1 Politics
Globalization is not only an objective process; it is also a normative concept. As an objective process, internationalization coexists with a significant degree of denationalization in such areas as economics, politics (liberalization, and the loss of power of the sovereign state in favour of international companies), and morality. As a normative process, it to some extent indicates those substantive matters that require attention so as to be better incorporated into the legal order, through consensus, real practice, or by means of adjudication. In the political context, globalization is generally normative when approached from an economic point of view, as a concept that promotes global and economic welfare as a matter of fact. It provides a stimulus to denationalize markets and laws. And it reveals the normative character of a liberal economic process when compared to a classical understanding of political sovereignty.
In other words, institutions like the WTO, the World Bank, and the IMF, powerfully compel nations to draft laws and structure boundaries in such a way as legally to open their national economies; these national economies are then integrated into the financial and trade regimes that are established by the Global Economic Order 388, which is, in turn, driven, of course, by economic theory. National laws are not able to assert control over the denationalized economic activities conducted by transnational corporations. By contrast, globalization is seldom approached normatively by politicians and international law makers, at least not from an efficient, universal human rights perspective. For this reason, academics and human rights advocates attempt to include
387 See Heinrich W Ursprung, “Globalization and the welfare state” The New Palgrave Dictionary of Economics Steven N Durlauf and L E Blume, 2008 (2nd edition) Vol. 3, p. 687 et seq. Economic globalization has two main aspects one regarding production/commutative justice and the other regarding distribution/distributional justice. Today, the distributional aspect is not only the concern of the weak, less developed or underdeveloped economies, but has reached welfare states. Liberalization and laissez-faire are deemed to jeopardize the ability of the national state to finance welfare state activities. i.e.
“liberalization of international transactions renders tax bases increasingly footloose, which induces a global tax race to the bottom”.
388 Kort de Joop, “What’s in it for us? Globalisation, international institutions and the less developed countries” in Neo-Liberal Globalism and Social Sustainable Globalisation E C Nieuwenhuys, 2006.
in international political discourse a discussion of those social issues provoked by globalization. Similarly, the process of change requires rules that adjust adequately to the new global reality so as to formulate global solutions that include not only economic but also moral and humanitarian concerns. Two essential questions must therefore be posed: what kind of globalization do we want and, in function of our answer, what kind of legal reasoning and legal framework is appropriate.
2 Law
In light of the above, we can affirm that the process of globalization is not only complex and dynamic in the economic and social spheres but also in its political and legal dimensions. In fact, the legal antecedents of globalization may be traced back to the 19th Century.389 Globalization has introduced a highly significant level of change in the international arena. A milestone in the evolution of Public International Law was when the state-centric classical model of international law, pre-1945, based on sovereignty, legal equality, and non-intervention, began to erode. It did so with the creation of the United Nations, especially in the areas of security (peace), human rights (universality and equality) and development (new economic order). Simultaneously, the creation of the World Bank and the International Monetary Fund in 1944, as well as the creation of the General Agreement on Tariffs and Trade (GATT 1947), replaced in 1995 by the World Trade Organization (GATT 1994), also contributed to a gradual shift, even decline, in the fundamental basics of classical public international law. However, the focus of these economic institutions was and is not humanitarian, in the sense of social justice; rather, they have worked out rules relative to economic justice alone. These
389 Kolb, above note 381, p. 69 et seq. According to this author, a first step towards the globalization of public international law can be traced back to the 19th century with the admission of a new non-European, non-Christian states to the international community (rationa personae universalization of international law). A second step was made with the emergence of the League of Nations and the proposition of a novel political organization based on the principles of peace, the rule of law and order. For the first time the common interests of humanity were enclosed in a sort of constitutional body across the barriers of domestic affairs. At this stage of the continuum process of universalization in international law two aspects are highly noticeable, namely, the consolidation of an international objective legal order and the emergence of an international law of cooperation besides an already existing law of coexistence. By that time, the appearance of an international law of cooperation besides an international law of coexistence rendered the principle of sovereignty more controversial as states became more interdependent. The next period is marked by the communitization of international law. Due to the increment of new independent states after 1945, the new variety of international players and the improvements of technical developments, the international community looked for a for form of organization in which some common international interest prevail over the national e.g. the principles of the UN Charter, the advent of concepts like ius cogens or obligations erga omnes.A last period corresponds to actuality in which we can appreciate a big contraction in the equilibrium of power marked by unilateralism, this is the logical result of the interacting set of ideas and human action globally enhanced by human progress in general.
highly efficient international institutions, the WTO in particular, were created to regulate access to international markets. They necessarily limit state intervention in several economic areas, such as customs, services, and intellectual property, as well as in non-economic matters, such as the environment, labour, health care, and morality.390 Some authors even speak of a global economic law.391 However, efforts at a social globalization have been hampered by administrative inefficiency and empty rhetoric.
One thinks, for example, of the World Commission on the Social Dimension of Globalization, established by the ILO. That notwithstanding, these institutional developments represent a genuine augmentation of international treaty law-making, not to mention the creation of international judicial and quasi-judicial bodies, such as the ICC and ITLOS, or the DSB at the WTO, or the International Centre for for Settlement of Investment Disputes (ICSID), all of which reflect current trends regarding adjudication in International Public Law. Therefore, one consequence of globalization upon international law is the objective interweaving of domestic and international law.
This has resulted in the existence of a complex transnational society.392 And this complex transnational society has already erected regulatory frameworks containing diverging normative principles, such as utilitarianism in economic law, and human dignity in human rights law.
