Inhoudsopgave
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, Public international law
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, Chapter 1: international law in times of globalization,
antiglobalism, contestation, nationalism and populism
1 Globalization: a few facts
Definition of globalization = process of international integration based on the increasing
exchange of ideas, products and culture
- + increasing international mobility of persons
- Linked with progress in automatization, deregulation, telecommunication and transport
Definition of globalization by David Held: “Globalization may be thought of as a process (or
set of processes) which embodies a transformation in the spatial organization of social relations
and transactions – assessed in terms of their extensity, intensity, velocity and impact –
generating transcontinental or interregional flows and networks of activity, interaction, and the
exercise of power”
- Extensity, intensity, velocity of interconnections
- Globalization is not new
- Interlinkages on economic, social and cultural level: towards deterritorialized relations
3 sets of facts:
- Economic interdependence
o Planning-based centralized economies in the communist countries >< free market
economies in the western countries now most of the world has become free
market economies
o FDI (= foreign direct investments) at record heights
Setting up companies abroad for lower salaries by reorganizing the
commercial cycle from the assembling, the production, the conception of
ideas, marketing, sales, etc… The business models have completely
changed because of globalization
o Businesses becoming highly trans-nationalized (MNEs)
o Financial crises: 1990s (Asia, Pacific and South-America), 2008 – (US, Europe,
…)
o Quick economic power shift to Asia (China, Japan…)
Asia is the world’s big factory right now and this has an effect on the
supply chains
o Growing income differentials and social exclusion: the ‘leave no-one behind’ in
Agenda 2030 / Social Development Goals (SDGs)
o Increasing ‘Global Value Chains’ (GVC) – and their decoupling post-Covid
- Environmental interdependence
o Butterfly effect as used by Kofi Annan in his acceptance speech of the Nobel
Prize
o Serious challenges for energy supply, drinking water, food, and raw materials
o Climate change: weather volatility, extreme heat and drought, rising sea levels,
decline of ecosystems, extinction of species
o Accelerating pace of urbanization
- Human interdependence
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, o “A crowded place”: 9.7 billion people in 2050, growing increasingly old (high state
expenditure), mostly living in cities
o Eg. The world population on the one hand (mostly developed countries) will grow
increasingly, old but a correlation of becoming old is that the state, social security
systems will face incredible expenditures. On the other hand (mostly developing
countries) the global population is becoming younger and younger. The amount
young people between 10 and 24 comprises 28% of the world population and
growing.
o Largest share of adolescents = Asia (> 235 million in India, 225 million in China)
and sub-Saharan Africa (70% < 30 yrs + > 100 million jobless)
o Migration flows intensify: conflicts, economic / climate refugees
o Eg. failed states: international law is premised upon functioning states. States are
supposed to be the pillars of the international legal system. The whole system is
underpinned by the idea of a state that is able to assume its internal and external
responsibilities. The problem is, quite a number of states are not doing that
Somalia, Afghanistan…: no government, no central government, total chaos and
violence and terrorist movements.
o International terrorism, 9/11 and 13/11, the rise of IS, “areas of limited statehood”
2 Contestation: anti-globalism, nationalism,
populism
2.1 Rise of contestation
- Definition of contestation: in international relations […] involves the range of social
practices which discursively express disapproval of norms’ (A. Wiener, A Theory of
Contestation, 2014, 1)
o Actors in international relations and law who disagree with existing norms, who do not
like the existing international institutions
o Eg countries refuse to participate in existing international organization and treaties
Rome Statute on the ICC and states dropping out and non-membership of big powers
(Russia, China, USA)
- ‘Contestation, by challenging international normative principles, may be assumed to
constitute the main stumbling block for cooperation’ (Connectivity 2018), especially when
discourse ‘meets’ contestation practice of actors in international relations, such as:
o Non-participation in international organizations and treaties (e.g. ICC)
o Withdrawal from organizations in the UN system and agreements (e.g. UNHRC,
UNESCO, Paris Climate Agreement)
o Non-support of international organizations (e.g. WTO)
WTO Appellate Body, the main traditional instance of the WTO, vital for WTO-
dispute settlement in desuetude since it only has one member with a mandate
left since September 2019 so it cannot function anymore.
o Rise of institutional alternatives to the established multilateral order (e.g. AIIB)
Ex. Alternative international institutions created by China. China’s frustration
with the IMF and the World Bank grew because those are indeed
organizations where the West has traditionally had the power. There is even a
strange deal that an American citizen will be president of the World Bank and
a European always will be DG of the IMF. China has always felt that it was not
taking seriously enough within those two institutions and created the AIIB
(Asian Infrastructure and Investment Bank), very closely tailored upon the
model of the World Bank or other international investment banks, only with a
much more powerful position for China.
