Legal Aspects of Globalization Research Paper

Even at the end of the nineteenth century, at a time when liberal political theory had imposed the equation among nation, state, and law, the idea of a global or world law continued to flourish as a legal subculture. Though cultivated at the time mainly by legal comparativists who were quite marginal to mainstream legal science, this legal subculture was part and parcel of a widely hegemonic cultural constellation, the idea of the seamless and irreversible uniformization of the conditions of social life throughout the world brought about by progress, capitalism, and scientific and technological development. In contrast with earlier movements for transnationalization that were the products of an intellectual crusade by well-meaning jurists and philosophers, the transnationalization of the legal field at the beginning of the twenty-first century is promoted by multinational corporations, practicing lawyers, state bureaucrats, and international institutions, as well as by popular movements and transnational advocacy NGOs. It is an extremely diverse phenomenon combining uniformity with local differentiation, top-down imposition with bottom-up creation, formal declaration with interstitial emergence. It cannot be accounted for by any monocausal explanation and defies integration in any unidimensional cultural postulate, be it the idea of progress or the critique of progress, capitalist mass culture or anticapitalist popular culture, modern science, or postmodern knowledge. It mirrors the complexity and ambiguity of the much broader seemingly all-encompassing process of transnationalization, of which it is only a very partial manifestation. Seven major types of legal globalization may be distinguished.

2. Transnationalization Of Nation-State Regulation

Transnationalization of nation-state legal regulation refers to changes in the state law of a given country that have been decisively influenced by formal or informal international pressures by other states, international agencies or other transnational actors. Despite the fact that the impact of the international context on nation-state legal regulation is inherent to the interstate system and can be traced back to the Westphalia Treaty itself (1648), the current process of transnationalization of state legal regulation seems to be a qualitatively new phenomenon for two main reasons. First, it is a very broad and far-reaching phenomenon covering a wide range of state intervention and calling for drastic changes in the pattern of intervention. The core pressure is relatively monolithic as it stems from the ‘Washington consensus,’ in whose terms the market oriented development model is the only feasible model for a new global regime of accumulation and, accordingly, the structural adjustment it calls for must be carried out worldwide. Other pressures reinforce it, such as the end of the Cold War, the dramatic innovations in communication and information technologies, the new systems of flexible production, the emergence of regional blocs, a newly packaged ideological mix of economic liberalism, and liberal democracy. The scope of these pressures is wider ranging than previous processes of transnationalization, because the current ones take place after decades of active state regulation of the economy in core, peripheral, and semiperipheral countries. The creation of the ‘market friendly’ model involves massive normative and institutional destruction and construction. The second factor for the novelty of current legal transnationalization is that the asymmetries of transnational power between the core and the periphery of the world system, that is, between the North and the South, are more dramatic today than ever. The sovereignty of the weaker states is now threatened directly not so much by more powerful states, as used to be the case, but rather by international financial agencies and other ‘private’ transnational actors, such as the multinational corporations.

In the field of the economy the legal transnationalization of state law assumes greatest salience. The policies of ‘structural adjustment’ cover an enormous range of economic, commercial, and social intervention of the state, provoking turbulence in wide legal fields and institutional settings. Trade liberalization, privatization of industries and services, agricultural liberalization, dismantling of regulatory agencies and licensing mechanisms, deregulation of the labor market and ‘flexibilization’ of the wage relation, reduction and marketization of social services, less concern with environmental issues, educational reforms geared to job training rather than to citizenship building, family policies that further aggravate the condition of women and children—all these intended or unintended features of the ‘Washington consensus’ require massive legal changes. Because these changes take place at the end of long periods of state intervention in economic and social life (notwithstanding sizable differences across the world system) the shrinking of the state cannot but be achieved by wide-ranging state intervention. The state must intervene in order not to intervene.

