David Held, Global covenant: the social democratic alternative to the Washington Consensus (Cambridge: Polity Press, 2004); Michael Novak, The spirit of democratic capitalism (New York: Simon & Schuster, 1982).

6

Universalism

1. See Charles William Chadwick Oman, The Dark Ages, 476–918 (6th ed.; London: Rivingtons, 1954); Globalization and global history (Barry K. Gills & William R. Thompson, eds.; New York: Routledge, 2006). 2. See John M. Barry, The great influenza: the epic story of the deadliest plague in history (New York: Penguin Books, 2005); Jared Diamond, Guns, germs and steel (New York: W. W. Norton, 1999). 3. See Paul Bairoch, Economics and world history: myths and paradoxes (Chicago, IL: Univ. of Chicago Press, 1993). 4. See Thomas E. Hall & J. David Ferguson, The Great Depression: an international disaster of perverse economic policies (Ann Arbor: Univ. of Michigan

210

5. 6. 7.

8. 9. 10.

11. 12. 13.

14.

15.

16. 17. 18. 19. 20. 21. 22.

No t e s Press, 1998); Lionel Robbins, The Great Depression (New York: Macmillan, 1935). See Gerald D. Nash, The crucial era: the Great Depression and World War II, 1929–1945 (2d ed.; New York: St. Martin’s Press, 1992). See John Bassett Moore, International law and some current illusions (New York: Macmillan, 1924). See John Milton Cooper, Breaking the heart of the world: Woodrow Wilson and the fight for the League of Nations (Cambridge: Cambridge Univ. Press, 2001); Georg Schwarzenberger, The League of Nations and world order: a treatise on the principle of universality in the theory and practice of the League of Nations (London: Constable, 1936); Alfred Eckhard Zimmern, The League of Nations and the rule of law, 1918–1935 (2d rev. ed.; London: Macmillan and Co., 1939). See Charles Howard Ellis, The origin, structure and working of the League of Nations (Boston, MA: Houghton Mifflin, 1929). See, e.g., Thomas Buergenthal, Law-making in the International Civil Aviation Organization (Syracuse, NY: Syracuse Univ. Press, 1969). See Vladimir Degan, Sources of international law (The Hague: Martinus Nijhoff, 1997); Mark Villiger, Customary international law and treaties: a manual on the theory and practice of the interrelation of sources (2d ed.; The Hague: Kluwer, 1997). The Statute of the International Court of Justice, art. 38, para. 1, Jun. 26, 1945, 59 Stat. 1055, 1066. Petroleum Development Ltd. v. Sheikh of Abu Dhabi, 18 ILR (No. 37), at 149 (1951). See Arend, supra note 13 (ch. 2), at 49–53. See also John King Gamble, Emily A. Allen, & Nicole L. Dirling, International law and globalization: allies, antagonists, or irrelevance? 30 Syracuse Journal of International and Comparative Law 1 (2003); Michael Ramsey, The empirical dilemma of international law, 41 San Diego Law Review 1243 (2004). See Gerrit W. Gong, The standard of “civilization” in international society (Oxford: Oxford Univ. Press, 1984); Antony Anghie, Finding the peripheries: sovereignty and colonialism in nineteenth century international law, 40 HILJ 1 (1999). See Bin Cheng, General principles of law as applied by international courts and tribunals (1953) (Cambridge: Cambridge Univ. Press, rep. 1987); A. M. Stuyt, The general principles of law as applied by international tribunals to disputes on attribution and exercise of state jurisdiction (The Hague: Martinus Nijhoff, 1946); Hersch Lauterpacht, Private law sources and analogies of international law (London: Longmans, Green & Co., 1927). 1950 ICJ 266 (Colom. v. Peru). See C. Neale Ronning, Diplomatic asylum; legal norms and political reality in Latin American relations (The Hague: Martinus Nijhoff, 1965). See Harold J. Berman, Historical foundations of law, 54 Emory Law Journal 13, 21 (2005). See John Rawls, The law of peoples (Cambridge, MA: Harvard Univ. Press, 1999). See ibid. 85–86. See ibid. 4–7. See ibid. 25–30.

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211

23. Ibid. at 37. 24. See ibid. and n. 42 (citing J. L. Brierly, The law of nations: an introduction to the law of peace (6th ed.; New York: Oxford Univ. Press, 1963); Terry Nardin, Law, morality and the relations of states (Princeton: Princeton Univ. Press, 1983)). 25. See ibid. 5, 89.

7

Movement

1. See G. P. Pamborides, International shipping law: legislation and enforcement (The Hague: Kluwer, 1999). 2. See Rex W. Faulks, International transport: an introduction to current practices and future trends (London: Kogan Page, 1999). 3. The Apollo, 1 Haggard 306, 312, 166 Eng Rep 109, 111 (High Ct. Admiralty 1824) (UK). 4. See Report on Aviation safety, Committee on Aeronautics of the Association of the Bar of the City of New York, 64 Journal of Air Law and Commerce 771 (1999). 5. See Oliver James Lissitzyn, International air transport and national policy (New York: Garland, 1983); Marek Zylicz, International air transport law 63–64 (Dordrecht: Martinus Nijhoff, 1992). 6. Ademuni-Odeke, Protectionism and the future of international shipping: the nature, development and role of flag discriminations and preferences, cargo reservations and cabotage restrictions, state intervention and maritime subsidies 10–15 (The Hague: Martinus Nijhoff, 1984). 7. See Boleslaw Adam Boczek, Flags of convenience: an international legal study (Cambridge, MA: Harvard Univ. Press, 1962). 8. See K. R. Simmons, The International Maritime Organization (London: Simmonds & Hill Publishing, 1994); Samir Mankabady, The International Maritime Organization (London: Croom Helm, 1986). 9. See R. Michael M’Gonigle & Mark W. Zacher, Pollution, politics, and international law: tankers at sea (Berkeley: Univ. of California Press, 1979). 10. Oil Pollution Act of 1990, 33 USC §§ 2701–2720 (2004). 11. International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 12 ILM 1319 (1973), modified by Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, Jun. 1, 1978, 17 ILM 546 (1978) (entered into force Oct. 2, 1983). 12. See Locke v. United States, 529 U.S. S. Ct. 89 (2000). 13. Convention on International Civil Aviation, Dec. 7, 1944, 15 UNTS 295–301. 14. See Thomas Buergenthal, Law making by the International Civil Aviation Organization 57–95, 114–22 (Syracuse, NY: Syracuse Univ. Press, 1969). 15. See Max de Lobtinière, Standardising airline English, The Guardian Weekly, available at http://education.guardian.co.uk/tefl/story/0,,617623,00.html (last visited Sept. 23, 2007). 16. See Dipendra Sinha, Deregulation and liberalisation of the airline industry: Asia, Europe, North America and Oceania (Aldershot, UK: Ashgate, 2001). 17. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 137 LNTS 11. 18. See David J. Bederman, International control of marine “pollution” by exotic species, 18 Ecology Law Quarterly 677, 679–86 (1991).

212

No t e s

19. Matthew Hart, Invasion of the Zebra Mussels, Atlantic Monthly (Jul. 1990), 81, 86. 20. See Biological pollution: the control and impact of invasive exotic species (Bill N. McKnight, ed.; Indianapolis, IN: Indiana Academy of Sciences, 1993). 21. See Carol Kaesuk Yoon, Altered salmon leading way to dinner plate, but rules lag, NY Times, May 1, 2000, at A1, A20; David E. Adelman & John H. Barton, Environmental regulation for agriculture: towards a framework to promote sustainable intensive agriculture, 21 Stanford Environmental Law Journal 3, 24–25 (2002); Barbara Eggers & Ruth Mackenzie, The Cartagena Protocol on Biosafety, 2000 Journal of International Economic Law 525. 22. See Harmful invasive species: legal responses (Marc L. Miller & Robert Fabian, eds.; Washington, DC: Environmental Law Institute, 2004). 23. Nov. 8, 1933, art. 2, para. 2, 172 LNTS 241, 248. 24. Dec. 10, 1982, art. 196, 21 ILM 1261 (1982). 25. See 69 Federal Register 44952 (Jul. 28, 2004) (for the U.S. Coast Guard’s ballast water management program regulations). 26. See International Plant Protection Convention, Apr. 3, 1952, 150 UNTS 67 (as amended Nov. 17, 1997). 27. See Simon Lyster, International wildlife law (Cambridge, UK: Grotius, 1985). 28. Bonn Convention on the Conservation of Migratory Species of Wild Animals, Jun. 23, 1979, 19 ILM 15 (1980). 29. Convention on Biological Diversity, Jun. 5, 1992, 31 ILM 818 (1992). 30. See David J. Bederman, The bank for international settlements and the debt crisis: a new role for the central bankers’ bank?, 6 International Tax and Business Lawyer 92, 92–93 (1988). 31. See Ariel Buira, Reflections on the international monetary system (Princeton: Dep’t of Economics, Essays in International Finance, 1995); Robert E. Keleher, Global economic integration: trends and alternative policy responses, in money and the nation state: the financial revolution, government and the world monetary system 305 (Kevin Dowd & Richard Timberlake, Jr., eds.; New Brunswick, NJ: Transaction Publishers, 1998). 32. See Susan Strange, Mad money (Manchester: Manchester Univ. Press, 1998). 33. See Abdur R. Chowdhury, The Asian currency crisis: origins, lessons, and future outlook (Helsinki: United Nations Univ., World Institute for Development Economics Research, 1999); Gerald Tan, The Asian currency crisis (Singapore: Times Academic Press, 2000); Tigers in trouble: financial governance, liberalisation and crises in East Asia (K. S. Jomo, ed.; New York: St. Martin’s Press, 1998). 34. See The International Monetary Fund, the IMF’s response to the Asian crisis: a factsheet, Jan. 17, 1999 (“The IMF’s priority was also clear: to help restore confidence to the economies affected by the crisis.”), at http://www.imf.org/ external/np/exr/facts/asia.htm (last visited Jul. 8, 2004). 35. See Javed Maswood, International political economy and globalization 84–95 (Singapore: World Scientific, 1999). 36. See Eva Riesenhuber, The International Monetary Fund under constraint: legitimacy of its crisis management (The Hague: Kluwer Law International, 2001). 37. Dec. 27, 1945, 2 UNTS 39; as amended May 31, 1968, 726 UNTS 266, and Jun. 28, 1990, 31 ILM 1307 (1990). 38. See Beth A. Simmons, Money and the law: why comply with the public international law of money?, 25 YJIL 323 (2000).

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213

39. See William H. McNeill, Plagues and peoples (Garden City, NY: Anchor Press, 1976); Diamond, supra note 2 (ch. 6). 40. See Richard Collier, The plague of the Spanish Lady: the influenza pandemic of 1918–1919 (London: Macmillan, 1974; rep., London: Allison & Busby, Ltd., 1996); Alfred W. Crosby, America’s forgotten pandemic: the influenza of 1918 (Cambridge: Cambridge Univ. Press, 1989). 41. See David P. Fidler, International law and infectious diseases (Oxford: Clarendon Press, 1999); David P. Fidler and Martin S. Cetron, International Considerations, in Law in Public Health Practice 168 (Richard A. Goodman, ed.; Oxford: Oxford Univ. Press, 2d ed. 2007). See also International Sanitary Convention, Jun. 21, 1926, 78 LNTS 229. 42. Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal instruments, 33 ILM 1125, 1153 (1994). 43. See Peter M. Haas, Introduction: epistemic communities and international policy coordination, 46 International Organization 1, 3 (1992). 44. See International law and AIDS: international response, current issues, and future directions (Lawrence Gostin, ed.; Chicago, IL: Section of International Law and Practice, American Bar Association, 1992); Multicultural human services for AIDS treatment and prevention: policy, perspectives, and planning (Julio Morales & Marcia Bok, eds.; New York: Haworth Press, 1992). 45. See International Law and AIDS, supra note, at 101–20. 46. See Fidler, supra note 41, at 18, 310.

8

Commons

1. See Garrett Hardin, The tragedy of the commons, 162 Science 1243 (1968). 2. See 1 Green Hackworth, Digest of International Law 458 (Washington, DC: Government Printing Office, 1940). 3. Dec. 1, 1959, 402 UNTS 71. 4. Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, 30 ILM 1455 (1991). 5. See David J. Bederman, Theory on ice: Antarctica in international relations, 39 VJIL 467 (1999). 6. See Rüdiger Wolfrum, The internationalization of common spaces outside national jurisdiction: the development of an international administration for Antarctica outer space, high seas, and the deep sea-bed (Berlin: Springer, 1984); Kemal Baslar, The concept of the common heritage of mankind in international law (The Hague: Martinus Nijhoff Publishers, 1998). 7. Convention on the Regulation of Antarctic Mineral Resource Activities, Jun. 2, 1988, 27 ILM 868 (never entered into force). 8. The author has served as international law counsel to ASOC from 1990 to the present. 9. See Jose-Roberto Perez-Salom, Sustainable tourism: emerging global and regional regulation, 13 GIELR 801 (2001). 10. See Paul Lincoln Stoller, Protecting the White Continent: is the antarctic protocol mere words or real action, 12 Arizona Journal of International and Comparative Law 335 (1995); Woodruff A. Polk, Welcome to the Hotel Antarctica: the EPA’s interim rule on environmental impact assessment of tourism in Antarctica, 12 Emory International Law Review 1395 (1998).

