Derecho Internacional/ International Law

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encuentro_07Remaking Globalization for the Local: The Real Search for Equality and Diversity in International Law

Source: Ejil Talk
November 9, 2016
From Western liberal democracies in the United States and the European Union, to historically democratic developing countries such as the Philippines, ignored, disenfranchised, and disempowered local communities emphatically made themselves heard in elections and referenda around the world. For better or for worse, the international economic order will be remade, somehow. It would be specious and condescending to merely say that this is the rise of “populism” without truly understanding the concerns of local communities who have driven electorates all over the world to reject any form of the “establishment” – whether they be traditional politicians and parties, State apparatuses, international organizations, mainstream media, or multinational corporations.

The supranationalist structures of modern international law’s prominent institutions – the United Nations (UN), the Washington Consensus behemoths such as the World Bank (WB) and the International Monetary Fund (IMF), the World Trade Organization (WTO), the European Union (EU), among others – are premised on deepening inter-State cooperation while still ensuring full respect for the basic UN Charter of the “principle of sovereign equality” of all States. However, the actual power and felt impact of these global institutions on the daily modern lives of individuals, groups, and local communities reveals serious fissures that expose an obvious imbalance between the terms of international cooperation and States’ sovereign equality – from the micromanagement of Greek agencies by EU fiscal managers and inspectors during the worst nadir of the EU’s financial crisis; the enforced austerity and structural adjustment programs of World Bank technocrats harnessing the leverage of the Bank’s conditionality lending to developing countries; the loss of jobs and social dislocations caused to communities throughout manufacturing states in the United States of America when multinational corporations move operations offshore to China or Mexico; as well as the drastically increased competition for resources and the rise in challenges to religious, social, ideological and group identity posed by cleavages within multicultural societies emerging from formerly hermetic communities now overrun by refugees and other immigrants fleeing political persecution, climate change-related natural disasters, and other humanitarian crises.

Restive “Westphalian” political elites push back against the seeming tyranny of the international system and its global institutions, in order to increasingly assert the sovereign prerogative of states and their supposed ‘independence’ from any form of international governance that ultimately erodes any of these elites’ real bases of power. The recent rise of populist, anti-establishment, anti-trade, and anti-internationalist leaders throughout established democracies – from France’s Marine Le Pen, the United States’ Donald Trump and (to a certain extent) Bernie Sanders, the United Kingdom’s Nigel Farage, the Philippines’ Rodrigo Duterte, Venezuela’s Hugo Chavez, among others – is no coincidence. ‘Silent’, faceless, and individually powerless, electoral majorities are clearly voting for leaders who project themselves as best able to roll back the worst excesses of inequality, insecurity, and uncertainty faced by households from an (actual or imagined) unrestrained international order. The rise of an unstable, deep populism throughout liberal democracies around the world does not only express what IMF Managing Director Christine Lagarde calls “a groundswell of discontent” against globalization, but rather, a return to a much harder ‘Westphalian’ version of State sovereignty insulated from the common interests and shared concerns of this century’s community of nations forged and united in the aftermath of the First and Second World Wars.

