Saturday, November 04, 2017

Just Published: Joel Slawotsky, "The Clash of Architects: Impending Developments and Transformations in International Law," The Chinese Journal of Global Governance (2017) 3(2):83 – 159

I am happy to report the publication of Joel Slawotsky, "The Clash of Architects: Impending Developments and Transformations in International Law," The Chinese Journal of Global Governance (2017) 3(2):83 – 159.  Joel Slawotsky teaches at the Radzyner School of Law, Interdisciplinary Center, Herzliya, Israel, and the Law and Business Schools of the College of Management, Rishon LeZion, Israel.

The abstract nicely describes the article's objectives:
The world stands at the precipice of a transitional moment in the international law writ caused by the reasonable likelihood that new architects will be joining (and eventually supplanting) the present-day architects. Transformative geo-political and economic developments such as OBOR, the AIIB, NDB and the increasing internationalization of the Yuan all herald potentially significant changes to the existing international governance architecture. “Revisionist” states with strong motivations and global ambitions, may will become international law creators as these new architects influence the economic and legal orders. International law is not static and several of the new architects’ customs and norms inherently conflict with current Western ideals. Will international law norms converge? Will Western notions gravitate towards the other spectrum in enlightened self-interest? The impact on international law norms, enforcement, human rights, sustainability, trade and investment treaties and arbitration will be far-reaching. Understanding how this potential re-orientations in power will affect international law is of critical importance.
The article's Table of Contents:  Introduction; (1) The Historical Context of the Global Economic and Legal Orders; (2) The Current Framework Challenged; (3) The New Architects Knocking at the Gate;
(4) Ramifications and Challenges of the New Architects on International Law; Conclusion.

The article may be accessed HERE.  The introduction follows.  It is a highly recommended read.

Joel Slawotsky   
The Chinese Journal of Global Governance

(2017) 3(2):83 – 159

The world stands at the precipice of a transitional moment for international law affecting both the creation and enforcement of international law; 1 access to financial markets; 2 and global power politics. 3 The reason for this historic shift is the reasonable likelihood that new creators (i.e., architects) of international law will be joining and possibly supplanting the present-day architects. 4 To be an architect of international law is to wield significant power 5 since the financial and legal orders are inextricably linked to the formation, context, interpretation, application and enforcement of international law. For example, powerful states (i.e., the existing architects) are rarely targets of trade sanctions, yet are uniquely positioned to employ trade sanctions against actual and/or potential rivals. 6

The international legal architecture plays an integral role in the global strategic and financial orders.
However, the vocabulary for analyzing u.s. power overseas is largely military and economic, as evidenced by terms such as “gunboat diplomacy” and “dollar diplomacy.” … The exercise of American power has been rarely based merely on the assertion of sheer economic and military might. From the beginning, it has been mediated through the language of law, as a matter of right. 7

Who are the present architects of international law? The current founders of international law’s global economic and legal architecture are the “civilized” or “advanced” nations of the world 8 —the Western Anglo powers 9 led by the United States—“the indispensable nation”. 10 International law architects are those nations which constitute the “civilized” nations of the world 11 based upon the laws of sovereigns belonging to the group of “civilized nations of the world.” 12 Since the 1800s this terminology has referred mainly to Western European nations and later in the 20th century, to the United States and its allies. 13 As Chief Architect, the United States has benefited greatly.
The dangers of such arrogant and abusive “universalism” are especially striking in international relations, where normative disputes that cannot be resolved by rational persuasion or appeal to agreed upon international norms tend to be settled by (political, economic, and cultural) power—of which United States today has more than anyone else. 14
Large swaths of “other nations” located elsewhere have traditionally been considered “uncivilized” and have thus been “outcasted” as sources of international law.
[T]he vast majority of Asian states literally did not participate in the negotiation of most of the agreements that define the modern international order … These observations are not unique to Asia, of course. Indeed, one could make a compelling case that the disenfranchisement of African states during these formative periods of international law was far greater. 15