214

No t e s

11. See Beattie v. United States, 756 F.2d 91 (DC Cir 1985). 12. See William W. Buzbee, Recognizing the regulatory commons: a theory of regulatory gaps, 89 Iowa Law Review 1 (2003). 13. See Elephants, economics and ivory (Edward B. Barbier, ed.; London: Earthscan Publications, 1990); Michael J. Glennon, Has international law failed the elephant? 84 AJIL 1 (1990). 14. See Roderick P. Neumann, Primitive ideas: protected area buffer zones and the politics of land in Africa, in producing nature and poverty in Africa 220 (Vigdis Broch-Due & Richard A. Schroeder, eds.; Uppsala, Sweden: Nordiska Afrikainstitutet, 2000). 15. See Joseph R. Berger, The African elephant, human economies, and international law: bridging a great rift for East and Southern Africa, 13 GIELR 417 (2001). 16. See Michael Hanlon, Elephant graveyard, The Daily Mail, Apr. 11, 2002; Dean E. Murphy, Ivory stash driving debate, LA Times, Apr. 7, 2000, at A1. 17. Mar. 3, 1973, 993 UNTS 243. 18. See John L. Garrison, The Convention on the International Trade in Endangered Species (CITES) and the debate over sustainable use, 12 Pace Environmental Law Review 301 (1994). 19. See Marla Cone, Environmental officials relax ban on ivory Africa, LA Times, Jun. 20, 1997, at A9; UN body votes to retain ban on ivory trading, The Globe and Mail (Toronto), Jun. 18, 1997, A11. 20. L. Dalton Casto, The dangers of liberal neo-colonialism: elephants, ivory and the cites treaty (Fairfield, CA: African Ways Publishing, 1998). 21. See Donald T. Hornstein, Environmental sustainability and environmental justice at the international level: traces of tension and traces of synergy, 9 Duke Environmental Law and Policy Forum 291 (1999). 22. Medicine Man (Hollywood Pictures, 1992). 23. See Clare Kapp, New UN agency examines patent protection for traditional knowledge, The Lancet, May 12, 2001, at 1510; Gerry Volgenau, Mayan medicine woman, Houston Chronicle, May 19, 2002, Travel section, at 6; Judy Foreman, Drug hunters can’t see rainforest for the medicines, Boston Globe, Mar. 27, 2001, C1. 24. Walter V. Reid, S. A. Laird, R. Gámez-Lobo, A. Sittenfeld-Appel, D. H. Janzen, M. A. Gollin and C. Juma, A new lease on life, in Biodiversity prospecting: using genetic resources for sustainable development 1, 7 (Washington, DC: World Resources Institute, 1993); Charles Clover, Drug companies are told to pay for plant “plundering,” The Daily Telegraph, Apr. 18, 2002, 8. 25. See Noel Simon, Nature in danger 12 (New York: Oxford Univ. Press, 1995); Arnold Newman, Tropical Rainforest 125–34 (New York: Facts on File, 1990). 26. See Francesco Parisi, Norbert Schulz, & Ben dePoorter, Duality in property: commons and anticommons, 25 International Review of Law and Economics 578 (2005); James M. Buchanan & Yong Yoon, Symmetric tragedies, commons and anticommons, 43 Journal of Law and Economics 1 (2000); Michael A. Heller, The tragedy of the anticommons: property in transition from Marx to markets, 111 Harvard Law Review 622 (1998). 27. See Mancur Olson, Jr., The logic of collective action (Cambridge: Harvard Univ. Press, 1971). 28. See Intellectual property and human rights, UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights (Aug. 17, 2000).

No t e s

215

29. Jun. 5, 1992, 31 ILM 818 (1992). 30. See Christopher J. Hunter, Sustainable bioprospecting: using private contracts and international legal principles and policies to conserve raw medicinal materials, 25 Boston College Environmental Affairs Law Review 129 (1997). 31. See Lakshmi Sarma, Biopiracy: twentieth century imperialism in the form of international agreements, 13 Temple International and Comparative Law Journal 107 (1999). 32. Mar. 20, 1883, as last revised Jul. 14, 1967, 828 UNTS 305. 33. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Apr. 15, 1994, WTO Agreement, Annex 1C, Legal instruments—results of the Uruguay Round, 33 ILM 81, 93–97 (1994). 34. See Gelvina Rodriguez Stevenson, Trade secrets: the secret to protecting indigenous ethnobiological (medicinal) knowledge, 32 New York University Journal of International Law and Policy 1119 (2000); Miriam Latorre Quinn, Protection for indigenous knowledge: an international law analysis, 14 Saint Thomas Law Review 287 (2001). 35. See ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, Jun. 27, 1989, 28 ILM 1384 (1989). 36. See The globalization of world politics: an introduction to international relations 541–42 (John Baylis & Steve Smith, eds.; 2d ed.; Oxford: Oxford Univ. Press, 2001). 37. See Law and the Internet: a framework for electronic commerce (Lilian Edwards & Charlotte Waelde, eds.; 2d ed.; Oxford: Hart, 2000). 38. The Schooner Exchange v. McFaddon, 11 U.S. S. Ct. (7 Cranch) 116, 136 (1812). 39. See Jack L. Goldsmith, The Internet and the abiding significance of territorial sovereignty, 5 Indiana Journal of Global Legal Studies 475 (1998); Jack L. Goldsmith, Against cyberanarchy, 65 University of Chicago Law Review 1199 (1998). 40. See Legal aspects of globalization: conflict of laws, Internet, capital markets, and insolvency in a global economy (Jürgen Basedow & Toshiyuki Kono, eds.; The Hague: Kluwer, 2000). 41. These scenarios are modeled on actual disputes. See Yahoo! Inc. v. La Ligue Contre le Racisme et L’Anti-semitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001) (ruling that U.S. court would not recognize French assertion of jurisdiction over an American ISP for carrying neo-Nazi content); Jonathan Zittrain & Benjamin Edelman, Empirical analysis of internet filtering in China, at http:// cyber.law.harvard.edu/filtering/china (last visited Sept. 23, 2007) (analyzing China’s “Computer information network and Internet security, protection and management regulations”). 42. See Regulating the global information society (Christopher T. Marsden, ed.; London: Routledge, 2000). 43. See ICANN, Uniform Domain Name Dispute Resolution Policy (Oct. 24, 1999), at http://www.icann.org/udrp/udrp-policy-24oct99.htm (last visited Sept. 23, 2007).

9

Disciplines

1. See David A. Wirth, International trade agreements: vehicles for regulatory reform? 1997 University of Chicago Legal Forum 331; Rosemary A. Ford, The

216

2.

3. 4. 5. 6.

7. 8. 9. 10. 11.

12. 13.

14. 15.

16. 17. 18. 19. 20.

21.

No t e s beef hormone dispute and carousel sanctions: a roundabout way of forcing compliance with world trade organization sanctions, 27 Brooklyn Journal of International Law 543 (2002). See GATT panel decision—restriction on imports of tuna, 30 ILM 1594 (1991); United States—import prohibition of certain shrimp and shrimp products (WTO App. Oct. 12, 1998), 38 ILM 118, 174 (1999). Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal instruments, 33 ILM 1125, 1153 (1994). See David A. Wirth, European communities restrictions on imports of beef treated with hormones, 92 AJIL 755, 755–56 (1998). See Marsha A. Echols, Food safety and the WTO: the interplay of culture, science and technology 29–40 (London: Kluwer, 2001). See Regine Neugebauer, Fine-tuning WTO jurisprudence and the SPS agreement: Lessons from the Beef Hormone Case, 31 LPIB 1255 (2000); David M. Driesen, What is Free Trade?: The real issue lurking behind the trade and environment debate, 41 VJIL 279 (2001). See Roger W. Miller, This is Codex Alimentarius (1993). See Neugebauer, supra note 6, at 1281–83. See EC measures concerning meat and meat products (hormones), 1998 Westlaw 25520 (WTO App. Jan. 16, 1998). See Jan Bohanes, Risk regulation in WTO law: a procedure-based approach to the precautionary principle, 40 CJTL 323 (2002). WTO appellate body report: European communities—measures affecting asbestos and asbestos-containing products, WT/DS135/AB/R (Mar. 12, 2001), available at http://www.wto.org. See Wirth, supra note 1, at 337–43. See C. Russell H. Shearer, International environmental law and development in developing nations: agenda setting, articulation and institutional participation, 7 Tulane Environmental Law Journal 391 (1994). See, e.g., Jack Fishman & Robert Kalish, Global alert: the ozone pollution crisis (New York: Plenum Press, 1990). See Regulations to control ozone depleting substances: a guidebook (Stockholm: UN Environmental Programme & Stockholm Environment Institute, 2000); Bing Ling, Developing countries and ozone layer protection: issues, principles and implications, 6 Tulane Environmental Law Journal 91 (1992). See Guidebook for the implementation of codes and practice for ozone depleting substances (Nairobi: UN Environmental Programme, 1998). See ODS import/export licensing scheme (Nairobi: UN Environmental Programme (1999). See Joyeeta Gupta, Our simmering planet: what to do about global warming? (New York: Palgrave, 2001). See Jeffrey A. Ferguson, The Kyoto Protocol: the battle over global warming heats up, 8 Journal of Transnational Law and Policy 293 (1999). See Monica S. Mathews, The Kyoto Protocol to the United Nations Framework Convention on Climate Change: survey of its deficiencies and why the United States should not ratify this treaty, 9 Dickinson Journal of Environmental Law and Policy 193 (2000). See Matthew Paterson, Global warming and global politics (London: Routledge, 1996); David G. Victor, The collapse of the Kyoto Protocol and the struggle to slow global warming (Princeton: Princeton Univ. Press, 2001).

No t e s

217

22. See Lance Compa, Labor rights and labor standards in international trade, 25 LPIB 165 (1993); Stephen S. Golub, International labor standards and international trade, IMF Working Paper 97/37 (Washington, DC: International Monetary Fund, Apr. 1997); Robin Cohen, Labour in the age of globalization, in Globalization and insecurity: political, economic and physical challenges 203 (Barbara Harriss-White, ed.; New York: Palgrave, 2002); Peter Waterman, Globalization, social movements and the new internationalisms (London: Mansell, 1998). 23. See Janelle M. Diller & David A. Levy, Child labor, trade and investment: toward the harmonization of international law, 91 AJIL 663 (1997). 24. See David C. Korten, When corporations rule the world 229 (West Hartford, CT: Kumarian Press, 1995). 25. See Golub, supra note 22, at 14–16, 28–29; Trade, employment and labor standards (Paris: Organization for Economic Cooperation and Development, 1996); Virginia K. Leary, Workers’ rights and international trade: the social clause, in 2 Fair trade and harmonization: prerequisites for free trade? (Jagdish N. Bhagwati & Robert E. Hudec, eds.; Cambridge, MA: MIT Press, 1996). 26. See Patrick Grandy & Kathleen Macmillan, Seattle and beyond: the WTO millennium round 129 (Ottawa: Global Economics, 1999). 27. See Philip Alston, “Core labour standards” and the transformation of the international labour rights regime, 15 EJIL 457 (2004). 28. See Korten, supra note 24, at 232. 29. Stephen S. Golub, Are international labor standards needed to prevent social dumping?, Finance and Development (December 1997), at 20, 21. 30. See The globalization reader 173 (Frank Lechner & John E. Boli, eds.; Malden, MA: Blackwell, 2000); Baylis & Smith, supra note 36 (ch. 8), at 589–90. 31. See James Mittelman, The globalization syndrome: transformation and resistance 86–89 (Princeton: Princeton Univ. Press, 2000). 32. See Diller & Levy, supra note 23, at 677–81; Elissa Alben, GATT and the fair wage: a historical perspective on the labor-trade link, 101 Columbia Law Review 1410 (2001); Elisabeth Cappuyns, Linking labor standards and trade sanctions: an analysis of their current relationship, 36 CJTL 659 (1998). 33. See Golub, supra note 29, at 22. 34. Singapore Ministerial Declaration, WTO Doc. WT/MIN(96)/DEC/W (Dec. 13, 1996), rep. 36 ILM 218 (1997). See also Kym Anderson, Environment and labor standards what role for the WTO?, in The WTO as an international organization 231 (Anne O. Krueger, ed.; Chicago, IL: Univ. of Chicago Press, 1998). 35. See Peter Evans, Fighting marginalization with transnational networks: counter-hegemonic globalization, 29(1) Contemporary Sociology 230 (2001). 36. Dec. 10, 1982, 1833 UNTS 397, 21 ILM 1261 (1982). 37. See Alexandra Merle Post, Deep sea mining and the law of the sea (The Hague: Martinus Nijhoff, 1983); Wolfgang Hauser, The legal regime for deep seabed mining under the Law of the Sea Convention (Deventer: Kluwer, 1983). 38. See Bernard H. Oxman, Panel on the Law of Ocean Uses, United States Interests in the Law of the Sea Convention, 88 AJIL 167, 173–74 (1994). 39. See David L. Larson, Deep seabed mining: a definition of the problem, 17 Ocean Development and International Law 271, 278 (1986). 40. See Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, Jul. 28, 1994, UN Doc A/48/950 & GA Res 48/263 (1994).