The modern international system is in disarray, because the premise of “sovereign equality” was never fully internalized in the design of institutions for international cooperation, and today, more individuals and local communities are able to use voice and exit against any actual or perceived structural inequalities of the international system. When China refuses to recognize the Philippines v. China arbitration award involving the interpretation of China’s 9-dash line map (and its use to China as the basis for asserting historic title and historic rights) and the characterization of geographic features over which China has built islands for military and other related purposes, it demonstrates the impotence of an international system that cannot realistically enforce international decisions on Permanent Members of the UN Security Council. When Russia easily resists any Security Council vote over its military actions in Ukraine by using its own veto, or the United States avoids paying compensation to Nicaragua as determined by the International Court of Justice by using its own Security Council veto to avoid enforcement of the Nicaragua v. United States judgment, the historic realist disenchantment with the aspirations of positivist international law vividly surfaces. This gulf between big powers and small players in the international system – and the seeming powerlessness of individuals and local communities in these cross-border battles between political elites purporting to assert the will of the State – can only be more easily understood from the prism of the New Haven School of International Law’s recommendation to consider international law as the whole process of “authoritative decision-making”: “the world community is the scene of many effective decisions that involve more than one of the organized bodies-politic conventionally called nation-states. Specialized institutional practices cross boundaries…if the decision-elite of one body-politic violates the usual freedom given to the agents of another, the elite of the latter will adopt deprivational measures against the offending state. Clearly it is a question of arrangements that are genuinely effective across particular boundaries, and that are sustained by sanctions of potential severity, sanctions of noncooperation or even of organized violence…” Myres S. McDougal, et al., The World Constitutive Process of Authoritative Decision, 19 Journal of Legal Education 3 (1966-1967), at p. 19.] And in this process of global authoritative decision-making thus far in the international system, I submit, it remains an undisputed fact that it is individuals, groups, and local communities that are the most marginalized in their access to mechanisms of authority and control in international decisions. This is so when States’ political elites authorize actions concerning the use of force often in a climate of secrecy that obviates the traditional safeguards of public decision-making usually relied upon by individuals, groups, and affected communities (as I discussed in Necessity and National Emergency Clauses: Sovereignty in Modern Treaty Interpretation, Martinus Nijhoff 2012); when States and international organizations make largely unaccountable distributive decisions in world trade, development finance, and foreign investment regimes, often without the input, feedback, and direct participation of individuals, groups, and local communities (as I discussed and theorized in Public Policy in International Economic Law: The International Covenant on Economic, Social and Cultural Rights in Trade, Finance, and Investment, Oxford University Press, 2015); or when States’ political elites make the kind of expedient compromises and define constructs of ‘reparative justice’ that ultimately decide what form, proportion, or mode of reparations are due to them (even if it is the State’s nationals, groups, or local communities that are directly injured) for fellow States’ breaches of international law (as I reveal in Postmodern Reparations in International Law, forthcoming).

The famous American international law scholar and international legal historian, Louis Henkin, saw it best: “[e]quality is not yet universally welcomed, and discrimination on grounds of race, ethnicity, or gender will be difficult to eradicate. The world has moved, yet it has not yet moved far enough.” [Louis Henkin, The Universality of the Concept of Human Rights, 506 Annals of the American Academy of Political and Social Science, (November 1989), p. 15.] Individuals, groups, and local communities are supposed to have distinct status as subjects of modern international law [M.W. Janis, Individuals as Subjects of International Law, 17 Cornell Law Journal 1 (1984)], but they are not, in any way, equal authors of the norms that States recognize as binding international law and which they ultimately impose upon their populations. When a State commits itself, for example, in an international investment treaty, to give direct recourse to foreign investors from another State to be able to sue that host State of the investment for multimillion, if not multibillion dollars in compensation – it is rare, if at all, for the host State to have consulted with individuals, groups, and local communities in the negotiation and drafting of these kinds of treaties. And yet, when the same host State (under future political elites) has to pay these vast sums for compensation to foreign investors due to the injurious acts of government officials – these very same individuals, groups, and local communities do not possess any real authority to hold their errant or corrupt government officials accountable and to stem or mitigate the loss of national funds that ordinarily ought to serve the interests of the country’s economic development. Individuals, groups, and local communities have been privileged, at every turn, as rights-bearers in international law – whether in international human rights law, international environmental law, among others – and yet their real capabilities to police the excesses of their political elites’ use (and misuse) of legal institutions, norms, and remedies in the international system remains nascent, if not aspirational, at best. Ultimately, because individuals, groups, and local communities remain largely dependent on the axiom of state sovereignty in international law (and state representation of their interests in international law-making in global institutions and international law-enforcement before international courts and tribunals), they become captive to the expanded rent-seeking capabilities of morally-hazardous political elites manipulating the international system to their best interests, using tools such as “executive privilege” for “foreign policy decisions” to insulate them from domestic accountability before the traditional judicial channels in local courts. It is all too easy for States’ political elites to breed generations of tribalist attitudes within their populations resistant to any international rule of law or ‘interference’ by any international institution in these instances.

