From Compulsion to Cooperation: The Importance of the Local in a Global World
Vol. 39 Managing Online Content Editor
Trends in electoral politics in nations across the world have given political expression to a rhetoric of nationalism that presents itself as a “turn away” from international cooperation. As the global community experiences the resurgence of nationalist and xenophobic rhetoric, public discourse on the future of international law remains increasingly focused on the tension between nationalism and the demands of international cooperation. While the international community bemoans these tragedies of the national commons, as it continues to articulate models for humanity’s shared future, it also important to contextualize these changes in the broader context of global change. On the heels of her celebrated book, A New World Order, in 2006, with rising attention on transnational threats such as cross-border pollution, terrorist training camps, and weapons proliferation, American lawyer and scholar, Anne Marie Slaughter, argued that “the international legal system must be able to influence the domestic policies of states and harness national institutions in pursuit of global objectives.” In essence, her position was neither unique nor novel. It was a modern articulation of the decades old assumption of the existence of a singular and unilateral world-order—albeit dressed up with astute observations about the changing nature of the state and government authority. Declaring the successes of American regulatory initiatives, and the “virtues of the European way of law,” Slaughter articulated an agenda for international law describing with great enthusiasm, “the ability of the international process to catalyze action at the national level,” by transforming nations “from the inside out.” In articulating her argument as such, with little attention to the complexity of the particularities of individual nations, national institutions and histories, Slaughter cast a collection of nearly two-hundred diverse nations—with unique political histories—in a monotone hue that demanded conformity, or as she put it harmonization, with American and European rule of law. On this basis, Slaughter argued that “the future effectiveness of international law will turn on its ability to influence and alter domestic politics.” In the decade that passed since Slaughter’s forceful assertion, the world has undergone even greater change than scholars previously imagined. Technology and global finance have shaped a world more inter-connected than ever before. The world has witnessed—through the rhetoric of the Obama White House, if nothing else—that America can, and perhaps must, imagine its role in the global order in terms more meaningful than hegemony. The European Union’s influence over its Member States has often failed and faltered, with the once unimaginable and certainly unexpected loss of a key Member State, the United Kingdom. China has transformed itself into a new global power center. With the influence of transnational corporations and private philanthropists expanding throughout the international arena, the very shape of the international legal platform has been altered by what many scholars refer to as “in-between spaces,”—spaces of power in between public and private international institution. Contrary to dearly-held expectations, this decade has not brought the nation-state in line with the “international order.”—or whatever imagined consensus this vague term was used to indicate. Rather, the events of the past decade have made it increasingly difficult to demarcate the very boundaries of the nation-state. The edges of the once defined nation-state have frayed not into well-oiled international networks of authority, as many had hoped, but instead, more often into the chaos and complexity of the international unknown. The deep contrast between the current landscape and past predictions have made the contemporary landscape seem more uncertain than ever before. As such, it is not surprising that a segment of current discourse in international law remains consumed with determining the appropriate role of the nation-state in the international order—especially because key contemporary institutions like the United Nations and the World Trade Organization are deeply dependent on the neophyte concept of the nation for their legitimacy and proper functioning. Slaughter’s article is reflective of a rhetoric in international law that assumed control, authority—power even—by assuming legitimacy, and/or normative agreement, where none had been decisively crafted or forged. This rhetoric traces back to an intellectual culture long-lulled—that can be traced at least as far back as G.W.F. Hegel—into the false notion that the methodologies of Europe and America have solved the worlds epistemic and regulatory challenges, save one: the challenge of harmonizing the diversity of the world with the Euro-American method. Re-reading Slaughter’s article on the future of international law, at this moment, serves as important intellectual exercise in coming to terms with everything that is wrong with such an understanding of the international space: fundamentally, this view is void of any genuine international content. Rather it is a parochial or nationalist understanding of the world that is simply imposed upon an unexamined and amorphous international arena. It assumes the world’s cooperation and obedience without adequate knowledge of the world beyond the narrow confines of elite international institutions. In essence, such unilateral expositions of law are as “international” as Sarah Palin’s famous assertion that her international experience includes seeing Russia from her house.  At this moment, when great uncertainty is being projected with regard to the future of international law, it is crucial to remember that the failure of one approach to international law cannot be equated to the failure of international law, in its totality. What we are currently experiencing is the repeated failure of international exceptionalism and its associated culture of compulsion and coercion. This culture was possible so long as Europe and America were pre-eminent powers. This approach seems increasingly strained as the policy prerogatives of Europe and America no longer remain uniquely decisive for world affairs. This specific approach to international law will continue to fail with the failure of the project of Western hegemony. What awaits us beyond is still unclear, still inchoate. However, with increased focus on cooperation, mutual understanding, diversity, and pluralism, across the globe from Germany to China, there is a potential for a new unifying approach that is different from anything that anyone has imagined thus far. The seeds of this new culture are already palatable in contemporary discourse in international law. Framed as a “wake up call” to the need to reassess our preparedness in the face of an evolving risk landscape, the 2017 Global Risk Report—an annual study published by the World Economic Forum ahead of the Forum’s Annual Meeting in Davos, Switzerland— attributes the current resurgence of nationalism across the globe to heightened socio-political tension that has been building for over a decade now. The report recognizes—as a key factor—the difficulty of “finding a political narratives and policies that can repair decades-long cultural fault-lines while preserving—for example, gender and minority rights.” The report gives a central role to concerns over growing income inequality that have resulted from rising income and wealth disparity, arguing that issues of “income and wealth distribution are becoming more politically disruptive, and much greater emphasis is needed on the increasing financial insecurity that characterizes many people’s lives.”As a response to these challenges, the report suggest three strategies: Generation of more inclusive growth, the continuity of governments during accelerating change, and the reconciliation of Nationalism and Multiculturalism. These solutions are a world away from the regulatory and methodological fetishes of the past decade. As the report from Davos suggest, “The world is undergoing multiple complex transitions: towards a lower-carbon future; towards technological change of unprecedented depth and speed; towards new global economic and geopolitical balances. Managing these transitions and the deeply interconnected risks they entail will require long-term thinking, investment and international cooperation.” Rhetoric on international law still has a long way to go before it achieves the nuance necessary to be able to comprehend the enormity of the task of living in a diverse, interconnected, mutually supportive, cooperative global world. However, understanding this current moment, and its full potential will go a long way in pushing forward to more sophisticated world “orders.”