218

No t e s

41. See Bernard H. Oxman, Panel on the Law of Ocean Uses, The 1994 Agreement on implementation of the seabed provisions of the Convention on the Law of the Sea: The 1994 Agreement and the Convention, 88 AJIL 687 (1994).

10

Crime

1. See The threat from international organized crime and global terrorism, Hearing before the Comm. on International Relations of the U.S. House of Representatives, 105th Cong., 1st Sess. (Oct. 1, 1997) (U.S. GPO Doc. No. Y4.IN816:C865); Combating international crime in Africa, Hearing before the Subcomm. on Africa of the U.S. House of Representatives Comm. On International Relations, 105th Cong., 2d Sess., at 1 (Jul. 15, 1998) (U.S. GPO Doc. No. Y4.IN816:C868). See also Combating transnational crime: concepts, activities and responses (Phil Williams & Dimitri Vlassis, eds.; London: Frank Cass, 2001). 2. See Alison Smale, The dark side of the global economy, NY Times, Aug. 26, 2001, at Week in Review, 3. See also Mittelman, supra note 31 (ch. 9), at 205–18. 3. See Agreement on Mutual Legal Assistance, U.S.-European Union, Jun. 25, 2003, 43 ILM 758 (2004). 4. 23 U.S. S. Ct. (10 Wheat.) 66, 123 (1825). 5. See European Community v. RJR Nabisco, 355 F.3d 123 (2d Cir. 2004); Republic of Honduras v. Philip Morris Companies, Inc., 341 F.3d 1253 (11th Cir. 2003). 6. See Valentine v. United States ex rel. Neidecker, 299 U.S. S. Ct. 5 (1936). 7. See Factor v. Laubenheimer, 290 U.S. S. Ct. 276 (1933). 8. See United States v. Rauscher, 119 U.S. S. Ct. 407 (1886). 9. See Charlton v. Kelly, 229 U.S. S. Ct. 447 (1913). 10. See In re Pavelic [1933–34] Ann. Dig. No. 158 (Turin Ct. App. 1934) (Italy). 11. See United States v. Alvarez-Machain, 504 U.S. S. Ct. 655 (1992). 12. See Combating transnational crime, supra note 1, at 273–315. 13. Dec. 20, 1988, 28 ILM 493 (1989). 14. See US-EU MLAT, supra note 3, art. 4. 15. See International efforts to combat money laundering (W. C. Gilmore, ed.; Cambridge: Grotius, 1991); John Madinger & Sydney A. Zalopany, Money laundering: a guide for criminal investigators (Boca Raton, FL: CRC Press, 1999). 16. See Mittelman, supra note 31 (ch. 9), at 218–21. 17. See UN Conference on Trade and Development [UNCTAD], Illicit payments 75 (New York: United Nations, 2001). 18. See Transparency International, Global Corruption Report (2004); W. Paatii Ofosu-Amaah, Combating corruption: a comparative review of selected legal aspects of state practices and major international initiatives 1–2 (Washington, DC: World Bank, 1999). 19. See Illicit payments, supra note 17, at 7, 19. 20. See ibid. at 75. See also Ndiva Kofele-Kale, International law of responsibility for economic crimes 6–8, 30–31 (The Hague: Kluwer Law International, 1995). 21. Foreign Corrupt Practices Act of 1977, Pub. L. No. 95–213, Tit. I, 91 Stat. 1494 (1) codified at 15 USC §§ 78a, 78m(b), 78dd-1, 78dd-2, 78ff (1994) (amending scattered sections of the Securities Exchange Act of 1934, 15 USC §§ 77a-78kk (1994)), as amended by International Anti-Bribery and Fair Competition Act of 1998, Pub. L. No. 105–366, 112 Stat. 3302.

No t e s

219

22. 15 USC § 78dd-1. 23. See, e.g., W. S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. S. Ct. 400 (1990). 24. See Illicit payments, supra note 17, at 11, 14. 25. See U.S. Department of Commerce, Addressing the challenges of international bribery and fair competition: second annual report to Congress on the OECD antibribery convention, at 72–75 (Jul. 2000). 26. Dec. 18, 1997, S. Treaty Doc. No. 105–43 (1998), 37 ILM 1 (1998). 27. See Illicit payments, supra note 17, at 41–56; Combating corruption, supra note 18, at 68–81. 28. Mar. 29, 1996, 35 ILM 724 (1996). 29. See generally David A. Gantz, Globalizing sanctions against foreign bribery: the emergence of a new international legal consensus, 18 Northwestern Journal of International Law and Business 457 (1998); Peter J. Henning, Public corruption: a comparative analysis of international conventions and United States law, 18 Arizona Journal of International and Comparative Law 793, 795 (2001); Luz Estella Nagle, The challenges of fighting global organized crime in Latin America, 26 FILJ 1649, 1672 (2003). 30. See Africa’s diamonds: precious, perilous too?, Hearing before the Subcomm. On Africa, House Comm. on International Relations, 106th Cong., 2d Sess. 38 (May 9, 2000) (serial no. 106–142) (statement of Mr. Moloi). 31. See Ingrid J. Tamm, Diamonds in peace and war: severing the conflict-diamond connection (Cambridge, MA: World Peace Foundation, 2002). 32. See Africa’s diamonds, supra note 30, at 23 (statement of Chairman Gooch, Global Witness) (Khmer Rouge rebels in Cambodia used sales of timber to finance their operations). 33. See Tamm, supra note 31, at 5–15. See also http://www.globalwitness.org/ campaigns/diamonds (a Web site describing the activities of a leading NGO in this area) (last visited Sept. 23, 2007). 34. UN Security Council Resolution 1173 (1998), at para. 12(b), UN Doc S/RES/ 1173 (Jun. 12, 1998). 35. UN Security Council Resolution 1343 (2001), at preambular para. 2, UN Doc S/RES/1343 (Mar. 7, 2001) (citing an earlier resolution, UN Security Council Resolution 1306 (2000), UN Doc. S/RES/1306 (Jul. 5, 2000)). 36. Ibid. para. 2(c). 37. 50 USC § 1703(b) and ibid. § 1631, respectively. 38. Presidential Executive Order 13194 (Jan. 18, 2001), rep. in 66 Federal Register 7389 (2001). 39. See Lockerbie case (Libya v. U.S./UK), 1992 ICJ 3, 114 (Provisional Measures). 40. See, e.g., Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963, 704 UNTS 219; Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970, 860 UNTS 105; Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971, 974 UNTS 177; Protocol to the Montreal Convention for the Suppression of Unlawful Acts of Violence Serving International Civil Aviation, 1988, 1589 UNTS 474; Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, 1678 UNTS 221. 41. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973, 1035 UNTS 167;

220

42. 43.

44. 45. 46.

No t e s International Convention against the Taking of Hostages, 1979, 1316 UNTS 205; Convention on the Physical Protection of Nuclear Material, 1980, 1456 UNTS 246. Dec. 9, 1999, S. Treaty Doc. No. 106–49, 39 ILM 270 (2000). See International Convention for the Suppression of Terrorist Bombings, GA Res 164, UN GAOR, 52d Sess., UN Doc A/RES/52/164 (Jan. 9, 1998), 37 ILM 249 (1998). 28 USC § 1350. See, e.g., Almog v. Arab Bank, 471 F. Supp.2d 257 (EDNY 2007); Linde v. Arab Bank, 384 F. Supp.2d 571 (EDNY 2005). Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 UNTS 90, 37 ILM 999 (1998) (entered into force Jul. 1, 2002).

11

Culture

1. See The Marquis de Sommerueles, Stewart’s Admiralty Reports 482 (Vice Adm. Ct. Halifax 1815) (UK). 2. See Wojciech Kowalksi, Art treasures and war: a study on the restitution of looted cultural property, pursuant to public international law (London: Institute of Art and Law, 1998). 3. May 14, 1954, 249 UNTS 215. 4. See Gregory M. Mose, The destruction of churches and mosques in BosniaHerzegovina: seeking a rights-based approach to the protection of religious cultural property, 3 Buffalo Journal of International Law 180 (1996). 5. Michael J. Reppas, The deflowering of the Parthenon: a legal and moral analysis of why the “Elgin Marbles” must be returned to Greece, 9 Fordham Intellectual Property, Media and Entertainment Law Journal 911, 925 (1999). 6. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 UNTS 231. 7. See Emily A. Malples, Holocaust art: it isn’t always “finders keepers, losers weepers”: a look at art stolen during the Third Reich, 9 Tulsa Journal of International and Comparative Law 355 (2001). 8. See Norman E. Palmer, The recovery of stolen art 190 (London; Kluwer, 1998). 9. See Legal protection of underwater cultural heritage: national and international perspectives 12, 16 (Sarah Dromgoole, ed.; The Hague: Kluwer, 1999). 10. Press Release, UNESCO, Protecting underwater heritage from treasure hunters (Oct. 29, 2001), available at www.unesco.org/opi/eng/unescopress/2001/ 01-118e.shtml (last visited Sept. 23, 2007). 11. See India River Recovery Co. v. The CHINA, 645 F. Supp. 141, 144 (D. Del. 1986) (“One of the fundamental policies underlying the maritime law of salvage . . . is to return the salvaged items to the stream of commerce.”). 12. Dec. 10, 1982, art. 303, 1833 UNTS 397, 21 ILM 1261 (1982). 13. See David J. Bederman, Congress Enacts Increased Protections for Sunken Military Craft, 100 AJIL 649 (2006). 14. See Columbus-America Discovery Group v. Atlantic Mutual Ins. Co., 56 F.3d 556 (4th Cir. 1995). 15. See also Convention on the Protection of the Underwater Cultural Heritage, Aug. 3, 2001, 41 ILM 40 (2002), available at http://www.unesco.org/culture/

No t e s

16. 17. 18. 19.

20.

21. 22. 23. 24. 25. 26. 27.

28.

29. 30.

31. 32.

33. 34. 35. 36. 37.

221

laws/underwater/html_eng/convention.shtml (last visited May 28, 2007) (treaty not yet in force). See Fernand de Varennes, Language minorities and human rights 101 (The Hague: Martinus Nijhoff, 1996). See James McWhorter, Dying Languages, NY Sun, Dec. 28, 2006, available at http://www.nysun.com/article/45847?page_no=1 (last visited May 28, 2007). See Endangered Languages, available at http://www.nvtc.gov/lotw/months/ november/endangered.html (last visited May 28, 2007). See Lauri Malksoo, Language rights in international law: why the phoenix is still in the ashes, 12 Florida Journal of International Law 431, 440–42 (2000). ILO Convention No. 169, Jun. 27, 1989, 28 ILM 1382 (1989), available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 (last visited Sept. 23, 2007). Ibid. arts. 28(1) & (3). See Malksoo, supra note 19, at 460. See Varennes, supra note 16, at 34–35, 40–42. See ibid. 38–39, 108–12. See ibid. 108–12. See Malksoo, supra note 19, at 454. See Stacy Amity Feld, Language and the globalization of the economic market, the regulation of language as a barrier to free trade, 31 VJTL 153, 166–69 (1998). See Joseph G. Turi, Language and law in the era of globalization, in Which “Global Village”: Societies, Cultures, and Politico-Economic Systems in a EuroAtlantic Perspective 193 (Valeria Gennaro Lerda, ed.; Westport, CT: Praeger, 2002). See Baylis & Smith, supra note 36 (ch. 8), at 459. See William Bradford, “Save the whales” v. Save the makah: finding negotiated solutions to ethnodevelopmental disputes in the New International Economic Order, 13 St. Thomas Law Review 155, 166 (2000). See Erica-Irene A. Daes, Protection of the heritage of indigenous people iii (New York: United Nations, 1997). See Arnold Newman, Tropical rainforest: a world survey of our most valuable and endangered habitat with a blueprint for its survival 146–47 (New York: Facts on File, 1990). See C. Edwin Baker, An economic critique of free trade in media products, 78 North Carolina Law Review 1357, 1364–66 (2000). See Daes, supra note 31, at 11. See William Greider, One world, ready or not: the manic logic of global capitalism 447–48 (New York: Simon & Schuster, 1997). Dec. 16, 1966, art. 27, 999 UNTS 171. See Ominayak v. Canada, UN Doc A.45.40, Annex IX.A, at 27 (1970) (Lubicon Lake Band case); Kasivarsi Reindeer Herders’ Cooperative v. Ministry of Trade and Industry (Sup. Admin. Ct. Finland 1996); Nibutani Dam Jiken Hanketsu (Kayano & Kaizawa v. Government of Japan), Hanrei Jiho, No. 1598, at 33 (Sapporo Dist. Ct. Mar. 27, 1997). See also Benedict Kingsbury, “Indigenous peoples” in international law: a constructivist approach to the Asian controversy, 92 AJIL 414, 437–40 (1998).