I submit that the tension playing out in international law between the rise of tribalism and the wane of globalization, can only be understood better in the context of the perennial search for authentic equality and genuine diversity in international law. The Charter of the United Nations expressed the faith of peoples in “fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small….the principle of equal rights and the self-determination of peoples”, and yet, the actual force of these proscriptions in international law remain limited by what States will actually recognize (and enforce) as authoritative decisions.

However, discrimination knows no boundaries, and its impacts cannot be contained by territorial parameters. Individuals, groups, and local communities that face onslaughts from the inequalities fostered under globalization would thus merely transfer their search for accountability from the inter-State or international institutional level of decision-making, back to their own political elites within their State’s jurisdictional limits. Whether they deal with international elites or their own political elites at home, individuals, groups, and local communities will continue to face deficits in their ability to assert and enforce their rights in any system, national or international.

Yet it does not necessarily follow that the choice is inevitably a binary one between oscillations of ‘tribalism’ and ‘globalization’ in international law. While system reformists and constitutionalists can spend decades in reconfiguring an inherited international system or a pre-existing domestic governmental system to try and redistribute more powers, privileges, and prerogatives for disaffected, dislocated, and displaced individuals, groups, and local communities, the inevitable bureaucratic gridlock – whether internationally or domestically – will still stand in the way of individuals, groups, and local communities being able to avoid, mitigate, or obtain redress for their grievances and discontents with globalization, or for the factionalizing violence and divisive exclusions that tribalism ultimately endorses.

The key, I submit, is to level the playing field as much as possible for individuals, groups, and local communities – whether at the State’s treaty negotiating table, the State’s elite enclaves that instantiate the decision to initiate an international case or arbitral proceeding, or any other decision-making forum (national or international) that impact the interests of individuals, groups, and local communities. Rather than seeking to just liberalize international legal rules on jurisdiction, standing, or limited participation in international proceedings (an effort which is already underway across many fields of international law), it is a borderless “information ecology” that has to be creatively deployed and completely opened so that individuals, groups, and local communities to take advantage of the ubiquity of advanced technologies, instantaneous information exchanges, and the unprecedented multiplication of platforms for communication to empower meaningful participation – independently of the political elites in their States – in the global constitutive process of authoritative decision-making and international governance. Public decision-making by political elites/agents of the State, whether at the international level (treaty negotiation, international dispute settlement, agenda-setting for international cooperation, cross-border fiscal decisions among others) or the national level should have a corresponding and continuing duty of transparency and oversight owed to individuals, groups, and local communities as independent subjects of international law and not just as voter constituencies in their respective States to whom information can be selectively or discretionarily given. If individuals, groups, and local communities are to possess genuine rights to equality and self-determination in international law – irrespective of their religious, cultural, racial, gender, or community diversity – States owe them the fullest access to information implicated, related, or in any way linked to public decision-making. When individuals, groups, and local communities are aware that political elites are negotiating treaties and entering into bargains that likely affect their interests, they are sooner able to mobilize to provide input, register public objection, or rally cross-border non-State allies to prevent such unaccountable public decisions from being made in the first place, and long before the State is compulsorily hauled to international dispute settlement processes that foreseeably impact State resources and assets. This obligatory global architecture for mandatory information provision has never been built (albeit encouraged within various auspices of the United Nations and its specialized agencies), but I would argue that this is a timely, if not urgent mechanism to vitalize the fundamental rights to equality, diversity, and self-determination held by individuals, groups, and local communities in international law.

