BOSTON COLLEGE LAW BOSTON COLLEGE LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES RESEARCH PAPER 75 June3,2005 Globalization and the theory of International Law Frank Garcia Professor, Boston College Law School This paper can be downloaded without charge from the Social science research Network http://ssrn.com/abstract=742726
BOSTON COLLEGE LAW BOSTON COLLEGE LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES RESEARCH PAPER 75 June 13, 2005 Globalization and the Theory of International Law Frank J. Garcia Professor, Boston College Law School This paper can be downloaded without charge from the Social Science Research Network: http://ssrn.com/abstract=742726
Globalization and the Theory of International Law Frank garcia* Boston College Law School Contemporary globalization both requires, and permits, the re-casting of international law away from a"society of states "model and towards a model of global society and even global community. By effectively eliminating both time and space factors in social interaction, globalization is changing the nature of global social relations, intensifying the obsolescence of the society of states"model, and demanding al fundamental change in the social theory of international law towards a global society of persons. Because of these changes, globalization requires that we re-cast international law into a global public law, and expand the domain of justice from the domestic into the global, as the fundamental normative criterion for international law. Through a profound re-examination of core international legal doctrines and institutions such as boundaries sovereignty, legitimacy, citizenship, and the territorial control of resources, the international law of a society of states can be re-fashioned into the global public law of a global society II. From States to Persons: Re-conceptualizing Global Legal Regulation The dominant contemporary account of the social basis of international law has been the society of states "model. In this view, to the extent that international law s This essay is drawn from a larger work-in-progress delivered as a working paper at MIT, Brandeis, and Boston College. The author would like to thank those audiences for their helpful input, and Mark Toews for his able research assistance. This essay was prepared with the support of the Boston College Law School fr francis Nicholson fund See generally CHARLES BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS 67-123(1979) (overview of the society of states model of international relations, superseding earlier Realist paradigm)
“Globalization and the Theory of International Law” Frank J. Garcia* Boston College Law School I. Intro Contemporary globalization both requires, and permits, the re-casting of international law away from a “society of states” model and towards a model of global society and even global community. By effectively eliminating both time and space as factors in social interaction, globalization is changing the nature of global social relations, intensifying the obsolescence of the “society of states” model, and demanding a fundamental change in the social theory of international law towards a global society of persons. Because of these changes, globalization requires that we re-cast international law into a global public law, and expand the domain of justice from the domestic into the global, as the fundamental normative criterion for international law. Through a profound re-examination of core international legal doctrines and institutions such as boundaries, sovereignty, legitimacy, citizenship, and the territorial control of resources, the international law of a society of states can be re-fashioned into the global public law of a global society. II. From States to Persons: Re-conceptualizing Global Legal Regulation The dominant contemporary account of the social basis of international law has been the “society of states” model.1 In this view, to the extent that international law * This essay is drawn from a larger work-in-progress delivered as a working paper at MIT, Brandeis, and Boston College. The author would like to thank those audiences for their helpful input, and Mark Toews for his able research assistance. This essay was prepared with the support of the Boston College Law School Fr. Francis Nicholson Fund. 1 See generally CHARLES BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS 67-123 (1979) (overview of the society of states model of international relations, superseding earlier Realist paradigm). 1
constructs an ordered social space(a claim which has been contested since Hobbes if not before), it is a social space in which states are the subjects. In other words, international law exists to order a community in which states are the members This view of international law as regulating a society of states has two important normative implications, both flowing from the core analogy of states to persons underlying the model. First, it asserts a strong view of state autonomy: like persons in domestic society, states in international society are viewed as autonomous sources moral ends, immune from external interference. Second, there is no principle of distributive justice to which states are subject; they are presumed to be entitled to the resources they control. Taken together, this approach can be called the"morality of states"model of international justice.