The list of “populist” attacks on international cooperation include: the recent election of Donald Trump, the results of the popular referendum that set the United Kingdom on a course of withdrawal from the European Union (Brexit), the populist rise to power of India’s Hindu fundamentalist party, the withdrawal of South Africa, Burundi and Gambia from the International Criminal Court, and the potential growth of support for right-wing parties in major European Union Member States including France and the Netherlands. Anne-Marie Slaughter, The Future of International Law is Domestic (or, The European Way of Law) 47 Harv. Int’l L.J. 327, 328 (2006).  Id. at 329.  Id. at 341.  Id. at 330.  Id. at 328. Notably, Slaughter makes these unqualified assertions without a single sentence dedicated to considering fundamental questions about distribution of wealth and balance of powers at the international level, or the complexity and causation of global terror. She provides no discussion of cultural complexity. Instead, Slaughter seems to readily assumes that the West will design and regulate, and the rest will follow.  See, e.g., Pres. Barack Obama, Remarks by President Obama at Leaders Summit on Refugees, White House Office of the Press Secretary (Sept. 20, 2016) https://obamawhitehouse.archives.gov/the-press-office/2016/09/20/remarks-president-obama-leaders-summit-refugees.  See also Simon Marks, Whispers of ‘Grexit’ Start Again, Politico, Jan. 25, 2017. http://www.politico.eu/article/whispers-of-grexit-start-again-greece-economy-bailout-imf-eu/  Adam Church, Shifting Tides: The Future of Globalization in an Era of Rising Populism, Michigan Journal of International Law,(Feb. 17, 2017) https://www.mjilonline.org/shifting-tides-the-future-of-globalization-in-an-era-of-rising-populism/.  See e.g., Sameeksha Desai & Zoltán J. Ács, Democratic Capitalism and Philanthropy in a Global Economy (2008) ; See also Expanding Global Philanthropy to Support the Human Rights of Lesbian, Gay, Bisexual and Transgender People, Arcus Operating Foundation (2008), http://www.issuelab.org/resources/9227/9227.pdf;  Horatia Muir Watt, The Relevance of Private International Law to the Global Governance Debate in Private International Law and Global Governance, 1, 17 (2014)  Micheal J. Mazarr, et al., Understanding the Current International Order, Rand Corporation, (2016) But see Helen Milner, The Assumption of Anarchy in International Relations Theory: A Critique, 17 Rev. of Int’l Studies 67-85 (1991) http://www.rand.org/content/dam/rand/pubs/research_reports/RR1500/RR1598/RAND_RR1598.pdf; William A. Callahan, Chinese Visions of World Order: Post-Hegemonic or a New Hegemony? 10 Int’l Studies Rev. (2008) 749—761.  See e.g. Benedict Anderson, Imagined Communities (1991).  See G.W.F. Hegel, Lectures on the Philosophy of History (1837).  Evening News: Katie Couric One-on-One with Sarah Palin, (CBS television broadcast Sept. 24, 2008), http://www.cbsnews.com/news/one-on-one-with-sarah-palin/. In this famous interview, when asked about citing Alaska’s proximity to Russia as a part of her foreign policy experience, Sarah Palin stated, “Alaska has a very narrow maritime border between a foreign country, Russia, and on our other side the land boundary that we have with Canada,” stating further that she ran trade missions with these foreign States and that when Russian enter the airspace of the United States they enter through Alaska first.”  World Economic Forum, The Global Risks Report 2017 9 (2017), http://www3.weforum.org/docs/GRR17_Report_web.pdf.  Id. at 14.  Id. at 13.  Id. at 9.