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,2.2 Rise of anti-globalism
- Contestation can include anti-globalist perspectives
o Anti-globalism can be seen as a form of contestation against globalization and forms
of global governance that accelerate and/or regulate global processes through multi-
level cooperation and policies
- Anti-globalism can be both expressed by non-governmental and governmental actors,
for example:
o Anti-globalist discourse and practice can be seen in non-governmental movements
against policies and practice of international cooperation, such as the WTO, G7/8 and
G20 or Free Trade Agreements (see Seattle 1999, CETA)
o Anti-globalist thought and practice can also be identified amongst governmental
actors in their efforts to withdraw from the liberal economic world order based on the
idea of overcoming trade barriers (‘economic nationalism’)
2.3 (Re-) Rise of nationalism
- Economic nationalism: Trump’s ‘America First’ and Biden’s ‘Buy American’/americanization
of supply lines
- Political nationalism:
o Putin’s Russia
Annexation of Crimea / war against Ukraine
o Xi’s China: South-China Sea, Hong Kong and Taiwan
China has basically imprisoned two Canadian diplomats because two years
ago Canada basically answered to a request for extradition from the US for
the daughter of a CEO. So very aggressive actions and a big difference in
tone and attitude compared to China in the past
o Modi’s India: hindu nationalism created big tensions with the muslim population
o Bolsonaro’s Brasil
o In Europe: Hungary, Poland
2.4 Rise of populism
4 definitions on populism
- “A thin-centered ideology that considers society to be ultimately separated into two
homogenous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite,’ and which
argues that politics should be an expression of the volonté générale (general will) of the
people” (Mudde 2004)
- “An illiberal democratic response against an undemocratic liberalism” (Mudde 2015)
- “A political strategy through which a personalistic leader seeks or exercises government
power based on direct, unmediated, uninstitutionalized support from large numbers of mostly
unorganized followers” (Weyland 2011)
- “Ideology or political movement that mobilizes the population (often, but not always, the lower
classes) against an institution or government, usually in the defense of the underdog or the
wronged. Whether of left, right, or middle political persuasion, it seeks to unite the uncorrupt
and the unsophisticated (the 'little man') against the corrupt dominant elites (usually the
orthodox politicians) and their camp followers (usually the rich and the intellectuals)”
(Business Dictionary)
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,Populism = the idea that societies fundamentally split in two antagonistic groups, the elite, which
is corrupt and liberal and the good, hardworking people, totally alienated from that elite. They see
themselves as a legitimate democratic force. Experts are suspicious, everybody working for
international organizations are suspicious because they all work for the establishment. A
charismatic leader is essential for populism, able to attract huge support from crowds and wants
to exercise power without too much involvement of the corrupt classical institutions.
2.5 Globalization
Bertelsmann Foundation: “it is mainly the fear of globalization that drives some to go away from
the political mainstream and turn to the populist parties” (2016)
- The fear of globalization drives people away from mainstream politics to populist parties.
This is very deeply anchored in the fear of people for all the effects of globalization
- Where do we see populism affecting globalization and international law?
o Brexit referendum UK 23 June 2016 – UKIP/Nigel Farage
o Presidential election US Nov 2016 – Trump administration
o Recent elections in Europe
NL Geert Wilders (Freedom Party), Thierry Baudet (Forum for
Democracy)
FR Marine Le Pen
IT Cinque Stelle, League (Matteo Salvini), Giorgia Meloni (“Italy and
Italians first”)
D Alternative für Deutschland
3 A few consequences
3.1 Horizontal challenge
Horizontal challenges for the Western model and the post-WW II world order: a world in flux
- After Cold War: optimism about the end of history, the idea that the West had won, the
liberal order has created, Western victory obtained. However, new rise of authoritarian
systems, blended in capitalism
o China: communist country ruled by a rather authoritarian regime, rooted in
capitalism and globalism
o Russia: liberalized, privatized, but more and more authoritarian
- Raise of authoritarian state-capitalistic powers: BRICS (Brazil, Russia, India, China,
South-Africa) they are clustering in a sort of anti-Western block of countries
3.2 Vertical challenge
Proliferation of non-state actors and networks: vertical challenges for States
- A challenge for states and sovereignty of states in PIL: enormous expansion of non-state
actors, IOs, transnational civil society, multinational enterprises, media, religious
organizations creating their own developments and dynamics and challenging the
sovereignty of a state
- Rise of global governance in 1990s
o Broaden up our analysis by talking about governance and not about governments.