3. The Law Of Regional Integration

This type of transnationalization of the legal field occurs whenever a group of states combines to create supernational institutions and legal competences which will assume direct regulatory functions that previously did not exist or, if they did, were performed by the individual states as prerogatives of their sovereign powers. Though there have been attempts at regional integration in different parts of the world system, in South and Southeast Asia, in the Middle East and the Magreb, and in the Americas (lastly, the NAFTA), the European Union remains so far the most advanced instance of regional integration and, for that reason alone, deserves to be singled out. Built over four decades by a mixture of diplomacy and interstate democracy, of intergovernment politics and supranational institutionalism, the EU is today an innovative transnational entity both in legal as well as in political terms.

According to the Treaty of Rome, the balance between the market and regulation was to be accomplished by the member states. The harmonization of laws that should have ensued failed, not only because the member states revealed a nationalistic bias, but also because the legislative processes at the European level suffered recurrent bottlenecks. As a consequence, the European Court of Justice, in cooperation with the Commission, had to assume the role of decision maker, a role that has been very active indeed. Performed both with a federalist and a deregulatory bias, it has favored the Union to the detriment of individual members, and the market to the detriment of the state. This development is significant in itself because it reveals a new dimension of the relations between the legal and the political fields. The judicial engineering carried out by the Court from the 1960s onwards decisively affected the European integration process. Through the doctrines of direct effect and supremacy of the European law, the court ‘constitutionalized’ the community legal structure as a legal order of its own. Much of this occurred without political debate, as a judicial rather than as a political process, which led Weiler (1991) to state the apparent paradox that while European law developed firmly in a continuing process of evolution, the Union went through one political crisis after another.

4. Global Capital’s Own Law: Lex Mercatoria

Understood as a set of customary principles and rules which are widely and uniformly recognized and applied in international transactions, lex mercatoria or law merchant is probably the oldest form of transnationalization of the legal field. Lex mercatoria was a supranational law whose most distinct features were the following: the ease with which it permitted binding contracts; the stress on security of contracts; the speed of adjudication; the variety of mechanisms for establishing, transmitting, and receiving credit; the normative value of customs and usages of the commercial world. Medieval lex mercatoria underwent profound changes in the modern period, which indeed caused its seemingly irreversible decline. On the one hand, as trade expanded and more and more diverse trading communities emerged, customs changed and became more diversified themselves. The diversity of customs made lex mercatoria less predictable, less transparent, and thus vulnerable to the critique of lacking impartiality. On the other hand, as the modern states gained control over their territories, the existence of a deterritorialized law, which did not derive its normative claims from treaties among sovereign states, was viewed as a threat. As a result, merchant courts were often either forbidden or assimilated into the domestic court system, and transnational business customs were made to comply with law. The expansion of transnational practices and the need to protect them legally led the states to develop a private international law. Since this was a national state law and could therefore conflict with the private international law of other states, efforts were made to harmonize these bodies of laws through the creation of international uniform laws.

The scope of uniform laws has always remained very limited and unable to account for the tremendous growth, in number, complexity, and variety, of transnational contracts and other business transactions, especially after World War II. These relationships, which committed generally larger amounts of money for longer periods than domestic relationships ever did, and engaged partners often separated by great distances, and cultural and linguistic differences, had a greater degree of insecurity and required, therefore, a common normative foundation. Such foundation was sought in a deterritorialized set of normative principles and rules, expressed in such formulas as ‘general common principles,’ ‘principles of equity,’ ‘principles of good faith and good will,’ ‘principles of international law,’ ‘international trade usages,’ etc. Because such normative references aimed at circumventing submission to national laws and to the traditional conflicts of law, transnational contracts were deemed to be self-regulatory, subjected only to their own provisions: contrats sans loi, contratti senza legge, rechtsordnunglose Vertrage. In fact, a new supranational legal order was emerging. It was the new lex mercatoria, which was to expand enormously in the last quarter of the twentieth century, by reason of the sheer intensification of transnational transactions and in the wake of a new worldwide regime of accumulation in search of adequate institutional structures. The new lex mercatoria comprises several elements, including general principles of law recognized by commercial nations, rules of international organizations, customs and usages, standard form contracts, and reports of arbitral awards. Though this is disputed, lex mercatoria may be conceived of as comprising also uniform laws and public international law. Concerning the latter, though public international law governs the relations among nation–states, and not among private parties, lex mercatoria shares with it the ‘general principles of law recognized by civilized nations,’ such as pacta sunt ser anda, rebus sic stantibus, and the prohibition of undue enrichment. But the relation between lex mercatoria and public international law may also be conflictual whenever the first is used to create forms of immunity which operate both vis-a-vis the national law and the public international law. As regards international uniform laws, once they have been adopted by the nation-states and become part of the national law, they are not, in themselves, part of lex mercatoria. Before that process of adoption and to the extent that they represent a crystallization of international trade usages, such laws are lex mercatoria.