3 Justice
The questions of social justice and the sustainability of globalization have occupied much attention in public debate, independently of the question of whether or not globalization is even desirable. One key criticism of to economic globalization is that a system of laissez faire free markets and international free trade conflicts with the achievement of certain basic objectives of the international community, such as the protection, promotion, and realization of human rights, and a respect for non-economic values that contribute towards protection of the environment. Social issues are commonly regarded by the political elites as "interfering with business and free market conditions."393 Therefore, it is argued that the international community requires a
390 Kadelbach, aboev note 380, p. 38.
391 Hans Ullrich, “La mondialisation du droit économique: vers un novel ordre public économique.
Rapport introductive” Revue Internationale de Droit Économique”, 2003, pp. 291-311.
392 Kolb, above note 381, p. 69 et seq.
393 Gertrude Roebeling, “Economic Globalization, civil society and rights” in Dignity and Human Rights:
The implementation of economic, social and cultural rights B Klein G, A Contreras B, P C Carbonari (eds.), 2002.
regulatory framework in which the actions of international players and individual beneficiaries of the system could be based upon an efficient legal framework that aspires to minimum standards of living, both within the economic and the social spheres. It is what is referred to as "the social dimension of globalization". This normative social dimension of globalization includes respect for universally shared values, a commitment to fight poverty in order to meet basic human needs, and, finally, an undertaking to provide the individual with the necessary conditions and opportunities for his development so that they may live autonomously and with dignity.
In light of economic assumptions and theories, neo-liberalism and the economic sciences in general have reshaped and redefined the concepts of social justice, freedom, democracy, progress, and development. Moral questions are also studied and regulated from the perspective of economic values, even as moral philosophers and ethicists criticize the egoistic homo economicus, who is motivated by self-interest, and who thinks purely in terms of economic efficiency.394 Advocates of social justice and cultural globalization see morality as an enhancement of positive commitments beyond mere utilitarian or economic normativity and self-interest; in the final analysis, it is a question of respect for and realization of human dignity. The ethical basis of fair globalization is grounded, from a legal perspective, in a series of treaties at regional and global level that range from the UN Charter and Bill of Rights, to a series of UN documents and resolutions that may be considered as soft law sources.395 At the core of these sources are common concepts of human dignity, the material and spiritual well-being of humanity, as well as such structural notions as international cooperation and global governance.396 Moreover, such international legal concepts as sustainable development and primary environmental protection are also linked to development and human rights. In other words, ethical aspects other than those derived from economic morality must also form part of an overall understanding of legal globalization. Deeper reflection on the insights of economic theory reveals that economic behavior has also an ethical aspect, such that economic regulation does not escape the deontological aspects of the law.
394 Eva Nieuwenhuys, “Neo-liberal Globalism and Social Sustainable Globalization” 2006, p. 61.
395 Millennium Declaration UNGA A/RES/55/2; See also World Summit for Social Development and beyond achieving social development for all in a globalizing world UNGA A/RES/S-24/2 15 December 2000 See also In Larger Freedom, World Summit (2005). 21 March 2005, UN Doc. A/59/2005.
396 Pascal Lamy, “Humanising Globalisation” Speech. Santiago de Chile 30 January 2006 available at http://wto.org/english/news_e/sppl_e/sppl16_e.htm last visited 02.July.2012.
4 Ethics
Globalization is often considered a menace to individual and collective moral conviction. Is there any conflict of goals between economic efficiency and moral fairness? Are these two concepts in opposition? Or do they rather complement each other? What is the advantage of integrating economies and societies? Justice, equity, and fairness in a global sense are developed by conceptions of global ethics. A global or universal ethics, articulated in law, has already begun to take shape. We speak about human rights. Truly, human rights doctrine is a moral theory that places universal human rights at the heart of international law. Human rights are the vehicle for the clearest expression of a universal morality and a global ethic.397 The difficulty here is the question of who possesses legitimacy to develop the necessary legal regime for a global and universal community that facilitates peaceful and flourishing human interaction? In general, social scientists and legal scholars agree that consensus is the right basis on which to establish universal norms of justice. Consensus is a fundamentally important way to establish and acknowledge ethical validity; it brings objective values to the international legal order. However, legislative action alone is not always sufficient to correct legal norms that may have been introduced for purely economic reasons. For this reason, the function of the international judiciary must also be to take account of the environment in which the rules, including moral values, are to be applied and interpreted.
5 Judicial Power
It has been observed that legal globalization results in a judicialization of international relations. Global judicialization is characterized by four key elements: first, the increase in international judicial and quasi-judicial bodies; second, the extraterritoriality of national judicial systems assuming jurisdiction in deciding transnational and international cases; third, a steady increase in international arbitration between states, private persons and states, and private persons; fourth, an international network of judges in a context of various mechanisms of cooperation and coordination. 398 The judge, while performing his duty, promotes the inter-dependence of different national
397 See contributions in “Economic Globalization and Human Rights” W Benedek, K de Feyter, F Marrella (eds.), 2007.
398 Miguel Poiares Maduro, “Legal Travels and the Risk of Legal Jet-Lag. The Judicial and Constitutional Challenges of Legal Globalization” in Economic Law and Justice in Times of Globalization M Monti, B Versterdorf, N Von und Zu Lichtenstein, J Westbrook, L Wildhaber (eds.), 2007, p. 175.
and international legal orders. He acts as a mediator among different legal orders. In this light, the judge becomes an active player in global governance. The coherence and integrity of international law demands that judges deliver their judicial decisions in international terms.
CHAPTER 2 CONCEPT