To date, the archaic mechanisms within the international system envisage limited, if not creeping, or incremental observation and/or participation by individuals, groups, and local communities before international institutions. In investor-State arbitrations at the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), some transparency mechanisms (albeit under considerable restrictions and conditions) have enabled affected local communities to provide information inputs and commentaries for the consideration of the ICSID tribunal in ongoing disputes. At the World Trade Organization (WTO), civic groups, human rights organizations, indigenous peoples, and other non-State actors have some limited access to the global trade negotiations agenda, but they are not permitted to participate or contribute in the adjudication of trade cases without the consent of WTO Member States submitting such disputes. The United Nations’ many specialized agencies, and in particular, its nine major human rights committees, have opened several channels for redress, written communications and reporting against State violations, and other fundamental access to information by individuals, groups, and local communities affected by human rights violations. All of these international reforms towards increased transparency and individual/group/community participation have largely been incremental, and have not been institutionalized into the international legal system without intense resistance (and understandably so) from States’ political elites. If individuals, groups, or local communities can bypass traditional State mechanisms of diplomatic representation to assert an “equal” footing at the treaty negotiation table with their States of origin, there will be a clear diminution of the powers and prerogatives of States’ political elites. It is thus ultimately to these political elites’ incentive and greatest interest to push back against globalization – not just for the possible erosions of sovereignty by unelected representatives of supranationalist global institutions, but likewise for the possible real threat that political elites could be made accountable by their own citizens in forums outside of the territorial precincts of the State and thus beyond these elites’ control – whether it be the International Criminal Court, the Human Rights Committee, sovereign arbitration before any of the international arbitration courts or tribunals, foreign courts with liberal jurisdictional rules, or any other international mechanism open to the articulation, prosecution, and/or enforcement of the claims of individuals, groups, or local communities against their own States’ decision-making elites.

But this is where the de-nationalized nature of borderless information access and instantaneous exchange can spark strategic and more effective collective actions by individuals, groups, and local communities that would not otherwise have resources to mobilize and seek accountability against political elites in the national or international systems. [F. Vanni, The Role of Collective Action, pp. 22-37 in Agriculture and Public Goods, Springer 2014] Enabling a genuinely open information architecture for international public decision-making would, in my view, give concrete response to what Balakrishnan Rajagopal argues as a reality of international law and social movements that undergird “mass resistance around the world to global legal structures”. [Balakrishnan Rajogapal, International Law and Social Movements: Challenges of Theorizing Resistance, 41 Columbia Journal of Transnational Law (2003), pp. 397 et seq.]

Most importantly, cultivating an obligatory “information ecology” for States’ political elites to open information on their public decision-making in the international sphere would also ultimately help redefine the index of “relevant practices” that international lawyers, international judges, and international law scholars consider when seeking to articulate often fuzzy concepts such as “customary principles of international law” or “general principles of law” that operate as sources of international law. The framing of these principles have often had little, if any significant reference to, the articulations of individuals, groups, and local communities who themselves stand as independent subjects of international law but whose utterances, beliefs, expressions, and practices are ignored by international lawyers still referencing the traditional taxonomies of treaty, custom, and general principles as the “sources of international law” under Article 38 of the Statute of the International Court of Justice. International lawyers, judges, and scholars (re)construct and unscientifically “divine” these principles from historical records and a mass of government documents, jurisprudential reports, laws, and even – the writings of “the most eminent publicists”. These artifacts are privileged often out of orthodoxies in the methodology for international law research, the scarcity of available materials in libraries and government archives, or the very limits of the law clerk’s energies and time for research. It defies comprehension why, to this day, individuals, groups, and local communities have remained as ‘faceless’ in international law in the face of supranationalist global institutions or powerful political elites in States. An obligatory open-access information architecture is not just one way to galvanize these actual independent subjects of international law to make informed choices between tribalism and globalization or any middle road between these extremes, rather than simply delegating their rights in the international sphere to the flawed self-interested agencies of political elites in their States. Rather, an open-access information architecture would also enable individuals, groups, and local communities – as independent subjects of international law – to also contribute a powerful, verifiable, and alternative counterfactual to the currently State-driven cycle of writing, debating, obsolescence, and emergence of international law ‘customary’ norms and ‘general principles’ of international law. It is time that their voices – beyond that of States’ traditional political elites – also be heard in the (re)making of international law under a truly adaptive, information-driven, open information ecology giving substance to the right to equality of all individuals, groups, local communities as subjects of international law in their own right. Perhaps, the arduous work of rethinking and remaking the “new” New International Economic Order can genuinely begin here.

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