Sovereignty and Inequality

4 Conclusion

Proposals to move away from the traditional account of international law based on state sovereignty - the account found in Oppenheim and preponderant throughout the 20th century - have not crystallized as a single coherent alternative. Some advocate a broader view of the range of norms encompassed in the concept of `international law': norms of interaction for individuals and groups in transnational civil society, many of which are chosen voluntarily by contract even if they often rely on state power for enforcement; rules and decisions promulgated by state institutions in transnational dialogue with other relevant institutions; and the law controlling state action, which will be a mixture of international agreements and national law and will generally be subject to enforcement in national courts and in supranational courts of which the European Court of Justice is a prototype.⁷³ Others propose to move away from the requirement of explicit consent by each state as the basis for binding obligation, finding universal law in a range of normative pronouncements from intergovernmental conferences, repeated provisions in treaties, the practice of international organizations, and other evidence of a general will of a diverse international community.⁷⁴ Modern extensions of natural law approaches, including the policy science and communication approach long advocated by the New Haven School, have an enduring attraction in seeming to base international law on community policies that reflect higher purposes and not simply on the putative will of formal sovereigns.⁷⁵ These different approaches all allow greater scope for the substance of international law to be influenced by `global public policy.' This policy spans managed trade, market liberalism, protection of intellectual property and wildlife, civil rights, public participation and a range of other values favoured in the political West. It encompasses a commitment to some basic equality among human beings, but it is not at present a strongly egalitarian policy.⁷⁶ The commitments of the various advocates differ, but the aggregate of forces pushing to shift legal thought from a normative-status view of sovereignty to a functional-contractual view are not at present accompanied by a corresponding impetus to ameliorate and manage problems of inequality.

A decline in the traditional sovereignty system weakens the relationship of mutual containment between sovereignty and inequality. The justification that sovereignty provides for the modesty of the engagement of international law with problems of inequality within national societies - the justification for the weakness of international law regimes on landlessness, unemployment, gender inequity, homelessness, basic education, mental illness - threatens to disappear at a time when inequalities in many societies are rising. Inequalities between many societies are also growing larger, while the weakening of the sovereignty paradigm would remove the segmenting buffer that has been a moral underpinning, however incoherent, for inter-societal inequalities.⁷⁷ Inequalities in the structure of transnational activities and the incidence of their legal regulation intensify these inter-societal inequalities. The increasing need for regulation of non-state actors, including actors in the emerging transnational civil society, and for the development of a democratic transnational law, coincides with the weakening of the prerogatives of the institutions of some states, leaving many communities dependent in practice on the regulatory efforts of the strong states or of international institutions.

People experiencing a decline in their ability to shape deleterious or unsettling changes can be expected to resist. Sovereign states open the prospect of some autonomy, the possibility for individuals and groups to make a difference in a structured political space whose institutions and community shape their conscious identities. The suspension of the OECD negotiations on the Multilateral Agreement on Investment in May 1998, which occurred not simply through the involvement of citizens' groups in the OECD but in major part through public opposition expressed in the political systems of a number of participating states, illustrates the value many individuals place on autonomous decision-making within the state in the face of the imperatives of globalization. In strong states, the US above all, there is little prospect that the autonomy inherent in the traditional sovereignty system will be compromised, and the politics of the civil society will continue to be channelled through state institutions even as the activities and concerns of the civil society gradually become more transnational. Citizenship and loyalty will continue to have a vital political meaning defined by reference to the state. The `citizenship' of the European Union, promised but underspecified in the legal texts of the Union, seems likely to take its substance as a gloss on the enduring loyalties and citizenships of individuals attached to the Member States.

The imperative for some degree of participation and autonomy has buttressed the traditional sovereignty system. It is often argued that a new liberal global legal order, or indeed a post-modern post-sovereignty international law, will make participation and active citizenship more possible, overturning tyrannies and hierarchies and increasing freedom and community and equality. But there will not soon exist a global community which is capable of sustaining the politics and institutions necessary to realize such ambitious visions. Their realization would require not only the conceptual change which their advocates promote and have begun to achieve, but extraordinary resources which new technology and global economy do not yet provide. In their aspirational but unrealized state, such visions serve in the interim to legitimate an extraordinary range of interventionist or otherwise coercive activities in other countries that reflects struggles and dilemmas in politics in the West: removal of dictators; extraterritorial police operations against narcotics cartels allegedly protected by corrupt regimes; no-fly zones to safeguard threatened ethnic groups; the empowerment of victims of gender discrimination, religious persecution, or gun control laws; protection of the unborn, tropical forests, intellectual property, marine mammals, foreign investors, or telecommunications service providers; promotion of peace processes, free if ethnically divisive elections, and unsafe safe havens. These agendas involve, and are often responsive to, groups outside the West, but they are largely set in the West, with timing suitable to political interests in the West, and with inconsistencies and vagaries driven in many respects by dynamics in the West. To be pursued effectively they require, paradoxically, organized inequality, on a larger scale than presently exists. They require also a system for the management of inequality that international law at present lacks. The traditional sovereignty system is flawed, and will continue to be stretched and strained. But for the time being it remains a more realistic system for the management of enduring inequalities, and of other pathologies of the international system of law and politics, than any of the alternatives on offer.

73 Slaughter, supra note 39, at 516-534.

74 Charney, `Universal International Law', 87 AJIL (1993) 529. Related issues are considered in Simma, `From Bilateralism to Community Interest in International Law', 250 RdC (1994) 217; Grieg, `Reflections on the Role of Consent', 12 Australian Year Book of International Law (1992) 125; and Pellet, `The Normative Dilemma: Will and Consent in International Law-Making', in ibid, 22.

75 H. Lasswell and M. McDougal, Jurisprudence for a Free Society (2 vols, 1992).

76 Cf. Alston, `The Myopia of the Handmaidens: International Lawyers and Globalization', 8 EJIL (1997) 435.

77 See e.g. Miller, `The Ethical Significance of Nationality', 98 Ethics (1988) 647.

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