However informal, the new lex mercatoria is neither amorphous nor neutral, the customs and usages being not necessarily universal and much less traditional or immemorial. The new lex mercatoria, as an emerging transnational legal field, is constituted by thick cognitive expectations and thin normative allegiances reproduced by the routine repetition of myriads of transnational contractual relations originally framed by transnational corporations and their lawyers, international banks, and international organizations dominated by both. Depending on the power relations between the parties and their stakes in the transaction, the new lex mercatoria can operate in either a high rigidity mode (the iron cage mode) or in a high flexibility mode (the rubber cage mode). Even in its rigidity mode, lex mercatoria is often ephemeral, an instantaneous customary law, so to speak, as in the case of a new type of contract drafted by a leading transnational corporation and its lawyers, which must be accepted as drafted by the weaker partner, irrespective of the fact that such contract type may not be used again in its entirety. Two issues raised by lex mercatoria deserve special attention: lex mercatoria and the world system and lex mercatoria and legal cultures.

4.1 Lex Mercatoria And The World System

It has been claimed that transnational contracts are purely contractual in that they contain their own rules of recognition and validation and that, as a result, lex mercatoria is nonpolitical, needing no reference to noncontractual elements to sustain itself as a normative order. Grounded on a legal formalistic reasoning, this conception unduly abstracts from the hierarchies and unequal exchanges that characterize the world system. A relative balance of power between partners in the transactions is only rarely obtainable. In most cases, the dominant practices at the basis of this global law are the practices of the dominant actors. The most prominent among these do indeed enjoy state-like political prerogatives, immunity privileges, special access to political resources (tax incentives, special rights on infrastructures, etc.), and they often negotiate directly with the host states the conditions under which the private transactions will be carried out. The political facilitation made possible by the state is a crucial noncontractual dimension of the transnational contracts.

Since stable property rights are exceedingly difficult to establish across national boundaries, the international extension of capital, which is an original feature of the modern world system, has always been an inherently problematic activity. This interstate legal field, created by the core states and imposed on the semiperipheral and peripheral states, has changed substantially in the last 150 years, but has prevailed as a framing, boundary-setting legal and political structure within which lex mercatoria has evolved apparently unencumbered by noncontractual constrains. The use of overt or covert interventionary force and economic sanctions by the core countries in the case of expropriations or debt renunciations in the periphery and semiperiphery has been for a long time an integral part of an ‘international regime,’ closely reflecting the hierarchies in the world system.

4.2 Lex Mercatoria And Legal Cultures

The internationalization of capital has always been the motor behind the development of lex mercatoria. Lex mercatoria is, thus, basically a transnational business law or, more broadly, an economic law. Within the national legal field, economic law traditionally has been one of the laws most permeable to foreign influences and transplants, an area of law in which the ethos of the national legal cultures has always been less determinant. Not by mere coincidence has this area of law been the area of harmonization, uniformization and conventionalization par excellence. For this reason, and also because of its deterritorialized character, lex mercatoria has often been considered as the expression of a ‘global legal culture,’ a kind of ‘third culture,’ independent of the various national legal cultures and hovering above them in its specific domain.

