Legal Commentary

In response to my post from earlier, Rob Howse referred me to his review article -- The End of the Globalization Debate: A Review Essay -- published earlier this year in the Harvard Law Review. It's nicely written, insightful, and well-worth the read.

In the article, Rob describes how both the traditional political right and left have come to embrace globalization -- neither side argues any longer that the territorial nation-state should remain the "locus of control over economic activity" or "should retain a monopoly on legitimate governance." Rob explains how the once antiglobalization movement, which saw globalization (and the pro-free market forces with which it was identified) as undermining progressive values, itself began to embrace global law and policymaking as a way to advance those same progressive causes. In Rob's words, everything has gone global.

As a descriptive matter, Rob seems correct that the globalization debate is largely over. The concept of the nation-state as the sole operator and source of authority in the international sphere has long been inaccurate (if it ever was). The state, as Rob notes, has been reshaped, remade and reordered as a result of the worldwide expansion of commerce, communications, crime, and human rights, among other things. If the point is that globalization is here to stay with us, it seems correct. The question is: what next? This, as Rob highlights at the very end of his review, is the issue of global governance and global justice. It is where much of the cutting-edge legal scholarship in this area is being written. No longer is the debate over the benefits of globalization itself.

My concern is the path that the global governance debate is taking in the face of, and in response to, a globalized world. Because economic and social globalization has outpaced political globalization, international actors are feverishly trying to figure out how to address global problems using traditional forms, and not so traditional forms, of governance. The political left in the United States, disappointed with the speed with which international treaties and institutions have developed, increasingly turn to U.S. domestic laws as a way to promote its American version of environmental and human rights, and otherwise advance its progressive causes. The political right has the same preoccupation with U.S. domestic laws as a method for promoting economic liberalization. At the same time, the political right is nervous of non-economic international law, because that law was often developed by liberal elites as part of the international human rights and environmental rights movement. The right, while largely supportive of economic globalization, is increasingly vocal in its condemnation of international law (a good example, is the spirited debate -- now a few years old -- over the use of international and foreign law in U.S. constitutional decisions). Academics have supported these domestic law approaches, believing that if state boundaries are no longer as important as a descriptive matter, then domestic law can fill the gaps. Unilateral actions become necessary, the argument goes, to solve pressing global problems. Rob's comment to my post yesterday appears sympathetic to this approach, as he asks what's so absurd about U.S. domestic laws regulating the conduct of foreigners abroad?

Yet the global governance debate seems undermined by myopia -- with activists and academics alike focusing on the short-term, and ignoring the long-term. Over time, the American political left, which promotes a particular brand of human and environmental rights (a kind I happen to like), is ill-served by unilateral domestic actions. Global governance based on unilateral action by individual groups or states is apt to be fragile and unlikely to lead to a realization and sustaining of those global values which the left values most (Nico Krisch has done some interesting work in this area in connection with theories of hegemonic decline). The same problem exists for the right. All too concerned that non-economic international law serves the goals of the left, political conservatives have turned away from a meaningful discussion of creating robust global institutions, and have sought to all too often rely on domestic laws to solve global challenges.

To my mind, neither group ultimately is served by global justice that translates as an anarchic free-for-all of domestic regulation -- be it economic laws or non-economic laws (e.g., ATS claims). Nevertheless, this approach seems often encouraged inadvertently by modern international legal scholars, many who embrace transnational networks, dialogue, and legal process, when they move beyond the descriptive (what's happening with globalization) to the normative (how should global governance be structured). It's also often evident in scholarship promoting alien tort statute claims, as well as academics who argue for vigorous extraterritorial enforcement of economic laws.

My belief -- albeit admittedly currently unfashionable and seen, by some, as quaint -- is that both groups are better served if traditional international law, based in large part on concepts of territorial sovereignty, remains the preferred method of developing global governance. That is not to ignore globalization. It is to say that in a globalized world, the territorial nation-state remains important not as a way to stop globalization, but as a way to govern it in a productive way. From a American-perspective, international law continues to allow the United States to promote and project its particular brand of human rights, as well as its embrace of free-markets and trade. I suspect that those who try to regulate global politics through "exhilirat[ing] new possibilit[ies] of connectedness and human flourishing" will ultimately be disappointed.

In short, to the extent valuing traditional forms of international law (treaties) as a way to constrain state excesses and promote American style values means "marching in favor of states" -- I'm happy to march.