222

No t e s

38. UN Doc A/HRC/1/L.10 (2006), at art. 32(3), rep. 34 ILM 541 (1995). 39. See, e.g., Agreement on the Conservation of Polar Bears, Nov. 15, 1973, 27 UST 3918, TIAS 8409 (entered into force May 26, 1976) (parties to the Agreement include Canada, Denmark, Norway, the Soviet Union (now Russia), and the United States); International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 UNTS 72. See also Joel Richard Paul, Cultural resistance to global governance, 22 MJIL 1, 6–72 (2000). 40. See Evan T. Bloom, Establishment of the Arctic Council, 93 AJIL 712, 715–16 (1999). 41. See Fergus MacKay, Universal rights or a universe unto itself? Indigenous peoples’ human rights and the World Bank’s Draft Operational Policy 4.10 on Indigenous Peoples, 17 American University International Law Review 527 (2002). 42. See John Boli & George M. Thomas, INGO’s and the organization of world culture in constricting world culture: international nongovernmental organizations since 1875 13 (John Boli & George M. Thomas eds.; Stanford: Stanford Univ. Press, 1999). 43. See World Bank Inspection Panel, Brazil (Rondônia) natural resources management project (Loan 3444-BR) (Mar. 25, 1997). 44. See John W. Meyer, John Boli, George M. Thomas, & Francisco O. Ramirez, World society and the nation-state, 103 American Journal of Sociology 144 (Jul. 1997). 45. General Agreement on Tariffs and Trade (GATT), Oct. 30, 1947, 61 Stat. A-11, TIAS 1700, 55 UNTS 194. 46. See ibid., art. XX, paras. (a) & (f). 47. Ibid. See also Paul, supra note 39, at 33, 54–55. 48. Directive 89/552, Council directive on the coordination of certain provisions laid down by law, regulation or administrative action in member states concerning the pursuit of television broadcasting activities, 32 Official Journal of the European Commission Art 4 (No. L 298) (1989). 49. See Kirsten L. Kessler, Protecting free trade in audiovisual entertainment: a proposal for counteracting the European Union’s trade barriers to the U.S. entertainment industry’s exports, 28 LPIB 563 (1995); Alan Riding, Filmmakers seek protection from U.S. dominance, NY Times, Feb. 5, 2003, at B3, col. 1. 50. See http://www.incp-ripc.org/ (last visited Jun. 23, 2007). 51. See Paul, supra note 39, at 41. 52. See Baker, supra note 33, at 1365–70, 1406–9. 53. See Kessler, supra note 49, at 306. 54. See Joanne A. Liu, When law and culture clash: female genital mutilation, a traditional practice gaining recognition as a global concern, 11 New York International Law Review 71, 72 (1998). 55. See Female genital mutilation: a guide to laws and policies worldwide 6–8 (Anika Rahman & Nahid Toubia, eds.; New York: Zed Books, 2000). 56. See Religious fundamentalisms and the human rights of women 45–51, 81–87 (Courtney W. Howland, ed.; New York: St. Martin’s Press, 1999); Robert D. Sloane, Outrelativizing relativism: a liberal defense of international human rights, 34 VJTL 527 (2001); Tracey E. Higgins, Anti-essentialism, relativism and human rights, 19 Harvard Women’s Law Journal 89 (1996). 57. See Paul, supra note 39, at 19–23; Rahman & Toubia, supra note 55, at 77; Hope Lewis, Between Irua and “female genital mutilation”: feminist human rights discourse and the cultural divide, 8 Harvard Human Rights Journal 1 (1995).

No t e s

223

58. See Howland, supra note 56, at 55. 59. See Liu, supra note 54, at 80–85.

12

Technology

1. See Manfred Lachs, Thoughts on science, technology and world law, 86 AJIL 673 (1992). 2. See Judy J. Kim, Out of the lab and into the field: harmonization of deliberate release regulations for genetically modified organisms, 16 FILJ 1160 (1993); Gregory N. Mandel, Gaps, inexperience, inconsistencies and overlaps: crisis in the regulation of genetically modified plants and animals, 45 William & Mary Law Review 2167 (2004); Richard A. Repp, Biotech pollution: assessing liability for genetically modified crop production and genetic drift, 36 Idaho Law Review 585 (2000). 3. See Sean Murphy, Biotechnology and international law, 42 HILJ 47 (2001); Anders Nordgren, Responsible genetics: the moral responsibility of geneticists for the consequences of human genetics research 114–26 (Dordrecht & Boston, MA: Kluwer Academic Publishers, 2001); J. M. Spectar, The fruit of the human genome tree: cautionary tales about technology, investment, and the heritage of humankind, 23 Loyola of Los Angeles International and Comparative Law Review 1, 9–14 (2001); The commercialization of genetic research: ethical, legal, and policy issues 57–77 (Timothy A. Caulfield & Bryn Williams-Jones, eds.; New York: Kluwer Academic/Plenum Publishers, 1999). 4. See Sabrina Safrin, Hyperownership in a time of biotechnological promise: the international conflict to control the building blocks of Life, 98 AJIL 641, 641 (2004). 5. See Repp, supra note 2, at 591–95. 6. See 3 RIAA 1965. 7. 1949 ICJ 4 (UK v. Alb.). 8. Jan. 29, 2000, rep. 39 ILM 1027 (2000). 9. See David J. Schnier, Genetically modified organisms and the Cartagena Protocol, 12 Fordham Environmental Law Journal 377 (2001); Elizabeth Duall, A liability and redress regime for genetically modified organisms under the Cartagena Protocol, 36 GWILR 173 (2004). 10. See Council Directive No. 90/220, 1990 Official Journal of the European Commission (L 169), at 12. See also Kim, supra note 2, at 1190–94. 11. See Murphy, supra note 3, at 51–52. 12. See Melissa K. Cantrell, International response to Dolly: will scientific freedom get sheared, 13 Journal of Law and Health 69 (1998–1999). 13. See Nordgren, supra note 3, at 157–59; Gerard Magill, The ethics weave in human genomics, embryonic stem cell research, and therapeutic cloning: promoting and protecting society’s interests, 65 Albany Law Review 701, 702, 717–18 (2002). 14. See Cantrell, supra note 12, at 91–94. 15. See Andrea Wang, Regulating human cloning within an environmental human rights framework, 12 Colorado Journal of International Environmental Law and Policy 165 (2001). 16. Erin P. George, The Stem Cell debate: the legal, political and ethical issues surrounding federal funding of scientific research on human embryos, 12 Albany Law Journal of Science and Technology 747 (2002).

224

No t e s

17. See Adam Greene, The world after Dolly: international regulation of human cloning, 33 GWILR 341, 348–55 (2001). 18. See David P. Fidler, Public health and national security in the global age: infectious diseases, bioterrorism, and realpolitik, 35 GWILR 787 (2003); David P. Fidler., Bioterrorism, public health and international law, 3 CJIL 7 (2002); David P. Fidler, Constitutional outlines of public health’s “New World Order,” 77 Temple Law Review 247 (2004); Barry Kellman, An international criminal law approach to bioterrorism, 25 Harvard Journal of Law and Public Policy 721 (2002). 19. See Space benefits for humanity in the twenty-first century: a compilation of contributed papers for the UNISPACE III background papers: Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space 273, 281–82 (New York: United Nations, 1999); Lee Berger, Proposed legal structure for the Silksat satellite consortium: a regional intergovernmental organization to improve telecommunications infrastructure in Central Asia and the trans-Caucus region, 33 LPIB 99, 109–28 (2001). 20. See The age of space commercialization: the proceedings of a preparatory UNISPACE III seminar held 29 January–1 February 1998 in Alpbach, Austria 6–7 (New York: United Nations, 1999). 21. See Space benefits, supra note 19, at 274–76; Andrew J. Young, Law and policy in the space stations’ era 102 (Dordrecht: Martinus Nijhoff, 1989). 22. See Lucius Caflisch, The United Nations and international space law, in The United Nations at work (Martin Ira Glassner, ed.; Westport, CT: Praeger, 1998); I. H. Philepina Diederiks-Verschoor, An introduction to space law 72–86 (2d rev. ed.; The Hague: Kluwer Law International, 1999). 23. See UN Doc A/AC.105/647 (1996). 24. See Caflisch & Glassner, supra note 22, at 46–56, 151–57, 256–66, 399–401; Diederiks, supra note 22, at 21–22; Susan Cahill, Give me my space: implications for permitting national appropriation of the geostationary orbit, 19 Wisconsin International Law Journal 231 (2001); Leo B. Malagar & Marlo Apalisok Magdoza-Malagar, International law of outer space and the protection of intellectual property rights, 17 Boston University International Law Journal 311, 346–48 (1999). 25. See Ricky J. Lee, Reconciling international space law with the commercial realities of the twenty-first century, 4 Singapore Journal of International and Comparative Law 194, 242–48 (2000). 26. See David Tan, Towards a new regime for the protection of outer space as the “province of all mankind,” 25 YJIL 145 (2000). 27. See Caflisch & Glassner, supra note 22, at 73–101. 28. Mar. 29, 1972, 24 UST 2389, 961 UNTS 187. 29. See Space benefits, supra note 19, at 13; Diederiks, supra note 22, at 130–37; Tan, supra note 26, at 149–52, 167–70. 30. See Caflisch & Glassner, supra note 22, at 73–101. 31. See Evan R. Seamone, The duty to “expect the unexpected”: mitigating extreme natural threats to the global commons such as asteroid and comet impacts with the earth, 41 CJTL 735 (2003); ibid., The precautionary principle as the law of planetary defense: achieving the mandate to defend the earth against asteroid and comet impacts while there is still time, 17 GIELR 1 (2004). 32. John D. Woodward, Biometric scanning, law and policy: identifying the concerns—drafting the biometric blueprint, 59 University of Pittsburgh Law Review 97, 102–7 (1997).

No t e s

225

33. See ibid. at 115–34. 34. See Directive on the Privacy of Personal Data, No. 94/46/EC (Oct. 24, 1995; entered into force on Oct. 25, 1998). 35. See Julia M. Fromholz, Annual review of law and technology: VI. The European Union Data Privacy Directive, 15 Berkeley Technology Law Journal 461 (2000). 36. Wayne Madsen, David L. Sobel, Marc Rotenberg, & David Banisar, Cryptography and liberty: an international surbey of encryption policy, 16 John Marshall Journal of Computer & Information Law 475 (1998). 37. Ellen Alderman & Caroline Kennedy, The right to privacy 326 (New York: Knopf, 1995).

