Monday, May 21, 2012

Globalisation and Sovereignty - Incompatible or Complementary?

The Library of Law and Liberty website referred to in an Opinio Juris piece had an interesting debate on the interplay of sovereignty, globalisation and international law. It is often argued that globalisation characterised by increasing inter-connectedness and international trade rules has a devastating impact on nation states and domestic, national sovereignty. The WTO and other international institutions are often accused of trampling on national autonomy and domestic regulatory space.

John Yoo in his "Debating Sovereignty: Globalisation, International Law and the United States COnstitution" argues that globalisation and the rise of international economic orders characterised by the WTO and other institutions has a devastating impact on sovereignty and national autonomy. He states:
"These efforts aim at nothing less than the erosion of American national sovereignty. Anne-Marie Slaughter, a former Princeton dean and Obama State Department Official, argues that networks of foreign and international officials and institutions will develop independent, common legal standards that will be imposed on nations.  According to her, “where the defining features of the international system are connection rather than separation, interaction rather than isolation, and institutions rather than free space, sovereignty as autonomy makes no sense.” Or, as Harvard scholars Abram and Antonia Chayes have written a “new sovereignty” has emerged where the international order is governed not by independent nation-states but by a “tightly woven fabric of international agreements, organizations, and institutions that shape their relations with one another and penetrate deeply into their internal economics and politics.”
These responses to globalization pose the most direct challenges to the fundamental principle underlying the system of government in the United States: popular sovereignty. Unlike other nations, which locate ultimate power in a nation, in a monarch, or in a government, the U.S. Constitution locates sovereignty in the People of the United States.  The various institutions of the U.S. government are merely agents of the People, whose powers are delegated exclusively through the U.S. Constitution. The American people hardwired two principles into the U.S. Constitution’s structure: the separation of powers and federalism."
Arguing for the balance of globalisation with the traditional constitutional scheme in the US of separation of powers and federalism,  he concludes:
America’s decentralized government, both between the national and state governments and between the executive, legislative, and judicial branches, discourages a rush into radical reforms or sweeping alterations of the basic rules of the political system. The American Constitution may allow grievous injustices—such as slavery and segregation—to persist for long periods of time, but it also creates a risk-averse political system that prevents the United States from swinging wildly in one direction or another. Altering federalism and the separation of powers to allow for greater international cooperation may seem desirable now, but the long-term benefits may not exceed the costs, if those costs are likely to weaken the Constitution’s governing principles in domestic affairs. The American system can accommodate the demands of globalization within existing doctrines of the separation of powers and federalism, but with some difficulty. That is worth the price to preserve the constitutional principles that have served the nation so well, for so long."
Roger Alford in response in his piece titled "Bolstering American Sovereignty with Treaties" provides a divergent view stating that international law, globalisation and international treaties are not a threat to national sovereignty. In fact they epitomise the effectuation of national will.
"While there are legitimate concerns about a nascent global administrative state, one should recognize that treaties are rarely a threat to national sovereignty.  Indeed, treaties should be seen as an expression of sovereign will to protect and advance our national interests.
Treaties are optional commitments, freely entered into by political actors in order to achieve mutually-beneficial results.  Like contracts, the first principle of treaties is party autonomy.
Sovereign nations negotiate the terms of a treaty and ultimately decide whether or not to join a treaty.  The United States, for example, was intimately involved in the drafting of the treaty establishing the International Criminal Court, but ultimately decided not to become a member because the final text included unacceptable terms.  The same could be said of dozens of other treaties"
Referring to the WTO and sufficient domestic space to protect national interests and sovereignty, he continues:
"The WTO and many bilateral investment treaties have incorporated self-judging national security exceptions, essentially rendering key questions of national sovereignty non-justiciable political questions beyond the purview of international courts.  The WTO also designed the dispute settlement process in a manner that anticipates the possibility that member states will rationally decide to engage in an efficient breach of their obligations."
Strongly supporting international treaties and their minimal influence on national sovereignty, he concludes:
In conclusion, we have little to fear from treaties.  Treaties are hardwired to protect national sovereignty.  The process of formation, performance and termination of treaties was designed to advance sovereign interests.  Occasionally there are unanticipated consequences that flow from adherence to treaties, but these risks to sovereignty are manageable.  Widespread adherence to treaties reflects a political calculus that the benefits of membership outweigh the costs."
Finally, John Cerone in his piece titled "Facilitating and not Hindering American Compliance with International Law" sees no contradiction between international law and national constitutional order.
"Today’s international legal system is a strongly positivist, consent-based system.  In general, states are not bound by any rules of international law that they have not themselves created or otherwise consented to.  While states have chosen to greatly expand the scope and substance of international law, most of its rules remain in the form of broadly formulated obligations that leave the manner of their implementation in the broad discretion of states."
It would be interesting to study the impact of international law, especially international trade law in the context of constitutional systems and federal structures. Federalism and democratic decentralisation bring in multiple levels of decision making and autonomy. How are international treaty obligations to be viewed in this context? In the Indian context, the Constitution of India is the supreme law of the land. How are international trade rules and their impact on domestic legislation to be viewed in context of the supremacy of the Indian Constitution? Can the domestic courts interpret international trade law in the context of a challenge to a domestic law? What rules of interpretation would they have to adopt? What if it goes contrary to the decisions of the WTO dispute resolution bodies? The interplay of constitutional law, federalism, national sovereignty and international law is definitely an interesting mix open to myriad interpretative journeys!

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