If a new regime of global capital accumulation is indeed emerging, its most visible institutional features, aside from lex mercatoria itself, are the rise of transnational corporations and the international organizations that back up their activities, the adaptation of the nation-state regulatory legislation according to the transnational finance capital requirements, the globalization of the market for legal services, and the rise of international commerce arbitration. Particularly visible is the American or American-style law firm. It stands at the core of the new international market in consultancy and its rise to prominence contributes to the Americanization of international legal services. The type of juridicization it produces is symbiotic with the economic relations it covers and leads toward the infusion of high level competition and market imperatives in the practice of law itself.

5. Transnational Third Worlds: The Law Of People On The Move

Greatly increased cross-border movements raise myriad sociolegal issues, from international contracts, binational marriages, adoptions of foreign children, legal protection of tourists, and cross-border consumer rights, to civil, political, and social rights of legal and illegal foreign migrant workers, refugees, and asylum seekers. But the international community has paid relatively little attention to the movement of people across national borders, compared with the elaborate regulation of the movements of goods and services. Since traditional international private law only covers a very small number of issues, the international movements of people are in many respects a legal no-man’s land. As a result, the legal protection of human beings remains much more territorialized than the legal protection of goods and services. International movements and interactions of people, thus, imply a net loss of legal protection. The challenges posed by this ‘black hole’ heavily underscore the need to analyze the movements of people across national borders, particularly of those who are less autonomous and run higher risks in moving across borders: migrants and refugees.

5.1 International Migration

The slave trade was the first major form of international migration in the modern world system. From the nineteenth century until the 1960s, a period of dramatic emigration from Europe, the major form of international migration emerged based on migrant recruitment through economic inducements. This form of international labor flow was at mid-point between the coerced labor extraction of the slave trade and the self-initiated or spontaneous flows that came to dominate in more recent years.

The state and the national boundaries it controls have, thus, performed crucial roles in the creation of international migration regimes throughout the history of modern capitalism. This control has become more central lately in light of the convergent impact of two recent trends. On the one hand, the trend of core states to favor, if at all, only temporary migration and only in restrictive terms (available only to those whose skills and expertise are in demand), with the consequent tighter control over borders; on the other hand, the increased pressure to emigrate and the potential for large-scale population movements motivated by the struggle for survival resulting from the immiseration of significant regions of the world system and the growing disparities between the North and the South. Whence the potential increase of illegal, clandestine, or undocumented migration and the consequent strengthening of the receiving states as monopoly holders of the legal status of migrants and of migrant life chances and expectations attached to it.

No international consensus has been reached on the possible terms of a compromise between the principles of international human rights applicable to nationals and nonnationals, and to legal and illegal aliens, on the one hand, and the principles of territorial sovereignty, on the other; in other words, no international migration regime has come into existence.

5.2 Refugees And Displaced People

As in the case of undocumented migrant workers, refugees concern us insofar as they raise specific new issues in the broad conceptualization of the transnationalization of the legal field outlined here. Such issues have to do, in this case, with two clear-cut distinctions upon which the international refugee regime was built in the postwar period: between voluntary and involuntary international migration, on the one hand, and between economically motivated and politically motivated migration, on the other. These two distinctions have collapsed in recent years, thereby producing new inadequacies between the hegemonic principles of territorial sovereignty and the dynamics of transnational movements.

According to the United Nations Convention of 1951 and 1967, a refugee is any person who, ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality or being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’ This definition excludes most of the world’s displaced populations who are mainly victims of massive conflicts, human rights abuses, civil wars, external aggression and occupation, foreign domination, etc. Since they have not been personally persecuted and often have not crossed borders, they are not entitled to the refugee status, even though the political nature of the causes of their flight offers no doubt. They are considered internally ‘displaced persons’ and at the most may receive some humanitarian assistance. The core countries repeatedly have expressed their opposition to an expansion of the concept of refugee; in recent years, when confronted with the potential rise of applications for asylum, they have even adopted more restrictive legislation on (or rather, against) refugees and asylum seekers.