+ We can see this approach played out doctrinally in many key areas. For example the core doctrines of non-intervention. self-determination and state responsibility treat the state as the primary locus of autonomy, self-realization, and rights, and are framed largely in view of the interests and needs of territorial states. International harms to individuals are understood within a framework of harm to a states rights. In all cases, the analogy between states and persons controls, and it is the state's liberty and rights which are defined as primary subjects of the law Beitz, supra note I at 65-66 s Beitz has analogized this to 1gth century liberalism at the international level: "a belief in the liberty of individual agents with an indifference to the distributive outcomes of their economic interaction. ""Id To cite just one example of the doctrinal pre-eminence of this view, the society of states model underlies the entire approach to international law taken in the Restatement of Foreign Relations Law. The Restatement asserts that"international law is the law of the international community of states, and"states are the principal persons in international law. " All other entities with any personality(international organizations and natural persons themselves) derive their personhood, and the extent of their legal rights in international law, from grants flowing from the primary persons: states. Restatement p. 16-17, 70-
constructs an ordered social space (a claim which has been contested since Hobbes if not before), it is a social space in which states are the subjects. In other words, international law exists to order a community in which states are the members. This view of international law as regulating a society of states has two important normative implications, both flowing from the core analogy of states to persons underlying the model. First, it asserts a strong view of state autonomy: like persons in domestic society, states in international society are viewed as autonomous sources of moral ends, immune from external interference.2 Second, there is no principle of distributive justice to which states are subject; they are presumed to be entitled to the resources they control.3 Taken together, this approach can be called the “morality of states” model of international justice.4 We can see this approach played out doctrinally in many key areas. For example, the core doctrines of non-intervention, self-determination and state responsibility treat the state as the primary locus of autonomy, self-realization, and rights, and are framed largely in view of the interests and needs of territorial states. International harms to individuals are understood within a framework of harm to a state’s rights. In all cases, the analogy between states and persons controls, and it is the state’s liberty and rights which are defined as primary subjects of the law.5 2 Beitz, supra note 1 at 65-66. 3 Beitz has analogized this to 19th century liberalism at the international level: “a belief in the liberty of individual agents, with an indifference to the distributive outcomes of their economic interaction.” Id. 4 Id. 5 To cite just one example of the doctrinal pre-eminence of this view, the society of states model underlies the entire approach to international law taken in the Restatement of Foreign Relations Law. The Restatement asserts that “international law is the law of the international community of states,” and “states are the principal persons in international law.” All other entities with any personality (international organizations and natural persons themselves) derive their personhood, and the extent of their legal rights in international law, from grants flowing from the primary persons: states. Restatement p. 16-17, 70-1. 2
Pressure to shift away from this model began in earnest in the mid-20 century, through human rights, international economic law, and the emergence of international civil society, all of which render the""society of states" model increasingly deficient both empirically and normatively. Criticisms of current international law and institutions point to the lack of democratic participation and legitimacy, lack of distributive justice, lack of basic welfare rights and security, etc. -the usual suspects in conferences and symposia such as this one. From a theoretical viewpoint, I would argue that these are not problems in the " society of states"model -instead, they point to the limits of this model, signaling that we have reached those limits. What is the next step? Globalization, Global Society and global Communit Efforts to reconfigure international law at the theoretical level often center around the fundamental moral status of individual persons, drawing on the work of Kant and others, and going by the name"cosmopolitanism. Such efforts, however, run into a variety of theoretical problems, including important communitarian objections to the possibility of global justice, on the ground that justice is a virtue within political communities, not between them. This objection fits well with the"society of states model, and helps keep justice out of international law However, by effectively eliminating both time and space as factors in social interaction, globalization is changing the nature of global social relations, and creating the basis for both society and community at the global level. Viewed from the See generally Charles Beitz, Cosmopolitan Liberalism and the State System, " in POLITICAL RESTRUCTURING IN EUROPE(BROWN ED 1994)(surveying contemporary cosmopolitanism) See generally DAVID MILLER, ON NATIONALITY (1995), MICHAEL WALZER, SPHERES OF JUSTICE(1983) (raising general communitarian objections to global justice) For a comprehensive overview of globalization as a phenomenon, emphasizing changes in the perception of time and space, see Heba Shams, "Law in the Context of "Globalisation: A Framework of Analysis, "35 NT'L LAWYER 1589(2001)
