I have a new working paper out: “Jurisdiction Unbound: Global Governance through Extraterritorial Business Regulation”. It is part of our PATHS project on change and stability in international law and tries to understand how the – traditionally very territorial – international law of jurisdiction has responded to pressures for change in a globalizing world. The upshot of the argument is that, despite much continuity on the surface, the categories of jurisdiction available to states have been transformed in such a way as to be virtually ‘unbound’ today. This expansion supports the unilateral regulation of global markets by powerful states, thus creating a structure of global governance in disguise. Acknowledging that jurisdiction is so closely interwoven with governance – and is not merely an expression of equal sovereigns in the international order – is the first step to tackling the accountability problems posed forcefully by unilateral regulation. The full abstract is below, the paper here. Comments welcome!
Abstract: The international law of jurisdiction is faced with far-reaching changes in the context of a globalizing world, but its general orientation, centered on territoriality as the guiding principle, has remained stable for a long time. This paper traces how, in contrast to the prevailing rhetoric of continuity, core categories of jurisdiction have been transformed in recent decades in such a way as to generate an ‘unbound’ jurisdiction, especially when it comes to the regulation of global business activities. The result is a jurisdictional assemblage – an assemblage in which a multiplicity of states have valid jurisdictional claims without clear principles governing the relationship between them, creating a situation in which, in practice, a few powerful countries wield the capacity to set and implement the rules. Jurisdiction is thus misunderstood if framed as an issue of horizontal relations among sovereign equals but should rather be regarded as a structure of global governance through which (some) states govern transboundary markets. Using a governance prism, this paper argues, can help us to gain a clearer view of the normative challenges raised by the exercise of unbound jurisdiction, and it shifts the focus to the accountability mechanisms required to protect not only the rights of targeted companies but also, and especially, the self-government of weaker countries.
Francesco Corradini, Lucy Lu Reimers and myself have a new piece coming out from our projects on Interface Law and Paths of International Law: “Order at the margins: The legal construction of interface conflicts over time”. It is available here, part of a special issue of the journal, Global Constitutionalism, on “After Fragmentation: Norm Collisions, Interface Conflicts, and Conflict Management”. The special issue, resulting from the OSAIC research group, tries to understand how conflicts between norms from different spheres of authority in global governance are dealt with and how they affect the overall global order. Our piece focuses on legal modes of processing such conflicts, and in particular on how these conflicts unfold (and shape order) over time. The abstract is below; an openly accessible version is here.
Abstract: Legal multiplicity in the global realm, and the interface conflicts that ensue from it, are widely thought to have a destabilising effect, blocking the path towards a more integrated and perhaps constitutionalised global order. While this diagnosis may appear plausible if interface conflicts are seen as snapshots and rivalrous institutions as the main actors, it is less convincing if we regard these conflicts as part of social processes of contestation that define the relations between different norms over time. It is also less plausible if actors with other orientations – norm irritation or navigation – are taken into view. This article works towards a more encompassing account, both temporally and as regards actor orientations. It uses two case studies of conflicts at the interface between economic governance and human rights to probe the plausibility of its conjectures. Both cases appear as instances of prolonged norm contestation which, despite continued irresolution of the underlying conflicts as a matter of law, have resulted in a significant reorientation and (partial) consolidation around new interpretations. This suggests that interface conflicts, rather than destabilising the rule of law, may also open a pathway for change in the otherwise rigid structure of the international legal order.
I have a short piece out on “Institutions under Stress: Covid-19, Anti-Internationalism and the Futures of Global Governance”. It’s part of a special issue of our Global Challenges @IHEID on the politics of the coronavirus pandemic with 17 contributions from colleagues – experts in global health, finance, history, human rights, tech politics etc – very much worth reading.
In my piece I argue that the Covid-19 crisis is unfolding against a background of growing populism and anti-internationalism around the world. This environment poses challenges for international organisations, most visibly with the Trump Administration’s decision to end cooperation with the WHO. In the longer term, the pandemic is likely to lead to significant changes in global governance structures.
The COVID-19 pandemic is likely to have serious domestic and international political consequences and to exacerbate existing trends to reshape the landscape of international and transnational institutions. In a post for the global, I highlight six trends which, when combined, could be dangerous for the structure of global governance as we know it. You can read it here: https://theglobal.blog/2020/04/17/covid-crisis-and-change-in-global-governance/
We have launched a call for papers for an interdisciplinary workshop on “The Paths of Change in International Law”, to be held in Geneva on 6 and 7 June 2019. The workshop, convened by Ezgi Yildiz and myself, is part of an ERC-funded research project on processes of informal change in the international legal order. The project asks how international law changes, how this change is registered among participants in legal discourses and how the pathways of change differ across issue areas and sites of international legal practice. The workshop will bring together leading and rising scholars from different disciplines – law, international relations, and political sociology – to explore these issues in a small and interactive format. We are particularly interested in sharpening the contrasts between different theoretical and methodological approaches, and invite participants to develop distinctive arguments rather than ecumenical accounts. Interested scholars should submit an abstract of no more than 300 words by 10 January 2019 at email@example.com. More information is available at https://paths-of-international-law.org/news/cfp/.