It is trying to capture the rise of non-state actors and dynamics in international
affairs formal + informal dynamics
o ‘governance’ instead of ‘government’ (formal, informal / public, private)
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, o ‘global’: vertical / horizontal dimensions + multilayeredness (especially in Europe
and Belgium)
Multilayered: you have the local authorities, province authorities, state
authorities, European authorities…
3.3 Changes in patterns of international cooperation
- Classic multilateralism: international cooperation was classically synonym to
multilateralism, the classical form of strong institutionalized cooperation between
countries as part of permanent institutions
o Archetype: UN and UN system
o Variation: WTO (“member driven”)
o Crisis: reforms / negotiation methods
- ‘New’ multilateralism: often outside UN system, selectivity, informality
o Archetype: G20 (19 countries + the EU): not particularly inclusive form of
international cooperation
- ‘Minilateralism’
- Resurrection of bilateralism: EU’s tendency of negotiating bilateral free trade deals
o Eg. race to preferential trade agreements
- Renewed unilateralism: disengagement, invasions
o Idea that you can handle everything by yourself, that you don’t need other
countries
3.4 Stages of international law
1.
1648 Westphalian Peace Treaties: ended the thirty years of war, final recognition by Spain of the
independence of the Kingdom of the Netherlands, introduction of a system of recognizing the
sovereignty of Nation States. States as the primary subjects of international law (the modern
state, the idea of sovereignty, the idea of countries that were independent and could establish
their own political and legal systems), however, alternative forms of political organizations did not
totally disappear. The law of peaceful co-existence: the idea that states are equal to each other in
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,their formal sovereignty, that not one state can impose itself in a superior manner to another
state. ‘Par in parem non habet imperium’.
2. 20th century law of co-operation, in conjunction with the law of co-existence. Versailles
Treaty and the League of Nations and the introduction of international civil service, working at an
international organization being subject to their own Code of Conduct and so forth. States work
together under the permanent umbrella of an institution instead of the law of co-existence which
is just states working with each other directly as sovereign equals. In the law of international
organizations, the normative, legislative, and subject of norms are separated, because it is the
organization that becomes the normative factor. There is no symbiosis between the States as a
norm giver, as a legislator and as an addressee. The Member States of the organization become
the addressees of the norms of the organization and in that sense the creation also changes.
Violations do not lead to countermeasures, but to the IO acting (suspending, expelling) Member
States.
Loyalty and good faith obligations. Good faith already existed under the law of co-existence.
Good faith is a cornerstone in the VCLT (Article 26: pacta sunt servanda). Good faith is
everywhere already in the law of co-existence between sovereign equals. In an institutionalized
bond however, this good faith gets a more profound meaning: principle of sincere co-operation
and loyalty.
3. 1945 UN, brainchild of Roosevelt and his successor Truman: more successful, permanent, and
inclusive than the League of Nations. UN is a forum where Member States permanently work
together dealing with common interests and values: law of co-operation phase 2.
4. 1957 European Economic Community: the law of integration, states work together (law of co-
operation) but surrendering sovereignty, transferring sovereign competences to a central level.
Deep, comprehensive but a totally different mode of functioning than international law. The High
Authority and later on the Commission are independent from the national government and serve
the general European interest with all kinds of competences on a central level. We could refer to
the Community method, but word ‘community’ has vanished from the EU Treaties. The method of
working however, continues to be there.