The existing political and economic mechanics of the global financial governance order—trading, lending, development—has been dominated by the United States and u.s. led international financial institutions such as the imf, the World Bank and the icsid—which are all based in Washington d.c. 16 In addition, the United States Dollar—the currency of the world’s largest economy—has reigned supreme as the most desired currency of international business and global trade 17 and forms the principle reserve currency of the world’s central banks. 18

Moreover, American military power has been vigorously projected to enforce the existing architecture. Dozens of United States land, sea and air military bases are embedded strategically in a large number of nations and powerful American warships and aircraft carriers sail throughout the strategic waterways of the globe. 19 No other nation’s taxing authority mandates disclosure from another sovereign’s financial institutions. 20 No other sovereign’s courts wield such power and influence. 21 The judicial arm of Federal courts is extensive. 22 Indeed, as with its military, the reach of u.s. justice is global. 23 Even rivals admit that the United States is “the” superpower 24 and send their children to u.s. educational institutions. 25

Notwithstanding these superlative indicia of leadership, an incipient adjustment is well-underway that poses potentially serious challenges to the intellectual construct of international law being created and enforced through the lens of the present-day “civilized nations.” The precipitating factor fostering these developments is the rise of “competitor states” and/or “revisionist states”—i.e., the new potential architects of international law.
A range of competitors will confront the United States and its global partners and interests. Contested norms will feature adversaries that credibly challenge the rules and agreements that define the international order. 26

New builders (i.e., architects) are positioning for a significant role in shaping international law and contesting the existing global governance architecture.
Rising powers including for example, China, Russia, India, Iran, or Brazil have increasingly expressed dissatisfaction with their roles, access, and authorities within the current international system. The inability or unwillingness to accommodate the aspirations of these powers in the future may increasingly cause some states to challenge or even reject current rules and norms. 27

Ramifications of the new landscape will offer striking opportunities and immense challenges in the realms of the international law writ—the definition and applicability of international law, treaty negotiation, global power balances, global trade, international monetary institutions and finance.

This transformation, currently well-underway, is enabled primarily by remarkable rising economic power. 28 As will be discussed infra, the shift from strict adherence to the post ww2 institutional frameworks such as the dominance of the imf and World Bank, the weakening of the unchallenged premier status of the United States Dollar 29 and other geo-political shifts such as the obor initiative, 30 all herald potentially significant changes to the existing international legal and economic architecture. 31

It would be naïve at best to presume that competitors will not contest the present architects. In fact, it would be an historical anomaly if the current legal and financial orders would not be significantly altered to comport with the advancement and furtherance of the beliefs and goals of the rising power(s).
In particular, there does not appear to be a comparable example of a great power (or multiple powers) rising within a normative framework not of its own making, where that normative framework has not undergone substantial change or revolution as a result of the new power’s values and interests. 32
As former Treasury Sec. Jack Lew remarked:
The alternative [to the us led order] will be a loss of u.s. influence and our ability to shape international norms and practices that ensure an open, resilient global economy. 33

This Article raises the question of how the rising prominence of “competitor” and “revisionist” states will collide with current notions and values in international law. The question poses a most serious implication for international law—a definitional moment as several of the new architects’ customs and norms conflict inherently with current Western ideals. Will international law norms of the “newly civilized” converge closer to the Western ideal? Will Western notions gravitate towards the other spectrum in self-interest?

The question of how the new architects will influence international law has not been examined—nor could it—as the empowerment of the new architects is a recent phenomenon. The stakes for not addressing these issues have never been higher given the increase our inter-connected world. 34 The failure to acknowledge and plan for this impending transformation will inevitably lower overall global prosperity, reduce international cooperation and possibly lead to greater military conflict. This Article proceeds as follows: Part 1 discusses the historical context of modern international law. Part 2 describes the increasing influence and power of the new architects and the impact on the existing framework. Part 3 provides examples of some new architects and the different norms these nations espouse. Part 4 examines the implications of the clash between the existing and new architects of international law.

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