13

Diversity

1. See, e.g., Philip Bobbitt, The shield of Achilles: war, peace and the course of history (New York: Knopf, 2002); Lowell Bryan & Diana Farrell, Market unbound (London: John Wiley & Sons, 1996); Kenichi Ohmae, The end of the nationstate (New York: The Free Press, 1995); Jeremy A. Rabkin, Why sovereignty matters 34 (Washington, DC: AEI Press, 1998); Saskia Sassen, Losing control? Sovereignty in an age of globalization (New York: Columbia Univ. Press, 1996); Oscar Schachter, The decline of the nation-state and its implications for international law, 35 CJTL 7 (1997). 2. See, e.g., Customs regime between Germany and Austria, 1931 PCIJ (Ser. A/B; No. 41), at 12 (at issue is “the continued existence of Austria within her present frontiers as a separate State with sole right of decision in all matters economic, political, financial or other. . . .”). 3. Robert J. Holton, Globalization and the nation-state 80–85 (New York: St. Martins Press, 1998); Global transformations 37–38 (David Held, Anthony McGrew, David Goldblatt, & Jonathan Perraton, eds.; Stanford: Stanford Univ. Press, 1999). 4. See Vincent Cable, Globalization and global governance (London: Royal Institute of International Affairs, 1999); Kanishka Jayasuriya, Globalization, law and the transformation of sovereignty: the emergence of global regulatory governance, 6 Indiana Journal of Global Legal Studies 425, 444 (1999); Raimo Väyrynen, Globalization and global governance (London: Rowman & Littlefield, 1999); Edith Brown Weiss, The rise or fall of international law?, 69 Fordham Law Review 345, 356 (2000). 5. See Bobbitt, supra note 1; Don Slater & Fran Tonkiss, Market society 92–116 (Cambridge: Polity Press, 2001). 6. See Kwame Anthony Appiah, Cosmopolitan patriots, in Cosmopolitcs: thinking and feeling beyond the nation 91 (Pheng Cheah & Bruce Robbins, eds.; Minneapolis: Univ. of Minnesota Press, 1998); Charles Beitz, Cosmopolitan liberalism and the state system, in Political restructuring in Europe (Chris Brown, ed.; London: Routledge, 1993); April Carter, The political theory of global citizenship 79–85 (London: Routledge, 2001); David Held, Cosmopolitan democracy 96–120 (Cambridge: Polity Press, 1995); David Miller, On nationality (Oxford: Clarendon Press, 1995); Martha C. Nussbaum, Patriotism and cosmopolitanism, in For love of country: debating the limits of patriotism 9 (Joshua Cohen, ed.; Boston, MA: Beacon Press, 1996); Aihwa Ong, Flexible citizenship: the cultural logics of transnationality 6 (Durham, NC: Duke Univ. Press, 1999).

226

No t e s

7. See Jens Bartelson, A genealogy of sovereignty (Cambridge: Cambridge Univ. Press, 1995); Susan Strange, The retreat of the state: the diffusion of power in the world economy (Cambridge: Cambridge Univ. Press, 1996). 8. See Charles Beitz, Political theory and international relations 65–123 (Princeton: Princeton Univ. Press, 1979); Ronald A. Brand, Sovereignty: the state, the individual, and the international legal system in the twenty-first century, 25 Hastings International and Comparative Law Review 279 (2002); ibid., External sovereignty and international law, 18 FILJ 1685 (1995); Jayasuriya, supra note 4, at 427–37. 9. See Paul Schiff Berman, From international law to law and globalization, 43 CJTL 485, 497 (2005); Jayasuriya, supra note 4, at 437–46. 10. See Brigitte Stern, How to regulate globalization, in the role of law in international politics: essays in international relations and international law 246, 248 (Oxford: Oxford Univ. Press, 2000); United Nations, Human development report 2004 (Oxford: Oxford Univ. Press, 2005); World Bank, World development report 2004 (Oxford: Oxford Univ. Press, 2005). 11. See Global capitalism (Will Hutton & Anthony Giddens, eds.; New York: Free Press, 2000); Robert Gilpin, Global political economy (Princeton: Princeton Univ. Press, 2001); Holton, supra note 3, at 54–67; Ankie Hoogvelt, Globalization and the postcolonial world (2d ed., Baltimore, MD: Johns Hopkins Univ. Press, 2001); Edward Luttwak, Turbo-Capitalism (New York: Harper Collins, 1999). 12. See Laura A. Dickinson, Government for hire: privatizing foreign affairs and the problem of accountability under international law, 47 William & Mary Law Review 135 (2005); Laura A. Dickinson, Public law values in a privatized world, 31 YJIL 383 (2006); Saskia Sassen, The state and globalization: denationalized participation, 25 MJIL 1141, 1150–58 (2004); P. W. Singer, War, profits, and the vacuum of law: privatized military firms and international law, 42 CJTL 521 (2004). 13. See Jenness Duke, Enforcement of human rights on multi-national corporations, 28 Denver Journal of International Law and Policy 339, 343, 346–51 (2000); Jordan Paust, Human rights responsibilities of private corporations, 35 VJTL 801 (2002). 14. 28 USC § 1350. See also Doe I v. Unocal, 395 F.3d 932 (9th Cir. 2002) rehearing en banc granted, 395 F.3d 978 (9th Cir. 2003); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 168–69 (5th Cir. 1999). 15. See Barbara A. Frey, The legal and ethical responsibilities of transnational corporations, 6 Minnesota Journal of Global Trade 153, 154–56 (1997). 16. See Karsten Nowrot, Legal consequences of globalization: the state of nongovernmental organizations under international law, 6 Indiana Journal of Global Legal Studies 579, 581–89 (1999). 17. See Berman, supra note 9, at 546–49; Julie Mertus, From legal transplants to transformative justice, 14 American University International Law Review 1335, 1342 (1995); Nowrot, supra note 16, at 586–601. 18. See Berman, supra note 9, at 500–507; Scot C. Fulton & Lawrence I. Sperling, The network of environmental enforcement and compliance cooperation in North America and the Western Hemisphere, 30 International Lawyer 111 (1996); Jayasuriya, supra note 4, at 446–53; Kal Raustiala, The architecture of international cooperation: transgovernmental networks and the future of international law, 43 VJIL 1 (2002); Anne-Marie Slaughter, A new world order

No t e s

19.

20. 21. 22. 23.

24. 25. 26.

227

(Princeton: Princeton Univ. Press, 2004); Anne-Marie Slaughter, Judicial globalization, 40 VJIL 1103 (2000); Anne-Marie Slaughter, A Global community of courts, 44 HILJ 191 (2003); David Zaring, International law by other means: the twilight existence of international financial regulatory organizations, 33 Texas International Law Journal 281 (1998). See Oscar Schachter, The invisible college of international law, 72 Northwestern Law Review 217 (1977); Peter Spiro, Globalization, international law and the academy, 32 NYUJILP 567, 570–72 (2000). See Arend, supra note 13 (ch. 2), at 171–85; Jörg Friedrichs, The meaning of new medievalism, 7 European Journal of International Relations 475 (2001). See Jack L. Goldsmith & Eric A. Posner, The limits of international law (Oxford: Oxford Univ. Press, 2005). See Japan Line, Ltd. v. County of Los Angeles, 441 U.S. S. Ct. 434, 449 (1979). See Robert A. Schapiro, Toward a theory of interactive federalism, 91 Iowa Law Review 243 (2005); ibid., Polyphonic federalism: state constitutions in the federal courts, 87 California Law Review 1409 (1999). See Sassen, supra note 12, at 1144–47. See Stern, supra note 10, at 264. See ibid., 265.

14

Permeability

1. See Saskia Sassen, Regulating immigration in the global age: a new policy landscape, 570(1) Annals of the American Academy of Political and Social Science 65, 66–69 (2000). 2. See ibid., 70–71. 3. See Rainer Bauböck, Blurred boundaries: migration, ethnicity, citizenship 228–34 (Aldershort, UK: Ashgate, 1998). 4. See Ronald A. Brand, Fundamentals of international business transactions 8–17 (Boston, MA: Kluwer International, 2000). 5. See Paul Lagarde, Approach critique de la lex mercatoria, in Mélanges Goldman: Le droit des relations économiques internationales 125 (Paris: LITEC, 1982). 6. See Philippe Kahn, Droit international économiques, droit du dévelopment, lex mercatoria: concept unique pluralisme d’ordres juridiques, in ibid. 99. See also New York Convention on the Enforcement of International Arbitral Awards, Jun. 10, 1958, 330 UNTS 3. See also Harold J. Berman, The law of international commercial transactions (lex mercatoria), 2 Emory Journal of International Dispute Resolution 235, 237 (1988); Nathan Oman, Corporations and autonomy theories of contract: a critique of the new lex mercatoria, 83 Denver University Law Review 101 (2005); Ole Lando, The lex mercatoria in international commercial arbitration, 34 ICLQ 747 (1985). 7. See Jonathan Fried, Globalization and international law—some thoughts for states and citizens, 23 Queen’s Law Journal 259 (1997); Robert Wai, Transnational liftoff and juridical touchdown: the regulatory function of private international law in an era of globalization, 40 CJTL 209 (2002). 8. See Foley Bros., Inc. v. Filardo, 336 U.S. S. Ct. 281 (1949); Lauritzen v. Larsen, 345 U.S. S. Ct. 571 (1953); Smith v. United States, 507 U.S. S. Ct. 197 (1993). 9. 148 F.2d 416 (2d Cir. 1945). 10. 15 USC § 1.

228

No t e s

11. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. S. Ct. 690 (1962). 12. See Re Wood Pulp Cartel: A. Ahlstrom Osakeyhtio v. E. C. Commission, [1988] 4 Common Market Law Review 901; Re The LdPE Cartel: The Community v. Atochem SA, [1990] 4 ibid. 382. 13. See 22 USC §§ 6021–6091; Iran-Libya Sanctions Act of 1996, Pub. L. No. 104–73. 14. See Stern, supra note 10 (ch. 13), at 255–61; Alexander Layton & Angharad M. Parry, Extraterritorial jurisdiction—European responses, 26 Houston Journal of International Law 309 (2004). 15. See EEOC v. Arabian American Oil Co., 499 U.S. S. Ct. 244 (1991). 16. See Brigitte Stern, Can the United States set rules for the world? A French view, 31 Journal of World Trade Law 5, 21–23 (1998). 17. For prominent exceptions, see Weinberger, 1981 GAOR 36th Sess., Supp. 40, at 114; Mauritian Women, ibid. at 134; Lovelace, ibid. at 166; Toonen, Communication No. 488/1992, UN Doc CCPR/C/50/D/488 (1994). See also Alex Conte, Defining civil and political rights: the jurisprudence of the United Nations Human Rights Committee (Aldershot, UK: Ashgate, 2004). 18. See Steven C. Greer, The European Convention on Human Rights: achievements, problems and prospects (Cambridge: Cambridge Univ. Press, 2006); Vincent Berger, Jurisprudence de la Cour européenne des droits de l’homme (8th ed.; Paris: Sirey, 2002); Joseph Weiler, The jurisprudence of human rights in the European Union: integration and disintegration, values and processes (Cambridge, MA: Harvard Law School, 1996); Theory and practice of the European Convention on Human Rights (Peter van Dijk & Yutaka Arai, eds.; 4th ed.; Antwerp, Belgium: Intersentia, 2006). 19. See George H. Aldrich, The jurisprudence of the Iran-United States Claims Tribunal (New York: Oxford Univ. Press, 1996). 20. See AGIP v. Popular Republic of the Congo, 21 ILM 726 (1982) (ICSID 1979); Benvenuti et Bonfant v. People’s Republic of the Congo, 21 ibid. 740 (ICSID 1982); AMCO Asia Corp. v. Republic of Indonesia, 25 ibid. 1439 (1986) (ICSID 1986). 21. See Mondev Int’l Ltd. v. United States, 6 ICSID Reports (World Bank) 181 (NAFTA Ch. 11 Arb. Trib. 2002); Loewen Group, Inc. v. United States, 7 ibid. 421, 464 (NAFTA Ch. 11 Arb. Trib. 2003). 22. See Robert B. Ahdieh, Between dialogue and decree: international review of national courts, 79 New York University Law Review 2029 (2004); Charles N. Brower & Lee A. Steven, Who then should judge?: Developing the international rule of law under NAFTA Chapter 11, 2 CJIL 193 (2001); Henry Paul Moaghan, Article III and Supranational Judicial Review, 107 Columbia Law Review 833 (2007). 23. See Anthony Arnull, The European Union and its Court of Justice (2d ed.; New York: Oxford Univ. Press, 2006); K. P. E. Lasok, Judicial control in the EU: procedures and principles (Richmond, UK: Richmond Law & Tax, 2004); Karen J. Alter, Establishing the supremacy of European Law: the making of an international rule of law in Europe (New York: Oxford Univ. Press, 2001). 24. See Rosalyn Higgins, The ICJ, the ECJ, and the integrity of international law, 52 ICLQ 1, 17–20 (2003). 25. See David Kennedy, New world order: yesterday, today and tomorrow, 4 Transnational Law and Contemporary Problems 329, 371–73 (1994); Robert E.

No t e s

229

Scott & Paul B. Stephan, Self-enforcing international agreements and the limits of coercion, 2004 Wisconsin Law Review 551; Joel Trachtman, Externalities and extraterritoriality: the law and economics of prescriptive jurisdiction, in Economic dimensions in international law: comparative and empirical perspectives 642 (Jagdeep S. Bhandari & Alan D. Sykes, eds.; Cambridge: Cambridge Univ. Press, 1997). 26. See International regulatory competition and coordination (William W. Bratton, ed.; New York: Oxford Univ. Press, 1996); Wai, supra note 7, at 250–58.

