Financial Crisis, International Relations and International Economic Laws
The 2008 Financial Crisis has affected nearly every aspect of every economy in the world in some way or another. In a short span of time, its causes and consequences have been analyzed in great detail. However, while plenty has been written about its impact on domestic systems, its impact on international economic law is yet to receive the same kind of attention. This paper discusses the impact of the Crisis on the larger framework of international relations. It then examines the effect these changes have on key ongoing debates in international economic law particularly the much delayed Doha Development Agenda and the regulation of Sovereign Wealth Funds.
Symmetry and Selectivity: What Happens in International Law When the World Changes
This article has a simple hypothesis: Selectivity in international law increases as international relations become more symmetrical. Conversely, international law becomes more universal as asymmetry grows. This relation holds true during the modern period. Its existence in turn supports the theoretical claim that the content of international law reflects the rational interests of those actors that make it.Consider first international relations. A simple narrative, seriously incomplete but good enough for present purposes, would go something like this: From the end of World War II to the collapse of the Soviet empire a bipolar superpower competition dominated international relations. There followed a period of U.S. hegemony, but more recently significant Chinese, European, Indian and Russian challenges to the United States have complicated that structure. The details do not matter, neither the dates, nor the extent of U.S. hegemony when it existed, nor the number of the new great powers, nor the precise relative influence of each. What matters is that the basic structure of international relations underwent a transformation in the latter part of the twentieth century and now appears to have changed again.Next consider competing trends in international law, that toward universality and that toward selectivity. Universal international law applies equally to all states. Selective international law means that states vary in what rights and obligations they recognize as well as how to allow them to be enforced. In the extreme case of selectivity the content of international law and its enforcement depends entirely on the identity of the state in question. If the recognition of international law reflects the rational interests of states, then international law should trend toward universality during times of hegemony and toward selectivity during periods of multipolar great power competition. Conversely, if international law does not conform to this pattern, then something other than the rational interest of states must explain its content. Much more is going on, of course, but this simple hypothesis suffices to ground an inquiry into the nature of international law as a creature of, and dependent on, international relations.Developments in international law since World War II are consistent with the claim that selectivity increases as international relations become less asymmetrical.
Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts
Not so long ago the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. Their policy was to avoid any application of foreign sources of law that would clash with the position of their domestic governments. Many jurists find recourse to foreign and international law inappropriate. But even the supporters of reference to external sources of law hold this unexplored assumption that reliance on foreign and international law inevitably comes into tension with the value of national sovereignty. Hence, the scholarly debate is framed along the lines of the well-known broader debate on “the countermajoritarian difficulty.” This article questions this assumption of tension. It argues that for courts in most democratic countries—even if not for U.S. courts at present—referring to foreign and international law has become an effective instrument for empoweringthe domestic democratic processes by shielding them from external economic, political, and even legal pressures. Citing international law therefore actually bolsters domestic democratic processes and reclaims national sovereignty from the diverse forces of globalization. Stated differently, most national courts, seeking to maintain the vitality of their national political institutions and to safeguard their own domestic status vis-a-vis the political branches, cannot afford to ignore foreign and international law.