The State between Fragmentation and Globalization

Serge Sur¹

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The terms used in the title of this essay were chosen to enable us to go beyond a purely legal approach in order to integrate legal facts into the broader legal context from which their meaning derives.² State, fragmentation, globalization: these terms constitute the three poles of our analysis. The relations between them form the threads which tie it together, with the state, however, forming the central focus. It may well be supposed that the state is not terribly popular. Once again, it is being brought before the tribunal of history, this time a prospective or speculative history. At worst, the state is being asked to reabsorb or dissolve itself, even to allow itself to be divided up or reshaped by this pushing and pulling in two different directions. At best, the state must agree to transform itself. It is therefore useful to shed some light, at the outset, on this trial to which the state is being subjected (Section I). From this basis, we can then move on in Section II to consider the observed, or predicted, break-up of the state: Is it indeed a case of fragmentation or, on the contrary, the promotion of a new model of the state? Finally, Section III concludes our analysis by examining this curious term 'globalization': What is it really? Is it not simply a contemporary mask for the classic old game of domination? Should we speak of globalization or of hegemony of the New World?

I. The State on Trial

The trial against the state raises questions about its domestic dimension as well as its international role, implicating it both on a political and legal level. Accusations against the state are by no means a recent phenomenon, but the problems currently facing it are based on new realities. And these new realities seem to indicate that fragmentation and globalization are complementary, rather than mutually exclusive, processes.

a. It is therefore necessary to focus on the dual nature of the state: on the one hand, it is a legal concept embodied in a set of organized norms, i.e. a normative system; on the other hand, it is a political body, structured on the basis of a principle of legitimacy which distinguishes it from any other body and gives it its unique identity. The state has a dual nature, but also a dual role: it is at once the expression and the totality of a domestic society and, at the same time, it is the foremost of international institutions.

As the first amongst international institutions, the state is the pillar of classic international law. International law cannot be contemplated without the state, even less so can it be thought of as being against the state. The existence of international organizations does not create an exception to this, for they are, as is well known, also inter-state, even intergovernmental, bodies for the most part. It is as an international institution that the state ensures civil peace and public order within its own territory, contributing to the peace and stability of the international society and carrying out its communication and cooperation functions with other states.

It is in this dual role, domestic and international, that the state is today being brought into question.

Firstly, concerning its internal homogeneity, national identity itself is being put to the test by regional-level demands, minority rights issues, cross-border relations, immigration, disrupted societies, and growing opposition between the rich and the poor.

Secondly, territoriality, the traditional domain of the state, can no longer ensure the state's enclosure nor can it protect this identity. Borders have become increasingly permeable to human, material, goods and service, and intellectual exchanges. In place of a logic of a fixed juxtaposition, there is a tendency toward international nomadism, which not only effaces space, but also penetrates borders. Given this, the classic domestic/international distinction is being eroded. By the very nature of things, transnational questions multiply in number, whether they concern trade, the environment, or human rights.

Finally, in imagining the state as a functional regulatory authority, a provider of norms and services, it can be seen that the state framework is ill-suited to such tasks. The opening up of markets and the globalization of trade is turning the state into an out-dated intermediate authority, dismissed by history. Too big for the local level, too small for the international, off the track, a framework for oppression, the state is ill-adapted, it disturbs, it annoys, it bothers, it gets in the way. It must be reduced in size before we can get rid of it. Moreover, has not the history of recent years been one of a drawn-out illness of the state, a decline which could lead to its ultimate crisis?

b. In all truth, despite its new accents, this trial has been under way for a long time. We can distinguish several phases or forms of dispute. Criticism of the state has always existed, not as the private domain of any one ideology in particular, but in the intersection of many: anarchism, legal idealism, federalism and Marxism, among others, have all criticized the state. Confronted with such criticism, the state has nevertheless shown immense historic vitality in being able to adapt itself to the most diverse political, economic and social realities without losing its fundamental traits, especially its international strategy. The state lives on in oblivion, and, thanks to its having been forgotten, in its transformations. Until now, it has managed to either bury its grave-diggers or rally together its enemies: the former Socialist countries, for instance, came from an anti-state ideology before becoming ardent defenders of state sovereignty.

The current trial is, however, of a different nature, for it has been undertaken in the name of realism. The state is not being shunned in the name of an ideal society or a better future, but rather on the basis of a reading of the facts. Its framework is falling apart in many places: the collapse of the Soviet Union, bloody division in Yugoslavia, soft partition of Czechoslovakia, a perceived general artificiality of borders in Africa. The model of political structure offered by the state from its European origins appears to be coming under fire within its own cradle: Is the European Union not preparing to overtake it? The EU could indeed serve as an example for large-scale regional economic and political regroupings, thereby spreading a new model.

c. The two phenomena of fragmentation and globalization are thus not at all contradictory. In fact, they are all the less so because they create an option between two possible developments. These phenomena result from dynamics which are more complementary than contrasting, dynamics which mutually feed one another.

We can certainly imagine two modes of evolution, or two ways out of crisis: the first from above, in a harmonious vision of a progressive realization of international federalism. The state would be no more than an authority amongst others in this gradation, without any particular legitimacy or status, a simple provider of services whose privileges have been abolished. The normative hope of Kelsen or the hope for solidarity of Georges Scelle can be recognized here. We may equally fear, however, a more tormented and tragic exit from below, taking the form of convulsive decomposition, planetary tribalism, a return to the state of nature and the law of the fittest. Certain recent examples of regression provide a worrisome preview of this scenario.

We will not hasten a guess about which of these two directions will be taken, as the elements which would permit us to choose remain too unclear and, what is more, history never deals out more than a reshuffled ambiguity. To cite Jean Cocteau: 'Trop de transformations s'ébauchent qui ne possèdent pas encore leurs moyens d'expression.'³ It is not so much the concepts which are lacking, for the arsenal is full of them, but rather secure anchoring points which would allow us to ground them. Where we should find architects, discerning the mass, volumes and frames of future constructions from their half-built foundations, we strongly risk finding only lighting technicians who, by modifying the angle or intensity of the light or by moving the spotlights, will create only an artificial and fleeting reality.

On the other hand, we can much more confidently analyse current data in their twofold dimension of fragmentation on one side, greater homogeneity on the other - though not a spontaneous, undifferentiated homogeneity, quite the contrary, a homogenization pursued on the basis of a deliberate plan, an enterprise of multifarious domination.

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1 Professor, Université Panthéon-Assas (Paris II), 12, Place du Panthéon, 75231 Paris CEDEX, France. Article translated by Debra Matier.

2 In order to preserve the essay form of this contribution references have not been included. The examples and references included in the text are on the whole sufficiently accessible and noteworthy to not require notes.

3 `Too many transformations are set in motion which do not yet have a means of expression.'

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