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Transnational Private Law and Private Ordering in a Contested Global Society

Abstract:

This Article explores a social vision of global public order taken from transnational private law. It recasts the potential role of private law in the crossborder economic context as centrally concerned with private action as both the object and vehicle of substantive and procedural governance. Viewed in this way, private law is a venue for the contestation and regulation of private action by private action in the contemporary global system. With its distinctive strengths and weaknesses, transnational private law is viewed as one alternative among many regimes of global order and is understood to perform a social—indeed, “public”—function in the embedding of private behavior and relationships within a broader social order.

This Article identifies the function of transnational private law as not simply facilitation of transactions, but also compensation for harms and social regulation of transnational conduct. Further, it argues that transnational private law can serve an ideational function in generating communicative interventions into the sometimes normatively closed national and functional systems of contemporary society. In serving these regulatory and ideational functions, transnational private law offers a different vision of global public order in which the task for state law is not command and control to eliminate conflict either within or across systems, but rather governance within and between social systems, including through allowing and sometimes facilitating conflict and contestation. It is with this distinctive vision that this Article begins.

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The Postcoloniality of International Law

Abstract:

How are we to understand the relationship between international law and imperialism? What bearing might that have on how we see contemporary international law? According to one view, international law is simply a “cloak of legality” thrown over the subjugation of colonized peoples by the imperial powers in a distortion of international law’s true spirit. According to this understanding, the contemporary task is to rid international law of the vestiges of that misappropriation. We must accept decolonization at face value and continue to broaden the scope and content of international law in a culturally sensitive way. Meeting the Symposium’s stated goal of “envisioning new orders” would therefore require the rescue of international law from the corruption of power to make good international law’s explicit promise of universality and sovereign equality.

At the other end of the spectrum is the belief that international law has always been encompassed by and in the service to empire. At this pole, the very doctrines and institutions of international law are understood to have been molded by the powerful in order to serve their interests. Those who hold power in the contemporary setting maintain the capacity to create and deploy international law, in turn facilitating practices of (neo)colonialism.

However, most scholars engaged with the “postcolonial” in some form or other would hesitate to embrace either of these two polar positions. On the one hand, the perception of international law as an innocent victim waiting to be rescued from the corruptions of imperialism is untenable. On the other hand, the view that international law abjectly serves empire is equally unpopular with those so engaged. They are generally unwilling to accept such an encompassing frame and its attendant demand to abandon international law as a site of contestation, both historically and now. And thus there is an irresolution that disrupts any attempt to characterize international law neatly as either on the side of the angels or in devilish league with imperialism.

Rather than simply attributing this to the indeterminacy of language or to the formal nature of law, it is important to inquire into the quality of this irresolution and to ask whether it is itself significant. Arguably there is something distinctive about the relation implied in the “postcolonial”—both a break from and a continuity with past forms of domination—and something particular about the capacity of law to be both appropriated to imperial ends and used as a force for liberation.

I argue that the quality of this irresolution suggests that international law is itself already postcolonial in that it both sustains and contains within it what we might call the condition of the postcolonial. Succinctly stated, this can be understood not only as the circular self-constitution of self and Other, but also as the paradoxical inclusion of the excluded necessitated by the claim to universality of this constitution. This dynamic accounts for both international law’s imperializing effect and its anti-imperial tendency. Crucially, whether or not this dynamic is in some way addressed would seem to indicate whether an approach to international law is likely to have any critical purchase or will instead be drawn back into the reproduction of colonial relations of power.

In the rest of this Article, I will outline the dimensions of this postcoloniality and its implications with reference to two examples. The first is the universalization of international law through decolonization, and the second is the limited success of recent attempts to “decolonize” human rights by refounding them on more “truly” universal grounds.

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The Bush Doctrine and Neoconservatism

Abstract:

On June 1, 2002, in an address at West Point, U.S. President George W. Bush announced a new set of foreign policy principles that has come to be known as the “Bush Doctrine.” The doctrine consists of three basic elements. First, the United States would no longer rely solely on “Cold War doctrines of containment and deterrence,” but would instead pursue a strategy of preemptive intervention in order to “take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge.” Second, the United States would concentrate on exporting democracy, since “the requirements of freedom apply fully to Africa, Latin America, and the entire Islamic world.” Finally, the United States would maintain its military supremacy beyond challenge, “thereby making the destabilizing arms races of other eras pointless, and limiting rivalries to trade and other pursuits of peace.” In September 2002, the Bush administration released the National Security Strategy of the United States, which formalized these three elements of the Bush Doctrine: preemptive strike, promotion of democracy, and military supremacy.

It was widely reported in the Western press that the Bush Doctrine had strong roots in the neoconservative school of thought in the United States. Early drafts of former Deputy Secretary of Defense Paul Wolfowitz’s report Defense Planning Guidance contained the three basic elements of the Bush Doctrine as early as 1992. In 1997, Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, William Kristol, and Robert Kagan founded the Project for the New American Century.  In August 18, 1997, Irving Kristol, the father of William Kristol and U.S. neoconservatism, predicted the rise of the neoconservative ideology in a Wall Street Journal article entitled “The Emerging American Imperium”:

One of these days, the American people are going to awaken to the fact that we have become an imperial nation, even though public opinion and all of our political traditions are hostile to the idea. It is no overweening ambition on our part that has deaned our destiny in this way, nor is it any kind of conspiracy by a foreign policy elite. It happened because the world wanted it to happen, needed it to happen, and signaled this need by a long series of relatively minor crises that could not be resolved except by some American involvement.