The last three decades of the twentieth century have witnessed other ‘involuntary’ flows of people still more at odds with international and domestic refugee legislation: hundreds of thousands of people fleeing from famine, starvation, and natural disasters (droughts, earthquakes, volcano eruptions). In many cases extreme poverty and environmental crises have acted together with civil war or political repression to provoke massive displacements of people. In these dramatic situations the distinction between economic and political factors have been blurred, if not totally dissolved.

One type of ‘involuntary’ transnational migration is most likely to grow in the coming years. It will be caused by environmental catastrophes, directly or indirectly caused by anthropogenic climate changes and often coupled with over-population. Refugees will be environmental refugees, seeking ecological asylum. Environmental refugees occupy the outer fringes of a generally precarious system of international protection. Environmental refugees are most likely to collide with the territorial logic underlying social protection as a matter of right.

The high vulnerability of refugees derives from a double adverse condition. On the one side, international human rights applicable to them are highly restricted by a highly restrictive definition of refugees that leaves out most of the current and massive situations of forced migration. On the other side, the few rights they are entitled to are grossly violated with almost total impunity. Refugees are often confined to camps and detention centers where, aside from the lack of freedom of movement and access to the outside world, refugees are subjected to the most degrading human conditions.

6. Ancient Grievances And New Solidarities: The Law Of Indigenous People

The collective rights of indigenous peoples, is surely an old issue—at least, as old as European expansion from the fifteenth century onwards—which, however, gained a new prominence in the last quarter of the twentieth century. This new prominence is due to a transnational-local linkage which has to do with the most recent step of the secular trend of capitalist world economy to incorporate the whole planet, even its most remote regions, in the process of capital accumulation. As a result, many indigenous peoples saw their traditional lifestyles, customary rights, and peasant economies threatened by new or more powerful development claims by multinational corporations or the national state or, in most cases, the two combined. They represent another and probably more powerful wave of imperial globalization. One of its specific features is the extent to which the national state itself intervenes as a transnational actor. Pressed by the ‘Washington consensus’ on debt, stabilization, and structural adjustment, the peripheral and semiperipheral states embark in new ‘development projects,’ often in joint ventures with transnational corporations and with the support of international financial institutions, be they extractive—oil, minerals, biodiversity—agro-industrial, road construction, or hydroelectric projects. Some of these projects are to be carried out on indigenous lands, further destroying their traditional lifestyles and economies, forcing them into new and massive relocations.

What is truly new in the new prominence of the indigenous question is the emergence of a transformative, transnational coalition consisting of indigenous and nonindigenous NGOs, which have been drawing the attention of world public opinion to the violations of indigenous historical rights and pressing both international organizations and the national states to condemn the violations, stop the destruction, and take active measures to effectively right (or begin to right) such massive historical wrongdoing. The struggles of the indigenous peoples thereby are trans nationalized. The legal dimension of this transnational transformative action lies in the struggle for the transnational recognition of indigenous collective rights and local autonomous legal regulation within territorially defined areas.

7. Cosmopolitanism And Human Rights

In the post-World War II period a new cosmopolitan, legal culture emerged out of a transnational understanding of human suffering and the transnational constellation of progressive (legal, political, humanitarian) social actions devised to minimize it; it has gradually evolved into an international human rights regime supported by transnational coalitions of local, national and transnational nongovernmental organizations, which have been growing dramatically, in number, range, and effectiveness in recent years.

The international human rights regime is built around three major documents and sets of standards which together comprise ‘the global human rights regime,’ a system of rules and implementation procedures centered on the United Nations, and whose main organs are the UN Commission on Human Rights and the Human Rights Committee.

This global human rights regime allows for internal differentiation across the interstate system. Four regional subregimes usually are identified and ranked as follows by decreasing order of strength: the European, the Inter-American, the African, and the Asian and Middle-Eastern (lack of ) regime. What distinguishes the European regime—established by the members of the Council of Europe in 1950—is the very strong monitoring powers of the European Commission of Human Rights and the binding decision-making powers of the European Court of Human Rights. Without questioning the overall strength of the European human rights regime when analyzed in comparative terms, one of its weaknesses, which is indeed bound to expand in the coming years, refers to the massive violations of human rights that may be in store for noncommunity citizens, as the internal borders are eliminated and the external borders strengthened.