Pressure to shift away from this model began in earnest in the mid-20th century, through human rights, international economic law, and the emergence of international civil society, all of which render the “society of states” model increasingly deficient both empirically and normatively. Criticisms of current international law and institutions point to the lack of democratic participation and legitimacy, lack of distributive justice, lack of basic welfare rights and security, etc. – the usual suspects in conferences and symposia such as this one. From a theoretical viewpoint, I would argue that these are not problems in the “society of states” model - instead, they point to the limits of this model, signaling that we have reached those limits. What is the next step? III Globalization, Global Society and Global Community Efforts to reconfigure international law at the theoretical level often center around the fundamental moral status of individual persons, drawing on the work of Kant and others, and going by the name “cosmopolitanism.”6 Such efforts, however, run into a variety of theoretical problems, including important communitarian objections to the possibility of global justice, on the ground that justice is a virtue within political communities, not between them. 7 This objection fits well with the “society of states” model, and helps keep justice out of international law. However, by effectively eliminating both time and space as factors in social interaction,8 globalization is changing the nature of global social relations, and creating the basis for both society and community at the global level. Viewed from the 6 See generally Charles Beitz, “Cosmopolitan Liberalism and the State System,” in POLITICAL RESTRUCTURING IN EUROPE (BROWN ED. 1994) (surveying contemporary cosmopolitanism). 7 See generally DAVID MILLER, ON NATIONALITY (1995), MICHAEL WALZER, SPHERES OF JUSTICE (1983) (raising general communitarian objections to global justice). 8 For a comprehensive overview of globalization as a phenomenon, emphasizing changes in the perception of time and space, see Heba Shams, “Law in the Context of ‘Globalisation:’ A Framework of Analysis,” 35 INT’L LAWYER 1589 (2001). 3
perspective of political theory, globalization is lifting relationships out of the strictly territorial into the"global "or meta-territorial. The political and legal significance of this change is immediate and fundamental as the space in which we conduct our social relations changes. our manner of regulating those relations must change as well. To be effective, regulatory decisions must increasingly involve the meta-state level Globalization thus requires a fundamental re-examination of social regulation and governance at the global level, leading to a system in which states may still have a preeminent role, but not the only role For our purpose here, we need to understand how globalization is changing the nature of social relations, at the national and at the"global" levels, and paving the way for global community, and for global justice, even on stringent communitarian terms. I This change has a fundamental impact on the possibilities open to international law First, global ization is bringing about at the global level the conditions which make justice both possible, and necessary, at the domestic level, which Rawls calls the circumstances of justice. Rawls lists five circumstances a moderate scarcity of resources, a shared geographical territory, a capacity to help or harm each other, and subjectively, that people are both non-altruistic, and hold conflicting claims. 3 The key point is that globalization is bringing about the same circumstances of justice at the global level, which Rawls described at the domestic level. To begin with Id. see generally GLOBAL TRANSFORMATIONS(HELD, ET AL. EDS 1999)(reviewing evolution of meta state institutions See, e.g., ANNE MARIE SLAUGHTER, A NEW WORLD ORDER (2004); MANUEL CASTELLS, THE RISE OF THE NETWORK SOCIETY(1996) I My treatment here draws on a fuller exposition of these issues, in"Globalization, Global Community and the Possibility of Global Justice, available at http://papersssrn.com/sol3/papers.cfm?abstractid=661564 12 JOHN RAWLS, A THEORY OF JUSTICE 126-130(1971)(overview of circumstances of justice)
perspective of political theory, globalization is lifting relationships out of the strictly territorial into the “global” or meta-territorial.9 The political and legal significance of this change is immediate and fundamental: as the space in which we conduct our social relations changes, our manner of regulating those relations must change as well. To be effective, regulatory decisions must increasingly involve the meta-state level. Globalization thus requires a fundamental re-examination of social regulation and governance at the global level, leading to a system in which states may still have a preeminent role, but not the only role.10 For our purpose here, we need to understand how globalization is changing the nature of social relations, at the national and at the “global” levels, and paving the way for global community, and for global justice, even on stringent communitarian terms. 11 This change has a fundamental impact on the possibilities open to international law. First, globalization is bringing about at the global level the conditions which make justice both possible, and necessary, at the domestic level, which Rawls calls the circumstances of justice.12 Rawls lists five circumstances: a moderate scarcity of resources, a shared geographical territory, a capacity to help or harm each other, and, subjectively, that people are both non-altruistic, and hold conflicting claims. 13 The key point is that globalization is bringing about the same circumstances of justice at the global level, which Rawls described at the domestic level. To begin with, 9 Id.; see generally GLOBAL TRANSFORMATIONS (HELD, ET AL. EDS 1999) (reviewing evolution of metastate institutions). 10 See, e.g., ANNE MARIE SLAUGHTER, A NEW WORLD ORDER (2004); MANUEL CASTELLS, THE RISE OF THE NETWORK SOCIETY (1996). 11 My treatment here draws on a fuller exposition of these issues, in “Globalization, Global Community, and the Possibility of Global Justice,” available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=661564. 12 JOHN RAWLS, A THEORY OF JUSTICE 126-130 (1971) (overview of circumstances of justice). 13 Id. 4