In light of the similarity of their views, it does not seem surprising that George W. Bush awarded Irving Kristol the Presidential Medal of Freedom on July 9, 2002.

The preemptive strategy articulated by the Bush administration is not a recent creation. Rather it has ancient roots reaching as far back as the Roman Empire and was a key Roman Imperial tactic that Cicero forcefully advocated:

How can you believe that the man who has lived so licentiously up to the present time will not proceed to every extreme of insolence, if he shall also secure the authority given by arms? Do not, then, wait until you have suffered some such treatment and then rue it, but be on your guard before you suffer; for it is rash to allow dangers to come upon you and then to repent of it, when you might have anticipated them . . .

The similarity between the sentiments expressed by Cicero in the above passage and the Bush administration’s recent rhetoric allude to the idea that there are some Classical scholars among the neoconservatives.

Many scholars have since explored the far-reaching implications of the Bush doctrine, but few have addressed the doctrine from a Chinese perspective. How have Chinese intellectuals perceived and responded to the Bush Doctrine? Naturally, there are many divergent viewpoints, but the main perspective can be easily identified. Chinese scholars have emphasized the continuity of the Bush Doctrine with President Clinton’s foreign policy, and consider the Bush Doctrine as the culmination and maturation of the United States’ post–Cold War grand strategy.

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Judicial Federalism in the ECJ’s “Berlusconi” Case

Abstract:

In recent years, the general public in many countries has become increasingly aware of issues concerning business accounting and financial reporting. Americans hardly need to be reminded of the Enron debacle, where members of the company’s senior management engaged in fraudulent off-balance sheet transactions to disguise the true state of the company’s financial condition, a scheme that auditors failed to uncover until the company’s implosion. This and other major corporate governance cases involving questionable or fraudulent accounting practices led to the Sarbanes-Oxley Act of 2002. This law was an unprecedented Congressional intervention into corporate governance, an arena that had previously been left largely to Securities and Exchange Commission (“SEC”) rules and professional self-regulation (e.g., auditor independence requirements), or to state corporate law (e.g., requirements for board committees and their composition).

Accounting scandals are not, however, a phenomenon limited to the United States. As a result of similar events in some European states, accounting reform has recently appeared on their policy agendas as well. Italy is notable in this regard, due in large part to its home-grown Parmalat scandal—until now Europe’s most expensive financial scandal. At the end of 2003, a € 14.8 billion gap that had been disguised by the establishment of an offshore subsidiary was discovered in the firm’s accounts.  Surprisingly—at least at first glance—at a time when other countries were strengthening their stance toward accounting fraud, Italy eased the grip of its criminal law on accounting fraud in a 2002 legislative decree amending the Italian Civil Code.  The Italian courts have submitted this amendment to the scrutiny of the European Court of Justice (“ECJ”) for a preliminary ruling.

The objective of this note is to analyze the importance of three joint cases—one of them against the Italian Prime Minister Silvio Berlusconi—where the amendment of Italian law is now at issue, and to situate them within the bigger picture of the current state of corporate governance and financial reporting. Part I explains the legal context of these cases and outlines the opinion submitted by the Advocate General Juliane Kokott. Part II analyzes the three most important parts of the Advocate General’s opinion in detail: the application of E.U. law on the nondisclosure of accounts to the publication of false accounts, the need for effective enforcement, and the effect of the principle nulla poena sine lege—that there must be neither crime nor punishment without law. The Advocate General recommends that Italy’s judges should ignore the new Italian law, which takes a lax view of accounting fraud. On the one hand, this is surprising, as E.U. directives on corporate law and accounting do not address the issue at all. On the other hand, this strict approach to financial reporting is in line with increasing efforts toward stronger involvement of the E.U. “federal” level in corporate governance in general, in consideration of recent U.S. corporate governance developments as well as the economic underpinnings of accurate accounting. Part III then addresses the issue of how the Berlusconi case may contribute to an increased effectiveness of E.U. efforts to strengthen and harmonize corporate law.

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Constitutionalizing Tobacco

Abstract:

The Treaty Establishing the European Community announces the principle that the powers of the European Community (“Community”) are limited to those specifically conferred on it: “The Community shall act within the limits of powers conferred upon it by this Treaty and of the objectives assigned to it therein.” However, experience has shown that, in practice, the allocation of power between the Community decisionmaker and Member States is neither clear nor immutable. For example, there is a traditional perception that it is the responsibility of the Community decisionmaker to implement internal market regulations in order to promote the “free movement of goods” and the “free movement of persons, services, and capital,” while individual Member States retain autonomy in regulating public health. The European Constitution has also formally embraced this longstanding private (market regulation) versus public (health regulation) dichotomy, using it to divide competences formally. However, the public/private distinction is hazy, as reflected by the history of the Community decisionmaker’s regulation of tobacco. Regulation of the manufacture and advertisement of tobacco products necessarily implicates both free market and public health concerns, and a given regulation may be characterized as a market measure in some circumstances and as a public health measure in others.