The Inter-American regime is substantively narrower than the European one. Similarly to the European regime, its main organs are the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights. In practice, however, the two institutions have been operating very differently from their European counterparts. As to the African regime, the African Charter on Human and Peoples’ Rights (1981) contains two major innovations: as the title of the Charter itself indicates, to individual human rights it adds collective rights, as well as the right to development; it also introduces the concept of duty of individuals vis-a-vis the family, the community, and the state, but the provisions that establish the African Commission on Human and Peoples’ Rights are exceedingly vague, conferring it no enforcement powers of any sort and only very modest investigatory powers, and there is no regional human rights court. Though in Asia and The Middle East the human rights debate is widening and deepening, there are, among other reasons, important cultural barriers to the establishment of a human rights regime. Human rights are often viewed as an exotic, foreign, Western conception whose worldwide circulation is nothing but a manifestation of the overall cultural imperialism of the West.

International regimes refer to international normative consensuses among nation-states and, as such, they raise two interrelated questions: the extent to which the normative consensus collapses whenever the overriding imperatives of national sovereignty are considered to be better served by the violation of human rights; and the extent to which the inherent statism of implementation and enforcement mechanisms stays in the way of the emergence of new international legal subjects with a more cosmopolitan orientation and a transnational advocacy of greater efficiency. The optimist predictions of a brighter future for human rights, in the wake of democratic transitions and the collapse of the communist bloc, may prove to be displaced and utterly wrong themselves.

8. The Global Commons: Jus Humanitatis

Of all forms of transnational legality jus humanitatis is the one that pushes the idea of globalization further, for it takes the globe itself as the object of its regulation. Jus humanitatis expresses the aspiration to a form of governance of natural or cultural resources which, given their extreme importance for the sustainability and quality of life on earth, must be considered as globally owned and managed in the interest of humankind as a whole, both present and future. In this sense, jus humanitatis clashes with two fundamental principles of the dominant paradigm: property, upon which the capitalist world system is based; and sovereignty, upon which the interstate system is based. Little wonder, then, that its application has been so little so far. Nevertheless, its prolegomena are already quite visible in the doctrine of the common heritage of humankind that has been adopted by international law. Though the doctrine has its own limitations, it is grounded on principles which, were they to be fully developed, would bring about the bankruptcy of the dominant paradigm, and hence of international law itself as it is conceived today.

The concept of the common heritage of humankind was formulated for the first time in 1967 by Malta’s Ambassador to the United Nations, Pardo (1968), in relation to UN negotiations on the international regulation of the oceans and the deep seabed. Pardo’s purpose was ‘to provide a solid basis for future worldwide cooperation … through the acceptance by the international community of a new principle of international law … that the seabed and ocean floor and their subsoil have a special status as a common heritage of mankind and as such should be reserved exclusively for peaceful purposes and administered by an international authority for the benefit of all peoples.’ Since then, the concept of the common heritage of humankind has been applied not only to the ocean floor but also to other ‘common areas’ such as the moon, outer space, and Antarctica. Five elements usually are associated with the concept of the common heritage of humankind: nonappropriation; management by all peoples; international sharing of the benefits obtained from the exploitation of natural resources; peaceful use, including freedom of scientific research for the benefit of all peoples; conservation for future generations.

The concept of the common heritage of humankind transcends by far the field of traditional international law. International law deals traditionally with international relations among nation-states, which are supposed to be the main beneficiaries of the regulation agreed upon. Such relations are based chiefly on reciprocity, that is, granting advantages to another state or states in return for equivalent advantages for oneself. The concept of the common heritage of humankind is different from traditional international law on two accounts: as far as the common heritage of humankind is concerned, there is no question of reciprocity; and the interests to be safeguarded are the interests of humankind as a whole, rather than the interests of states. The Law of the Sea Convention, signed in Montego Bay on December 10, 1982, contains in part XI the most developed formulation of the concept of the common heritage of humankind to date.

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