15

Legitimacy

1. See Benedict Kingsbury, Nico Krisch, & Richard B. Stewart, the emergence of global administrative law, 68 Law and Contemporary Problems 15, 44–59 (2005); Kalypso Nicolaides & Gregory Shaffer, Transnational mutual recognition regimes: governance without global government, 67 Law and Contemporary Problems 263, 298–310 (2005); Paul Wapner, The democratic accountability of non governmental organizations, 3 CJIL 155, 157 (2002). 2. See Thomas M. Franck, Why a quest for legitimacy?, 21 University of California Davis Law Review 535 (1987); ibid., Legitimacy in the international system, 82 AJIL 705 (1988); John Jackson, Sovereignty-Modern: a new approach to an outdated concept, 97 AJIL 782 (2003); Mattias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, 15 EJIL 907, 909–17 (2004). 3. See Gregory H. Fox & Brad R. Roth, Introduction: the spread of liberal democracy and its implications for international law, in Democratic governance and international law 1, 1–4 (Gregory H. Fox & Brad R. Roth, eds.; Cambridge: Cambridge Univ. Press, 2000); Kingsbury, supra note 1, at 48–51. 4. See Roland Axtmann, Liberal democracy into the twenty-first century 131–34 (Manchester: Manchester Univ. Press, 1996); Foundations and perspectives on international trade law 91 (Ian Fletcher, Loukas Mistelis and Marise Cremona, eds.; London: Sweet & Maxwell, 2001); Mertus, supra note 17 (ch. 13), at 1352. 5. Joshua Cohen & Charles F. Sabel, Global democracy?, 37 NYUJILP 763, 763–84 (2005); Laurence R. Helfer, Constitutional analogies in the international legal system, 37 Loyola of Los Angeles Law Review 193 (2003). 6. See Baylis & Smith, supra note 36 (ch. 8), at 359–62; Weiss, supra note 4 (ch. 13), at 357–58. 7. See John J. Mearsheimer, The false promise of international institutions, 19 International Security 5 (Winter 1994). 8. See Fletcher, supra note 4, at 92–94; Brett Frischmann, A dynamic institutional theory of international law, 51 Buffalo Law Review 679, 750–87 (2003). 9. See The European Union, World Trade Organization and the NAFTA: towards a common law of international trade 37–69 (J. H. H. Weiler, ed.; Oxford: Oxford Univ. Press, 2000). 10. See Jonathan A. Fox, The struggle for accountability: the World Bank, NGOs, and grassroots movements (Cambridge, MA: MIT Press, 1998); Ngaire Woods & Amrita Narliker, Governance and the limits of accountability: the WTO, IMF, and the World Bank, 53 International Social Science Journal 569 (2001); Devesh Kapur, Expansive agendas and weak instruments: governance related conditionalities of the international financial institutions, 4 Journal of Policy

230

11.

12.

13. 14. 15. 16. 17. 18.

19. 20. 21. 22.

23. 24.

No t e s Reform 207 (2001); Robert O. Keohane, Global governance and democratic accountability, in taming globalization: frontiers of governance 130 (David Held & Mathias Koenig-Arhibugi, eds.; Cambridge, MA; Polity Press, 2003). See Theory and practice of the European Convention, supra note 18 (ch. 14), at 1–46, 161–80; A. W. Bradley, The United Kingdom, the European Court of Human Rights, and constitutional review, 17 Cardozo Law Review 233 (1995); Anne-Marie Burley & Walter Mattli, Europe before the court: a political theory of legal integration, 47 International Organization 41 (Winter 1993); Alec Stone Sweet & Thomas L. Brunell, Constructing a supranational constitution: dispute resolution and governance in the European Community, 92 American Political Science Review 63 (Mar. 1998). See Mark Pallis, The operation of UNHCR’s accountability mechanisms, 37 NYUJILP 869 (2005); Paul Weis, The international protection of refugees, 48 AJIL 193 (1954); Ralph Wilde, Quis Custodiet Ipsos Custodes?: Why and how UNHCR governance of “development” refugee camps should be subject to international human rights law, 1 Yale Hum. Rights and Development Law Journal 107 (1998). See Wapner, supra note 1, at 157; Weiss, supra note 4 (ch. 13), at 357–58. See Mertus, supra note 17 (ch. 13), at 1353–54, 1373–75. See Wapner, supra note 1, at 155–59. See Peter J. Spiro, Accounting for NGOs, 3 CJIL 161 (2002). See Leroy Bennett, International organizations: principles and issues 440–45 (6th ed.; Englewood Cliffs, NJ: Prentice Hall, 1995). European Convention Treaty, Jul. 18, 2003, art. 5(2), available at http:// european-convention.eu.int/docs/Treaty/cv00850.en03.pdf (last visited Sept. 23, 2007). See Kumm, supra note 2, at 920–24. See Jayasuriya, supra note 4 (ch. 13), at 444–47. See Fried, supra note 7 (ch. 14), at 269. See Curtis A. Bradley, International delegations, the structural constitution, and non-self-execution, 55 Stanford Law Review 155 (2003); Edward T. Swaine, The constitutionality of international delegations, 104 Columbia Law Review 1492 (2004). See Holton, supra note 3 (ch. 13), at 115–16. See Nowrot, supra note 16 (ch. 13), at 637–39.

16 1. 2. 3. 4.

Exceptionalism

See Axtmann, supra note 4 (ch. 15), at 129. See World Bank, World development report 1999/2000. See United Nations, Human development report (2001). See Ron Duncan, Conference on International Trade Education and Research, Globalization and Income Inequality: an international perspective, available at www.apec.org.au/docs/duncan.PDF (2001) (last visited Sept. 23, 2007); Andres Solimano, The evolution of income inequality: assessing the impact of globalization (Santiago, Chile: United Nations Economic Commission for Latin America and the Caribbean, 2001); Manfred B. Steger, Globalism (London: Rowman & Littlefield, 2002). 5. See Duncan, supra note 4. 6. See Thomas Frank, One market under god (New York: Doubleday, 2000).

No t e s

231

7. Steger, supra note 2 (prelims), at 114. 8. See ibid. at 113–15. 9. See Anghie, supra note 22 (ch. 1); Keith Aoki, Space invaders: critical geography, the “third world” in international law and critical race theory, 45 Villanova Law Review 913 (2000); Hilary Charlesworth & Christine Chinkin, The boundaries of international law: a feminist analysis (Manchester: Manchester Univ. Press, 2000); Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist approaches to international law, 85 AJIL 613 (1991); Ruth Gordon, Critical race theory and international law: convergence and divergence, 45 Villanova Law Review 827, 838–39 (2000); Chantal Thomas, Critical race theory and postcolonial development theory, 45 Villanova Law Review 1195 (2000). 10. See Axtmann, supra note 4 (ch. 15), at 91–106. 11. See Pierre Bourdieu, Acts of resistance: against the new myths of our time (Richard Nice, trans.; Cambridge: Polity Press, 1998); Five days that shook the world (Alexander Cockburn, Jeffrey St. Clair & Allan Sekula, eds.; London: Verso Press, 2000); Mark Rupert, Ideologies of globalization (London: Routledge, 2000); Jeffrey J. Scott, The WTO after Seattle (Washington, DC: Institute for International Economics, 2000). 12. See Marco Verweij, Why the River Rhine is cleaner than the Great Lakes, 34 Law and Society Review 1007, 1029–30 (2000). 13. See Siobhán McEvoy-Levy, American exceptionalism and U.S. Foreign Policy: public diplomacy at the end of the cold war 61, 85, 136 (New York: Palgrave, 2001). 14. See Johan D. Van der Vyver, American exceptionalism: human rights, international criminal justice, and national self-righteousness, 50 Emory Law Journal 775 (2001). 15. Apr. 24, 1963, 21 UST 77, 596 UNTS 261. 16. See Vienna Convention on Consular Relations (Para. v. U.S.), 1998 ICJ 246 (Apr. 9); LaGrand (Ger. v. U.S.), 2001 ICJ 466 (Jun. 27); Case concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 ICJ 128 (Mar. 31). 17. See William J. Aceves, The Vienna Convention on Consular Relations: a study of rights, wrongs, and remedies, 31 VJTL 257, 270–71 (1998); Henry Richardson, III, The execution of Angel Breard in the United States: violating an order of the International Court of Justice, 12 Temple International & Comparative Law Journal 121, 124–25 (1998); Jordan J. Paust, Breard and treaty-based rights under the Consular Convention, 92 AJIL 691, 693 (1998). 18. For a sampling of critical literature, see William K. Lietzau, International criminal law after Rome: concerns from a U.S. Military perspective, 64 Law and Contemporary Problems 119 (2001); John Washburn, Assessments of the United States position: The International Criminal Court Arrives—the U.S. position: status and prospects, 25 FILJ 873 (2002); Alfred P. Rubin, The United States and the International Criminal Court: possibilities for prosecutorial abuse, 64 Law and Contemporary Problems 153 (2001); John R. Bolton, The Risks and the weaknesses of the International Criminal Court from America’s perspective, 41 VJIL 186 (2000).

Conclusion 1. See Thomas M. Franck, The power of legitimacy among nations (New York: Oxford Univ. Press, 1990). See also William P. George, Looking for a global

232

2. 3.

4.

5.

6.

7.

8. 9. 10.

11. 12.

13. 14. 15. 16. 17. 18.

No t e s ethic? Try International Law, in Religion and international law 495 (Mark W. Janis & Carolyn Evans, eds.; The Hague: Martinus Nijhoff, 1999). See Richard Tuck, On the rights of war and peace (Oxford: Oxford Univ. Press, 1999). See Immanuel Kant, To perpetual peace: a philosophical sketch (1795), in Perpetual peace and other essays 107 (Ted Humphrey, trans., Indianapolis, IN: Hackett Publishing, 1983); Fernando Tesón, The Kantian theory of international law, 92 Columbia Law Review 53 (1992). See Charles de Visscher, Theory and reality in public international law (P. E. Corbett, trans., rev. ed.; Princeton: Princeton Univ. Press, 1968); Oscar Schachter, International law in theory and practice (Dordrecht: Martinus Nijhoff, 1991); Rosalyn Higgins, Problems and process: international law and how we use it (Oxford: Oxford Univ. Press, 1994); Louis Henkin, International law: politics and values (Dordrecht: Martinus Nijhoff, 1995). (UK v. Alb.), 1949 ICJ 4, 35. See International Law Commission, Draft declaration of the rights and duties of states, 1949 YB Int’l L Comm’n 286; UN General Assembly declaration on principles of international law concerning friendly relations and cooperation among states, UN G.A Res 2623 (XXV) (1970), rep. 9 ILM 1292 (1970). See Thomas M. Franck, Fairness in international law and institutions (Oxford: Oxford Univ. Press, 1995). See also Alex Y. Seita, Globalization and the convergence of values, 30 Cornell International Law Journal 429 (1997). See Edwin De Witt Dickinson, The equality of states in international law (Cambridge, MA: Harvard Univ. Press, 1920); Richard Falk, Re-framing the legal agenda of world order in the course of a turbulent century, 9 Transnat’l L. & Contemp. Problems 451 (1999); P. H. Kooijmans, The doctrine of the legal equality of states: an inquiry into the foundations of international law (Leiden, Holland: Sijthoff, 1964); Robert A. Klein, Sovereign equality among states: the history of an idea (Toronto, Canada: Univ. of Toronto Press, 1974). See [1958] 2 YB Int’l L Comm’n 105; [1961] 2 YB Int’l L Comm’n 128. Genocide Convention opinion, 1951 ICJ 15, 23. See Jerzy Makarczyk, Principles of a new international economic order: a study of international law in the making (Dordrecht: Martinus Nijhoff, 1988); Lea Brilmayer, International Justice and International Law, 98 West Virginia Law Review 611 (1996). See Kemal Baslar, The concept of the common heritage of mankind in international law (The Hague: Martinus Nijhoff, 1998). See Edith Brown Weiss, In fairness to future generations: international law, common patrimony and intergenerational equity (Ardsley-on-Hudson, NY: Transnational Publishers, 1989). See Judith Gail Gardam, Proportionality and force in international law, 87 AJIL 391 (1993). 1999 UNTS 171. 1949 ICJ 4 (UK v. Alb.). ILC draft declaration on rights and duties of states, supra note 5, Art. 1; Declaration on principles of international law, supra note 5. See Burleigh Cushing Rodick, The doctrine of necessity in international law (New York: Columbia Univ. Press, 1928). See Manfred Lachs, Science, technology and world law, 86 AJIL 673 (1992).

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233

19. See John Rawls, A theory of justice 127–30 (Cambridge: Cambridge Univ. Press 1971). See also Franck, supra note 6, at 27–40. 20. See Jack L. Goldsmith & Eric A. Posner, A theory of customary international law, 66 University of Chicago Law Review 1113 (1999). 21. See, e.g., Jeffrey L. Dunoff & Joel P. Trachtman, Economic analysis of international law, 24 YJIL 1 (1999). 22. See Bull, supra note 1 (ch. 1), at 13.

