Law:
Study Guide for Chapter 6 of Introducing Globalization
Prepared by Matthew Sparke for students using
Introducing Globalization: Ties, Tensions, and Uneven Integration, Oxford: Wiley-Blackwell, 2013.
Learning objectives:
After completing this chapter, you should be able to:
1)
2)
3)
4)
5)
6)
understand the acronyms and implications of transnational trade law;
describe the three main mechanisms of trade-law transnationalization;
compare and contrast the WTO, EU, ICC, ICJ, and NAFTA as legal regimes;
describe the uneven reach and power of international human-rights laws;
connect the grassroots globalization of law to transnational advocacy;
evaluate the implications of transnational legal advocacy for your own life.
Main arguments:
The globalization of law is very uneven. Trade law has become expanded and
entrenched transnationally with enormous consequences. By contrast, supposedly
universal human-rights law remains much more unevenly enforced with numerous
exceptions justified in the name of war, security emergencies, and national
exceptionalism. And the grassroots global legal struggle for environmental
protections, worker protections, and the rights of other less powerful social groups
remains still more patchy and incomplete in its scope. Chapter 6 aims at surveying
each of these unevenly developed elements of global law in turn.
Contemporary commercial law has historical roots (and cross-border
geographical routes) that can be traced back to the Lex Mercatoria of the middle
ages. However, in recent decades it has globalized rapidly and deeply through an
overlapping and globe-spanning system of trade agreements. Three main
mechanisms account for this process of trade-law globalization: competition,
harmonization, and monopolization. Let us here review each of these mechanisms in
turn.
Competition: Trade laws are designed deliberately to make it possible for businesses
to make goods wherever it is most efficient to do so and export them into and out of
countries without having to pay tariffs. Not all agreements achieve this overnight.
Instead, they put the nation-states who have signed an agreement on a pathway to
lower and lower tariffs over time, with the ultimate goal being complete elimination.
This has an impact on national laws beyond the ratification of the actual agreements
because the removal and reduction of tariffs allows TNCs to play off one country
against another, and this in turn frequently forces legislators in different countries
to re-set taxes and other regulations in ways they hope will enable them to better
compete for business investment. In turn, this frequently leads them to adopt more
neoliberal laws, and so the trade agreement thereby ends up facilitating this resetting of local and national laws in the name of transnational competitiveness.
Harmonization: This is a much more direct resetting of national and local laws by
transnational trade agreements. It relates to the ways in which they also seek to
remove non-tariff barriers (NTBs) as well as tariffs themselves. From the
perspective of exporters, a non-tariff barrier may be a law that stipulates what
products are allowed to come to market in a country. For example, a law that says a
certain pesticide may not be used in growing a certain crop might therefore be
interpreted as a non-tariff barrier. From the perspective of the country that made
such a law, it may not have been not about creating a trade barrier at all, but rather
may have been about protecting public health. But if all the signatories to a trade
agreement agree to full market access to crops made with the previously banned
pesticide, then the law that banned the pesticide is “harmonized” out of existence. If
communities rally in response in the name of protecting public health, they are
accused of being protectionists who want to impose a non-tariff barrier on imports.
Monopolization: While trade agreements are all about liberalizing the movement of
goods and investment, there is one exceptional way in which the laws they extend
across borders are about restriction, limitation, and control. This somewhat
counterintuitive, controlling aspect of global trade law surrounds the protection of
intellectual property (IP) and the monopolies such property afford to their owners.
By locking in IP protections for tech companies and pharmaceutical companies in
particular, the WTO’s TRIPS rules have thereby allowed these companies to extend
their monopolies around the world. Certain minor exceptions are allowed for some
generic drugs producers for essential medicines, but these are increasingly being
eliminated, too.
When it comes to exceptions from global law, there are many more being
made all the time in ways that systematically diminish the enforcement of global
human rights. Although the Universal Declaration of Human Rights remains an
inspiring document that indexes global consensus on a wide range of human rights,
it lacks the strong enforcement powers enjoyed by trade law. Trade agreements are
so powerful because parties who are found to be disobeying their rules can be
punished through trade sanctions and exclusion. By contrast, efforts to enforce
human-rights laws internationally are themselves repeatedly undermined by
exclusion. Excluding certain sub-populations from protection in the name of
national security is thus the standard way in which the universality of the laws is
effectively abridged (a tendency that can be traced back to early proponents of
liberal rights in America and Europe who excluded slaves and colonial subjects from
the universal protections they so earnestly advocated for themselves). Even when
an institution such as the International Criminal Court is set up with the express
purpose of universalizing human-rights protections and punishing the perpetrators
of torture and genocide, national exceptionalism is often invoked to exclude it from
intervening.
In an even more patchy and incomplete way, law is also being globalized
from below by various sorts of transnational advocacy. Environmentalists, workers’
rights groups, women’s rights groups, gay-rights groups, native-rights groups, and a
wide range of other activists have created transnational advocacy networks with the
express purpose of expanding protections for particular communities and causes
globally. Their efforts have not been without significant global successes, and the
example of the treatment action campaigns organized by South Africans and
supported by the HIV positive community in North America is illustrative of how
such advocacy can even take on the global monopolies protected by trade law. But
the obstacles to globalizing law from below remain immense.
Key conclusions:
1) Commercial law has always been at the cutting edge of transnational law.
2) Both regional trade agreements and the WTO have globalized commercial
law.
3) Compared to trade tribunals, the power of other international courts remains
limited.
4) While judicial globalization through international courts has been uneven, it
is still changing both national and international law, especially human-rights
law.
5) Human-rights law has also been globally transformed and extended through
the legal struggles of transnational advocacy networks and other social
movements.
6) The transnational fields of global law constitute a kaleidoscope of hard laws
and soft laws that themselves unevenly reflect both hard and soft forms of
national law-making.
Further reading:
i) On global trade law and the constitutionalization of neoliberal norms
Lori Wallach and Patrick Woodall (2004) Whose Trade Organization: A
Comprehensive Guide to the WTO? New York: The New Press.
Saskia Sassen (2006) Territory, Authority, Rights: From Medieval to Global
Assemblages. Princeton, NJ: Princeton University Press.
ii) On legal exceptionalism from universal human-rights law
Derek Gregory (2007) “Vanishing Points: Law, Violence and Exception in the
Global War Prison,” in Gregory, D. and Pred, A. eds. Violent Geographies: Fear,
Terror, and Political Violence. New York: Routledge.
Philippe Sands (2005) Lawless World: America and the Making and Breaking of
Global Rules. London: Allen Lane.
Tayyab Mahmud (2007) Geography and International Law: Towards a
Postcolonial Mapping. Santa Clara Journal of International Law, 2: 525–561.
Uday Singh Metha (1999) Liberalism and Empire: A Study in Nineteenth Century
British Liberal Thought. Chicago: University of Chicago Press.
iii) On transnational law-making from below
Boaventura de Sousa Santos and César Rodríguez-Garavito, eds. (2005) Law and
Globalization from Below: Toward a Cosmopolitan Legality. Cambridge:
Cambridge University Press.
Christopher Bacon (2013) “Quality Revolutions, Solidarity Networks, and
Sustainability Innovations: Following Fair Trade Coffee from Nicaragua to
California,” Journal of Political Ecology, 20: 98–115.
Christopher Bacon (2010) “Who Decides What Is Fair in Fair Trade? The AgriEnvironmental Governance of Standards, Access, and Price,” The Journal of Peasant
Studies, 37: 111–147.
Walden Bello (2002) Deglobalization: Ideas for a New World Economy. New York:
Zed Books.