Next week will see a particularly joyful event, the inauguration of the Global Governance Centre at the Graduate Institute. Growing out of the Programme for the Study of International Governance, of which Annabelle Littoz-Monnet and I became directors last fall, the Centre aims to provide a platform for understanding how global governance develops, what impact it has, and what challenges it faces and from whom. It is interdisciplinary in nature, bringing together political scientists, lawyers, historians, economists, sociologists and anthropologists in the hope to create stimuli and deeper reflection on the evolution of global governance in an ever more complex and contested world. We discuss scholarship in our Global Governance Colloquium and around occasional public lectures. Research projects at the centre inquire – among others – into United Nations reform, the mission creep of international organizations, international sanctions, and the interface laws between different spheres of authority in global governance.
We mark the inauguration of the Centre with a lecture by Michael Barnett, Professor of International Affairs and Political Science at the George Washington University, and a leading scholar on international institutions and global governance. Speaking on “Is the UN a source of progress?”, Michael Barnett will explore the hopes, fears and problems encountered by the world organization – and shed light on the conflicted world order more generally. The lecture will take place on Tuesday, 13 March 2018, at 18h30 at the Graduate Institute. More information on the event is here; more information on the Global Governance Centre and its various projects can be found here. We hope to involve many of you in the work of the Centre!
Later this week in Barcelona, IBEI and ESADEGeo will host an exciting workshop on ‘Access and Exclusion in Global Governance’ that I have co-organized with Miriam Bradley (IBEI) and Angel Saz Carranza (ESADEGeo).
Global governance today involves a wide range of actors, ranging from governments to civil society organizations and multinational corporations, both in formal international organizations as well as in novel, transnational settings. The ‘opening up’ of global governance has been widely hailed for ushering in broader participation and closer links with the public sphere, while it has also drawn critique from those who fear capture by special interests the marginalization of states, governments and the public interest. However, we still know little about which actors enjoy what kind of access, and with what consequences. On the flipside, we know little about who is excluded, formally and informally, and the problems this creates. With this workshop, we seek to place access and exclusion into the centre of attention and gain greater clarity as regards the variety of questions that surround them.
We are lucky to have a great line-up of speakers from political science, international relations and international law. The workshop is supported by the Thyssen Foundation. The programme and more information is here; if you are interested in coming, please contact Carlos Sanchez at firstname.lastname@example.org.
As part of my new ERC project on “The Paths of International Law: Stability and Change in the International Legal Order”, I am looking for two doctoral students with a background in either international relations or international law (and knowledge of the respectively other field). The position will be for one year in the first instance, with a possibility of extension up to three years; the envisaged start date is 1 October 2018. Candidates have to be, or apply to become, enrolled in the PhD programme of the Graduate Institute of International and Development Studies in Geneva. Details on the post and on how to apply can be found here. A project outline is below. I look very much forward to working with two enthusiastic young scholars on this project!
The Paths of International Law: Stability and Change in the International Legal Order Abstract
International law erects high hurdles for change – typically unanimity or a uniformity of practice of states – and this high threshold has provoked much criticism for hindering the pursuit of justice, the provision of public goods, and the democratic revision of political choices. Yet in different areas, such as international criminal law or the law of international organizations, international law has in recent times undergone more rapid change than the traditional picture would allow, and often in informal ways that do not fit classical categories. However, this greater dynamism has found little sustained attention in scholarship so far.
The PATHS project seeks to fill this gap and understand when and how international law changes, how this change is registered among participants in legal discourses and how the pathways of change differ across issue areas and sites of international legal practice. Drawing on scholarship in international law and international relations, it aims to trace attempts at informal change in international law in six issue areas, identify relevant factors behind the developments in those cases, and understand how they relate to the formal categories of international legal change. The project expects significant variation in the ‘paths’ of change in different contexts and issue areas, with an important role for global institutions – international organizations, courts, and expert bodies – in many of them. PATHS also seeks to assess these paths normatively: it explores what mechanisms for change would be legitimate in an international legal order that has increasingly turned from a quasi-contractual institution into a structure of governance with a far more limited role for state consent than in the past.
With this focus on change, PATHS aims to make a major contribution to our understanding of international law, its political dynamics, as well as its normative grounding in a globalised world.
The International Society of Public Law (ICON-S) will hold its 2018 Annual Conference in Hong Kong on June 25-27, 2018, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Comparative and Public Law . This will be the fifth Annual Conference of ICON-S, following the four Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017) which have been great successes and a fantastic opportunity for exchanges across the different fields of public law. ICON-S now invites paper and panel submissions for the 2018 Annual Conference. The overarching theme of the Conference will be “Identity, Security, Democracy: Challenges for Public Law.” The deadline is 31 January 2018. The call, as well as more information on the conference, can be found here. Please don’t hesitate to submit your ideas!
Today I have a blog post out at Verfassungsblog on ‘The Spanish Constitutional Crisis: Law, Legitimacy and Popular Sovereignty in Question’. In it, I try to disentangle the current debate on how to approach the Catalan quest for independence. In particular I question the frequent turn to Spanish constitutional law as the yardstick for assessing questions around the independence referendum on 1 October. The Spanish constitutional order is only one of different legal orders at play in the conflict, and it also faces serious legitimacy challenges, due to its history and its lack of responsiveness to democratic claims from regions and minorities within Spain. Instead of merely insisting on constitutionality, we need to demand a politics of recognition in which the different parties conduct a meaningful dialogue on their future relation. If the Spanish government keeps refusing to enter such a dialogue, it will lose its claim that Catalans should channel their grievances inside the Spanish constitutional order – and a declaration of independence would appear increasingly justified.