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I n de x

aer claussum, 56, 59 African elephants, 75–78 age of exploration, 7, 10, 12, 21, 27, 29, 35, 43, 151, 183 AIDS, 68–69, 80 air transport, regulation of, 55–60 Alcoa, 162–163 Alexander The Great, 5 Alien Tort Claims Act (ACTA), 116–117, 152 al-Megrahi, Abdelbasset Ali Ahmed, 115–116 American Revolution, 33 Anarchical Society, The (Bull), 3 Antarctic Treaty, 72 Antarctica ASOC and, 73–74, 178 ATCPs and, 72–76 CR AMR A and, 73–74, 101 ecotourism and, 71–75 hotels in, 75, 83 NGOs and, 178 UN and, 134 Arctic Council, 126 Arthashastra (Kautilya), 19 ASEAN. see Association of Southeast Asian Nations Asian economic crisis, 63–66 Asquith, Lord, 48 Association of Southeast Asian Nations (ASEAN), 156 Asylum Case, 49–50 ATCA. see Alien Tort Claims Act Austin, John, 50 avian flu, 68

Beef Hormone decision, 90–91 belief, 11–17. see also natural law formation of international law and, 14–16 international obligation and, 15–16 mare liberum and, 13–14 social contract theories, 14–15 Berman, Harold J., 50, 51 Bernadotte, Folke, 39 Bilateral Investment Treaties (BITs), 33–34 Biodiversity Convention, 62, 80–81 biological pollution, exotic species and, 60–63 biometrics, 140–141 biopharming, 134–135 bioterrorism, 136–137 BIS. see Bank for International Settlements Black Death, 21, 43, 67. see also bubonic plague Blackstone, William, 30 blood diamonds, 111–115. see also Kimberley Process; World Diamond Council (WDC) Bolshevik Revolution, 44, 191 Bonn Convention on Migratory Species, 62 Brezhnev Doctrine, 16 Bribery Convention, 110 British East India Company, 7, 30, 151 bubonic plague, 44, 67, 137. see also Black Death Bull, Hedley, 1, 200 Bush, George W., 114, 117, 187, 188

ballast water, 60–62, 69 Bank for International Settlements (BIS), 65, 108

cabotage, 59 capital flows, 31, 63–65, 109, 159 capitalism, 16

236

I n de x

capitalism—continued “casino captalism”, 64 Cartagena Protocol, 134 Carter Administration, 187 CDC. see Centers for Disease Control CDEM (construction, design, equipment, and manning), 58, 85, 96 CEDAW. see Convention on the Elimination of all Forms of Discrimination Against Women Centers for Disease Control (CDC), 68, 137 Chanakya. see Kautilya Chandragupta, 19 Chicago Convention, 59 chivalry, 20–21, 28 Christianity, 11, 19–20 CITES. see Convention on International Trade in Endangered Species citizenship, 6, 16, 149, 160 “world citizenship”, 16 Civitas Dei (Augustine), 12 climate change, 92, 123, 131, 168, 173 Clinton, Bill, 114 cloning, 135–137 Code of Crimes Against the Peace and Security of Mankind, 40 Codex Alimentarius, 89–90, 96 Columbus, Christopher, 13 Commentaries on the Laws of England (Blackstone), 30 commerce, 27–34. see also lex mercatoria capital flows, 31–32 equality and, 32–33 ius gentium and, 28 Magna Carta and, 28–29 mare liberum and, 29 most-favored nation (MFN) agreements, 29 NIEO and, 33–34 State systems and, 27–28 trade financing laws, 30 transnational corporations (TNCs), 30–31 commons, 71–86 African elephants, 75–78 Antarctic ecotourism, 71–75

intellectual property rights and, 80–82 Internet and, 82–86 tropical rainforests and, 78–80 conflict, 19–25 chivalry and, 20–21 Geneva Conventions and, 24 Hague Law and, 22–24 international law and, 24–25 ius in bello and, 19, 21, 22 just war theory and, 19–20, 21 land-based warfare, 22 naval warfare, 22 prize law and, 22 Connery, Sean, 78 Consalato del Mare, 28 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 107 Convention on Biological Diversity, 62, 80–81 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 110–111 Convention on International Trade in Endangered Species (CITES), 77–78, 98, 114 Convention on Long-Range Transboundary Air Pollution, 92 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 130. see also female genital mutilation (FGM) Convention on the Regulation of Antarctic Mineral Resource Activities (CR AMR A), 73–74, 101 Convention on the Rights of the Child (CRC), 130 Convention Relative to the Preservation of Fauna and Flora in their Natural State, 62, 75 Corfu Channel Case (1949), 133, 193 corruption, 108–111 cosmopolitanism, 148–149, 153–154, 156, 160, 168 CR AMR A. see Convention on the Regulation of Antarctic Mineral Resource Activities crime, 103–118

I n de x blood diamonds, 111–115 corruption, 108–111 extradition, 105–106 FCPA and, 109–110 forced abduction, 106–107 ICC and, 117–118 INTERPOL, 107 money laundering, 107–108 mutual assistance and, 105 OECD and, 110–111 organized crime, 103–108 terrorism, 115–118 Crusades, 7, 12, 21 Cuban Liberty and Democratic Solidarity Act, 163 cultural exceptionalism in trade, 126–128 cultural heritage, 119–122 cultural relativity, human rights and, 128–130 culture, 119–130 cultural exceptionalism in trade, 126–128 cultural heritage, 119–122 cultural relativity and human rights, 128–130 indigenous peoples, 124–126 language rights, 122–124 currency exchange, 64, 66 de Groot, Hugo. see Grotius De jure belli ac pacis (Grotius), 21 DEA. see Drug Enforcement Agency delegation, 179–180 democracy, 149, 165, 198, 200 democracy deficit, 177–178 democracy revolution, 183 “direct” democracy, 172 Liberal, 44 pro-democracy, 84 deregulation, 59, 159 Digest of Roman laws, 6, 28 dignity, 35–41. see also human rights; slavery International Court of Justice (ICJ) and, 38–39 Nuremberg trials and, 39–40 State sovereignty and, 35–37 Treaty of Versailles and, 37–38 United Nations (UN) and, 38–39

237

Washington Consensus and, 41 diplomacy, failure of, 172–174 disciplines, 87–102 double standards, 91–95 environmental concerns and, 88–91 food safety and, 89–91 international labor standards and trade, 95–99 Law of the Sea and, 99–102 seabed minerals, 100 trade disputes, 88 WTO and, 87–91 domestic law, extraterritorial applications of, 162–164 Drug Enforcement Agency (DEA), 106 drug trafficking, 104, 107–108 Duguit, Leon, 14 Dutch East India Company, 7, 30, 151 Dutch Republic, 7, 13, 151 Ebola virus, 67, 68 ECHR. see European Convention on Human Rights ecotourism, 71–75, 76, 86 EIA. see environmental impact assessments Eichmann, Adolf, 40 electronic funds transfers (EFTs), 159 emission controls, 79, 91–94, 173. see also Kyoto Protocol; Montreal Protocol Enlightenment, 14, 129 environmental impact assessments (EIA), 63 Environmental Protection Agency (EPA), 59 EPA. see Environmental Protection Agency EU Privacy Directive, 142 European Biomedicine Convention, 135 European Community Treaty, 179 European Convention on Human Rights (ECHR), 155, 166, 176. see also human rights ex aequo et bono, 47 ex dedere aux judicare, 115 exotic species, spread of, 60–63 extradition, 105–107, 110–111, 115, 188. see also mutual assistance

238

I n de x

extradition—continued doctrine of specialty, 106 double-criminality, 105–106 political offense exception, 106 rule of non-inquiry, 105 Exxon Valdez, 58 FAO. see Food and Agricultural Organization FCNs. see Friendship, Commerce, and Navigation treaties FCPA. see Foreign Corrupt Practices Act FDI. see foreign direct investment female genital mutilation (FGM), 119, 128–130 fetials, 19 feudal law, 20, 28–29, 154 FGM. see female genital mutilation Fhimah, Ali Amin Khalifa, 115, 116 Fidler, David, 69 Food and Agricultural Organization (FAO), 89–90 Foreign Corrupt Practices Act (FCPA), 109–110 foreign direct investment (FDI), 8, 64–65, 109, 151, 159, 168, 181–183 Franck, Thomas, 191 French Revolution, 22 Friendship, Commerce, and Navigation treaties (FCNs), 33–34 G-8 (Group of Eight), 95 GATT. see General Agreement on Tariffs and Trade General Agreement on Tariffs and Trade (GATT), 88–91, 95, 98, 126, 128, 174. see also World Trade Organization emission controls and, 91–95 international labor standards and trade, 95–99 genetic pollution, 134 genetically modified organisms (GMOs), 61, 69, 131–135, 137 Geneva Conventions, 24 genocide, 15, 85, 117, 180 Genocide Convention, 40 global regulatory functions, 167–169

globalization, history of, 3–10 age of exploration and, 7 ancient Greece and, 5–6 China and, 6–7 empire and, 4–5 first great era, 7 ius gentium and, 6 Roman Empire and, 6–7 second great era, 7–8 State systems and, 3–4 third great age of, 8–10 GMOs. see genetically modified organisms Gratian, 11, 12 Great Depression, 34, 44–45, 63–65 greenhouse gas emissions, 79, 91–94, 173 Grotius, 13, 21, 47, 56, 191 Guantanamo Bay, 24 Hagenbach, Peter, 39 Hague Peace Conferences, 22–23, 23, 45, 107, 120, 162, 167, 191 Hamas, 117 Hardin, Garrett, 80 Harle, Vilho, 4 Haya de la Torre, Victor Raul, 49 High Court of Admiralty, 22, 30, 36 Hitler, Adolf, 40, 44 HIV, 66, 68–69 Holy Roman Empire, 12–13 Hull, Cordell, 32 Hull-Hay correspondence, 32 human rights. see also dignity; European Court of Human Rights blood diamonds and, 112–113 cultural relativity and, 128–130 culture and, 119, 123–125, 128–130 dignity and, 35–38, 40–41 diversity and, 148, 150 exceptionalism and, 184–185, 187 ILO and, 97 international law and, 195–198 language rights and, 123–125 neo-medievalism and, 155–156 permeability and, 165–166 regional systems, 165–167 State systems and, 15 supranational governance and, 174, 180

I n de x technology and, 135–136, 142 TNCs and, 152–153 United Nations and, 46, 80 United States and, 9 universalism and, 46, 50 World War II and, 192 Hume, David, 4 Hussein, Saddam, 109 hyper-power. see superpower IACAC. see Inter-American Convention Against Corruption IAEA. see International Atomic Energy Agency IBRD. see International Bank for Reconstruction and Development, World Bank ICANN. see Internet Corporaton for Assigned Names and Numbers ICAO. see International Civil Aviation Organization ICCPR. see International Covenant on Civil and Political Rights ICESCR. see International Covenant on Economic, Social, and Cultural Rights ICRC. see International Committee of the Red Cross ICSID. see International Centre for the Settlement of Investment Disputes IEEPA. see International Emergency Economic Powers Act IHR. see International Health Regulations ILO. see International Labor Organization IMF. see International Monetary Fund IMO. see International Maritime Organization imperialism, globalization and, 3–10 IMT. see International Military Tribunal income inequality, 181–184 indigenous peoples, 124–126 Industrial Revolution, 29, 44, 94 infectious diseases, globalization and, 66–69. see also Ebola virus; influenza outbreaks; smallpox influenza outbreaks, 44, 67, 137, 168

239

intellectual property rights, 34, 73, 80–82, 85, 100, 132–133, 136–137, 140, 154, 174 Inter-American Convention Against Corruption (IACAC), 111 International Atomic Energy Agency (IAEA), 107 International Bank for Reconstruction and Development (IBRD), 126, 175 (see also World Bank) International Centre for the Settlement of Investment Disputes (ICSID), 167 International Civil Aviation Organization (ICAO), 46, 59, 66, 69, 96 International Committee of the Red Cross. see ICRC International Committee of the Red Cross (ICRC), 23, 153 International Court of Justice (ICJ), 24, 38–39, 39, 48–50, 167, 188 Article 38, 46–50 dignity and, 38–39 Nicaragua Case, 24 Reparations for Injuries Suffered in the Service of the United Nations, 39 United Nations (UN) and, 46–47 VCCR and, 188 International Covenant on Civil and Political Rights (ICCPR), 125, 165–166 International Covenant on Economic, Social, and Cultural Rights (ICESCR), 165 International Criminal Court (ICC), 40, 117, 152, 161, 188 International Emergency Economic Powers Act (IEEPA), 114 International Health Regulations (IHR), 68 International Labor Organization (ILO), 81, 96–97, 96–99, 123 International Maritime Organization (IMO), 46, 57–59, 62, 66, 69, 90, 96, 107 International Military Tribunal (IMT), 39–40