In its Treaty Establishing a Constitution for Europe, the Community attempts to clarify the allocation of competences. Article III-278 of the Draft E.U. Constitution (“Public Health Article”) is a public health provision that expressly refers to the regulation of tobacco:

5. European laws or framework laws may also establish incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, as well as measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.

To many, the Public Health Article reflects a shift toward European federalism by guaranteeing greater power to Member States over their national health regulations while limiting the power of the Community legislature. We argue that in reality, however, this “constitutionalization” of tobacco does not guarantee Member States’ autonomy. As long as the Community decisionmaker can standardize national tobacco laws whenever the functioning of the internal market is at stake, the Community will exercise some degree of control over States’ national health standards.

Part I of this Recent Development charts the progress of tobacco regulation through Community-issued directives, harmonization, and the early jurisprudence of the European Court of Justice (“ECJ”). Part II describes the struggle over the allocation of competences and the illusory public/private distinction, reflected in Federal Republic of Germany v. Parliament and Council (“Tobacco Advertising Judgment”), The Queen v. Secretary of State for Health ex parte British American Tobacco (Investments) Ltd. (“Tobacco Products Judgment”), and in cases now pending before the ECJ. Part III discusses the constitutionalization of tobacco and the ambiguity it engenders with respect to the Community’s federal structure. On the one hand, the Public Health Article can be used as a sword by the Community legislature, allowing intervention of a complementary and supportive nature. Community action may include “monitoring, early warning of and combating serious cross-border threats to health.” On the other hand, the Public Health Article may be used as a shield by States seeking to preserve their disparate public health standards. The Community thus bears the burden of proving that its proposed legislation is actually a market correction measure (rather than a disguised health measure) and does not violate the Subsidiarity Principle. Because of this ambiguity, the provision remains open to interpretation and is susceptible to policy arguments made by either side. Consequently, the constitutionalization of tobacco fails to clarify the allocation of competences and provides little guidance in determining the substantive outcomes of pending disputes.

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Liberal Internationalism, Feminism, and the Suppression of Critique

Article:

I have been asked to reflect on the significance of the range of new visions of global public order now circulating in the United States, and to consider, in particular, what has happened to the liberal consensus of twenty years ago. There are, of course, many directions that a response might take. One could question whether there really was a liberal consensus twenty years ago and, if there was a seeming consensus, what underlying concerns and tensions it attempted to mediate. One could focus on political science, economics, history, critical theory, postcolonial theory, or feminist theory and discuss how one or all of those has played a role in various challenges to liberal legal internationalism inside the United States. One could attempt to understand liberal legal internationalism in relationship to U.S. foreign relations and question the extent to which it emerged and coalesced around a particular view of the United States’ role in the global order. One might consider what, if any, causal relationship exists between the dissolution of the apparent consensus and the rise of what many consider to be a new American exceptionalism. And one might even consider whether liberal legal internationalism has unwittingly participated in constructing a new American exceptionalism.

I will not explore all of these questions here. Yet I will attempt to touch upon many of them through the consideration of a couple of recent examples of the Bush administration’s deployment of international legal rhetoric and process to protect women’s rights, and by examining the various critiques they have and have not engendered. In particular, I will look at the Bush administration’s intervention in Afghanistan and its support of international efforts to end sex trafficking.

I have chosen these case studies to understand contemporary views of international law within the United Sates for a variety of reasons. Since September 11, it seems that almost every international legal scholar in the United States has felt the need to write something about the war on terrorism, often specifically challenging or defending U.S. responses to September 11. As a result, it is more difficult today than it has been for some time to separate visions of public order circulating within the United States from visions of public order about the United States. Moreover, with the rise of a real right within the discipline of international law in the United States over the past decade and its manifestation in at least some of the Bush administration’s interpretations of international law, proponents and even designers of parts of the war against Iraq and the war on terrorism have effectively participated in and even altered the terms of much of the debate within the international legal academy. While liberal internationalists often contend that the Bush administration opposes international law, I would suggest instead that the administration is in many instances pursuing a vision of international law that does not accord with the liberal internationalist version that has dominated the past few decades. That is, the administration is often promoting a classical view of international law that is based on sovereign consent, at least on the sovereign consent of the United States.

The case studies suggest, however, that the Bush administration policies also contain a liberal internationalist streak. With regard to Afghanistan, the administration has appealed to liberal internationalist and feminist rhetoric about respecting human rights. In the context of trafficking, it has appealed to a liberal internationalist process that favors international cooperation. Thus, by offering examples where the United States claims to be protecting international human rights and even does so through a rhetorical, and in one instance procedural, commitment to international cooperation, these case studies question the characterization of U.S. foreign policy as an example of American exceptionalism. In addition, they show how the assertion of acting in the name of international human rights, particularly women’s rights, serves to silence much of the opposition that the substantive positions themselves might otherwise invoke.

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