4 Revisiting some basic tenets of international law
4.1 The central position of States
- States = ‘full’ subjects of international law
o Still considered to be the primary full subjects of international law
Rise of multitude of non-State actors:
o Sub-State authorities
o Intergovernmental organizations, both at global and regional level
o Multinational enterprises (MNEs)
o Transnational NGOs
derived organisation, because they have legal personality because of
the state that consented
- Problems of failed / unrecognized States/areas of limited statehood (ALS)
o Failed states don’t have a central government
Many problems: eg piracy in Somalia
o Unrecognized states: eg the Northern Turkish Republic of Cyprus only one
country (Turkey) has recognized it
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, o Areas of limited statehood (ALS): they have a central government, but big parts of
the territory are not under the control of that central government
Eg South Ossetia en Abkhazia: the Russians started to recognize them as
states, so they weren’t under Georgian control anymore
There is a de facto government, but it is hardly recognized by any
country in the world
Eg Nagorno Karabach between Armenia and Azerbaijan
Hence the rise, since the mid-1990s, of ‘global governance’:
- Proposed definition: “the complex of formal and informal institutions, mechanisms,
relationships, and processes between and among states, markets, citizens and
organizations (…) through which collective interests on the global planet are articulated,
rights and obligations are established, and differences are mediated” (Weiss/Thakur)
But: the renaissance of the sovereign nation State?
- Cf. President Trump’s UNGA address 25/9/2018: “America will always choose
independence and cooperation over global governance, control, and domination. I honor
the right of every nation in this room to pursue its own customs, beliefs, and traditions.
The United States will not tell you how to live or work or worship. We only ask that you
honor our sovereignty in return. … We will never surrender America’s sovereignty to an
unelected, unaccountable, global bureaucracy. America is governed by Americans. We
reject the ideology of globalism, and we embrace the doctrine of patriotism. Around the
world, responsible nations must defend against threats to sovereignty not just from global
governance, but also from other, new forms of coercion and domination.”
4.2 The theory of sovereignty and equality of States
= Basic axiom of international law: art. 2(1) UN Charter
Traditional corollaries and their challenges: what are the consequences when you are a
sovereign state
- 1) Exclusive jurisdiction over territory and permanent population (cf. Island of Palmas :
“independence”)
o Island of Palmas case: the arbitrator Max said that sovereignty means
‘independence’
It basically means that there is no power higher than you on your territory
>< Quid:
o Extraterritorial jurisdiction in criminal and other matters
How do you reconcile sovereignty with extraterritorial jurisdiction?
Extraterritoriality = basically the practice in which a state is taking
out legislation that has effect outside of its own territory
o Immunities: certain restrictions even in regard to your own territory you
sometimes cannot enforce your own laws on your own territory
Eg when there are diplomats and ambassadors of other countries living
and working in their embassies in your country
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, - 2) Duty of non-intervention in internal and external affairs of other States
o The “reserved domain”: cf. art. 2(7) UN Charter (“matters essentially within
domestic jurisdiction”)
>< Quid: where is this hard core of sovereignty today?
Human rights: now, grave human rights violations do not fall within
domestic jurisdiction
Humanitarian intervention / Responsibility to Protect (‘R2P’)
Two concepts of sovereignty that clashed with each other:
- Classical sovereignty (like: no intervention)
- But also: notion that has been gradually been developed:
individual sovereignty (all the human rights protection et)
Kofi Annan said that we saw the clash of these two concepts in
the case of Kosovo
New concept of R2P:
- Also in §138 of the sourcebook
- Accepted by almost all countries in the world
- RSP starts from the premise of sovereignty, but
sovereignty also entails responsibility vis-à-vis your
citizens
- Normally the UNSC has this responsibility, but sometimes
the GA can also have this responsibility
- Uniting For Peace Resolution: Resolution of 1915
of the GA where the GA says ‘we realise that the
security council has primary responsibility for
maintaining peace and security, but if it is blocked
by veto’s then we the GA consider ourselves as
having the power to make recommendations on
that particular matter’
Democracy/Good Governance/Rule of Law
o But: non-intervention principle strongly emphasized by BRICS countries they
have a different view on international law, sovereignty and interventions
- 3) Consensualism
o Idea: a sovereign state can only be bound by a rule of international law when the
state itself has agreed to be bound by the rule
o International legal obligations only upon consent
>< Quid: customary law, jus cogens?
Definition of jus cogens does not require unanimity
o Jurisdiction international courts and tribunals
>< Quid: chapter VII ad-hoc criminal tribunals
o Membership international organizations
You choose to be a member of an IO or not, the membership is
determined by consent
>< Quid: de facto pressure to join and remain Member; IOs as
‘orchestrators’
Sovereign state consent is still the principle
IO’s sometimes play the role of ‘orchestrator’: they have meetings
and they propose dynamics and some states that are willing to
take the lead will come with a draft proposal….
- 4) Equality of States more of a myth
o >< Factual and legal inequalities but it is difficult to say that every state is
equal, eg compared to the US
o >< “Common but differentiated responsibility” (= CBDR)
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