240

I n de x

International Monetary Fund (IMF), 41, 46, 65–66, 96, 108, 110, 175–176 International Sea Bed Authority (ISBA), 100–101 International Telecommunications Union (ITU), 139 Internet, 82–86 cybersquatting, 85 management of, 85 national jurisdiction and, 84–85 Internet Corporaton for Assigned Names and Numbers (ICANN), 85 INTERPOL, 107 Irish Republican Army (IR A), 106 ISBA. see International Sea Bed Authority Islam, 11–12, 12, 19, 20, 28, 43, 49, 128–129, 198 ITU. see International Telecommunications Union ius ad bellum, 19 ius gentium, 6, 10, 11, 28, 29, 30 ius in bello, 19, 21, 22 ius naturae. see natural law Jay Treaty, 33 Jewish law, 19 jus cogens obligations, 15 just war theory, 12, 19–20, 21 Justinian, Emperor, 6, 28 Kant, Immanuel, 15–16, 149, 191 Kautilya, 19 Kennedy Administration, 187 Kenya, 76 Kimberley Process, 114. see also blood diamonds Krabbe, H., 14 Kyoto Protocol, 92–94, 173, 185. see also emission controls; Montreal Protocol La Jeune Eugenie, 35 labor standards, 95–99 landmine treaty, 24 language rights, 122–124 law of peoples, 50–51 Law of Peoples, The (Rawls), 50 Law of the Sea, 99–102 Law of the Sea Treaty (LOST), 99–101

Laws and Customs of War on Land, 23 League of Nations, 38, 45, 96, 191 Leninism, 16 lex maritima, 28–30 lex mercatoria, 28–29, 149, 152, 160–162, 167 Liberia, 57, 112–114 Lieber, Francis, 22 Lieber Code, 22, 120 Loi Toubon, 124 London Charter, 39–40 London Dumping Convention, 92 Long Depression, 44 Lord Stowell. see Scott, William LOST. see Law of the Sea Treaty Mad Cow disease, 91 Madrid Protocol, 72–73 Magellan, Ferdinand, 13 Magna Carta, 28–29 MAI. see Multilateral Agreement on Investment Maine, Henry, 4 Marcos, Ferdinand, 109 mare claussum, 56 mare liberum, 13, 29, 56 MARPOL, 58, 62 Marshall, John, 22, 36, 84, 105 Martens Clause, 23–24 Marxism, 16 Medicine Man, 78 microbialpolitik, 69 miles Christi, 21 MLATs. see Mutual Legal Assistance Treaties Mongols, The, 7, 21, 43 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 115 Montreal Protocol, 92–94. see also emission controls; Kyoto Protocol Moon Treaty, 139 most-favored nation (MFN) clause, 29, 88 movement, 55–69 Asian economic crisis, 63–66 CDEM (construction, design, equipment, and manning), 57, 58–9

I n de x exotic species, spread of, 60–63 ICAO and, 59–60 infectious diseases and, 66–69 “race to the bottom” and, 57 regulation of ocean and air transport, 55–60 Multilateral Agreement on Investment (MAI), 34 multipolarity, 5, 9, 192 Mussolini, Benito, 44 mutual assistance, 105. see also extradition Mutual Legal Assistance Treaties (MLATs), 105, 108 NAFTA. see North American Free Trade Agreement nation-State system, 16, 55–56, 147–150, 151–152, 154–157, 159–161, 172, 174–180 natural law, 11–17, 19, 35, 36, 50, 195 natural resources, 33, 79, 112, 138 Nawaz, M. K., 4 necessity of law, 14–15 neo-medievalism, 154–157 New International Economic Order (NIEO), 33–34, 100, 196 NGOs. see nongovernmental organizations Nicaragua Case, 24 Nicholas II, Tsar, 22 NIEO. see New International Economic Order nongovernmental organizations (NGOs) Antarctica and, 73–74 biotechnology and, 136 crime and, 112–113 diversity and, 147, 150, 152–153, 153–154, 157 indigenous peoples and, 126 landmines and, 24 legitimacy and, 171–172, 175, 177–178 neo-medievalism and, 155 networks and cosmopolite international society, 153–154 permeability and, 161, 165 regulation and, 87 SARS outbreak and, 68

241

North American Free Trade Agreement (NAFTA), 155–156, 160, 167, 185–186 Nuremburg trials, 23, 39–40, 117. see also Code of Crimes Against the Peace and Security of Mankind; Genocide Convention OAS. see Organization of American States ocean transport, regulation of, 55–60 OECD. see Organization for Economic Co-operation and Development Organization for Economic Co-operation and Development (OECD), 97, 110–111, 182 Organization for Security and Co-operation in Europe (OSCE), 123 Organization of American States (OAS), 108 organized crime, 103–108 OSCE. see Organization for Security and Co-operation in Europe Ottoman Empire, 8, 9, 12, 37 Outer Space Treaty, 139 ozone-depleting chemicals, 92–93 pacta sunt servanda, 8, 49 Palestine, 39 Pan Am Flight 103, 115–118 Pardo, Arvid, 100 Paris Convention on the Protection of Industrial Property, 81. see also intellectual property rights Paris Convention on Third-Party Liability Damage, 133 Paris Declaration, 22 Pax Romana, 6 PCA. see Permanent Court of Arbitration PCIJ. see Permanent Court of International Justice Peace and Truce of God, 20 Peloponnesian War, 5, 19 Permanent Court of Arbitration (PCA), 45 Permanent Court of International Justice (PCIJ), 38, 46, 47 perpetual peace, 15–16

242

I n de x

piracy, 36, 83, 107 Pound, Roscoe, 14 Preservation of Fauna and Flora in their Natural State, 62, 75 prisoners of war (PoWs), 23–24 privacy, 140–143 prize law, 22 Project for a Perpetual Peace (Kant), 15 protectionism, 184–188 particular, 185–188 universal, 184–185 Pufendorf, Samuel von, 47, 191 Punic Wars, 19 Qadafi, Muamar, 115 rainforests, 78–82 Rawls, John, 50, 51, 200 Reagan Administration, 187 regulation of ocean and air transport, 55–60 Reparations for Injuries Suffered in the Service of the United Nations, 39. see also United Nations res communis, 82–83 res nullius, 14, 82 Rhodian Sea Law, 28 Roberts, Harry, 32 Rolls of Oleron, 28 Roman Catholic Church, 11, 20, 28 Roman Empire, 5–6, 10, 11, 13, 19, 28–30 Roosevelt, Franklin, 187 Roosevelt, Teddy, 187 Roosevelt Administration, 187 Rostovtseff, Michael, 4 Rousseau, Jean Jacques, 14, 50 Russo-Japanese Wars, 8, 31 Rwanda, 117, 180 Saint Augustine, 11, 12 Saint Thomas Aquinas, 11, 12 Salinas, Carlos, 109 sanhedrin, 19 SARS (Severe Acute Respiratory Syndrome), 67–68 Scott, William, 22, 56 Seko, Mobutu Sese, 109 Selden, John, 13 Seven Years War, 7, 22

Sherman Act, 162 slavery, 35–37, 97, 153 smallpox, 67 social contract theories, 14–15, 50 sovereignty ancient States and, 4, 8 Antarctica and, 74, 79 Brezhnev Doctrine and, 16 commerce and, 27, 33 crime and, 104–105 dignity and, 36, 38 diversity and, 147–149, 153, 157 international law and, 191–200 Kyoto Protocol and, 94 legitimacy and, 174–175, 179–180 Middle Ages and, 20 movement and, 56, 59 space exploration and, 138 technology and, 132 territoriality and, 84 universalism and, 50 space exploration, 138–140 Spanish-American War, 8, 31 Special Drawing Rights (SDRs), 66 SPS Measures, 89–90 Stalin, Joseph, 44 State Responsibility, law of, 31–34, 133, 149 Steger, Manfred, 184 stem-cell research, 135–136, 137 Stockholm Annex, 133 Story, Joseph, 35, 36 Suárez, Francisco, 14 subsidiarity, 179 Suez Canal, 31 Summa Theologica (Aquinas), 12 superpower, U.S. as last remaining, 10, 181, 186 supranational institutions, democratic deficits of, 174–177 technology, 131–143 biometrics, 141 biopharming, 134–135 bioterrorism, 136–137 Cartagena Protocol and, 134 genetic pollution, 134 GMOs, 132–135 human cloning, 135–136 liability and, 134

I n de x privacy and international law, 140–143 space exploration and technologies, 138–140 stem-cell research, 135–136 terrorism antiterrorism efforts, 137, 141 arrest of suspected terrorists, 24 bioterrorism, 136–137 financing of, 103, 107 ICC and, 115–118 technology and, 142 UN Terrorism Financing Convention, 116–117 Thirty Years War, 21 TNCs. see transnational corporations Tokyo war crimes trials, 40, 117 Trail Smelter Arbitration, 133 transnational corporations (TNCs), 147, 149, 151–153, 155–157, 165, 178 Treaty of Tordesillas, 13 Treaty of Versailles, 37–38, 96 Treaty of Westphalia, 147–150, 154–155, 161 Treaty of Zaragoza, 13 Treaty on the Prevention of Pollution from Ships. see MARPOL ubi societas, ibi jus, 14 UN Convention on the Law of the Sea (UNCLOS), 62, 99–100 UN Framework Convention on Climate Change, 92 underwater cultural heritage (UCH), 121–122 United Nations (UN) Antarctica and, 73 Charter on Economic Rights and Duties of States, 33 commerce and, 33 Conference on International Trade Law, 162 Convention on the Law of the Sea (UNCLOS), 62, 99–100, 121 crime and, 107–108, 111, 113, 115–117 culture and, 125, 127 Declaration on Permanent Sovereignty over Natural Resources, 33

243

dignity and, 38–39 diversity and, 150, 153, 155 food safety and, 90 formation of, 46 Framework Convention on Climate Change, 92 High Commissioner for Refugees (UNHR), 176 human rights and, 165 IAEA and, 107 ICAO and, 66 IMO and, 57, 66 intellectual property rights and, 80, 85, 133, 136 International Law Commission (ILC), 34 labor and, 96, 123 outer space and, 138–139 pollution and, 134 Reparation for Injuries Suffered in the Services of the United Nations, 39 Security Council, 192, 195 UNESCO, 120, 122 universalism and, 46–47 WHO and, 68 universalism, 43–51 deglobalization and, 43–45 general principles of international law, 48–49 international agreements and, 49–50 League of Nations and, 45–46 Rawls, John and, 50–51 sources of international law and, 47–48 United Nations (UN) and, 46 U.S. v. Aluminum Co. of America, 162–163 U.S.-Mexico Extradition Treaty, 106–107 U.S.-U.K. Supplemental Extradition Treaty, 106 Vattel, Emerich de, 191 VCCR. see Vienna Convention on Consular Relations Vienna Convention on Consular Relations (VCCR), 187–188 Vienna Convention on the Protection of the Ozone Layer, 92 Visby and Amalfi Tables, 28

244

I n de x

Vitoria, Francisco de, 14 Warsaw Convention, 60 Warsaw Pact, 16–17 Washington Consensus, 41, 65, 98, 159, 176, 182, 186 Watson, Alan, 29 weapons of mass destruction (WMD), 24, 131, 136, 187 WHO. see World Health Organization Wilberforce, William, 35 Williamson, John, 41 Wilson, Woodrow, 45, 187 Wirtz, Henry, 39 World Bank, 41, 46, 65, 96, 110, 126, 167, 175–176, 185 World Court, 24, 39, 47, 50, 115, 133, 193, 195, 197 World Diamond Council (WDC), 114. see also blood diamonds World Health Organization (WHO), 46, 68–69, 89, 135–137 World Intellectual Property Organization (WIPO), 85, 132–133, 136. see also intellectual property rights World Meteorological Organization (WMO), 46 World Trade Organization (WTO). see also General Agreement on Tariffs and Trade Article XX, 89, 127–128 criticism of, 174–175 cultural exceptionalism in trade, 126–128

double standards, 91 intellectual property rights and, 81 international labor standards and trade, 95, 98 international law and, 167, 171 international trade and, 65, 87–91 lex mercatoria and, 161 neo-medievalism and, 155–156 SPS Agreement, 89–90 transparency and, 174–175, 185 World War I air transport and, 56 democracy and, 45 global economy and, 44 Hague Peace Conference and, 23 imperialism and, 8, 9, 31 international law and, 148 League of Nations and, 45, 191 Treaty of Versailles and, 37–38, 96 World War II democracy and, 45–46 GATT and, 87 human rights and, 97, 192, 197 imperialism and, 9 international law and, 38–40, 117, 148 Nuremberg trials and, 23 United Nations and, 46 WTO. see World Trade Organization Yugoslavia, 38, 117 zebra mussel, 60–61 Zimbabwe, 75–78, 80, 100