International Law and the Future of Freedom

John H. Barton

• Publisher: Stanford Law Books
• Year: 2014
• ISBN:
  9780804791083
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

International Law and The Future of Freedom is the late John Barton's exploration into ways to protect our freedoms in the new global international order. This book forges a unique approach to the problem of democracy deficit in the international legal system as a whole—looking at how international law concretely affects actual governance. The book draws from the author's unparalleled mastery of international trade, technology, and financial law, as well as from a wide array of other legal issues, from espionage law, to international criminal law, to human rights law.

The book defines the new and changing needs to assert our freedoms and the appropriate international scopes of our freedoms in the context of the three central issues that our global system must resolve: the balance between security and freedom, the balance between economic equity and opportunity, and the balance between community and religious freedom. Barton explores the institutional ways in which those rights can be protected, using a globalized version of the traditional balance of powers division into the global executive, the global legislature, and the global judiciary.

CHAPTER ONE

Prolegomenon

Under a series of resolutions beginning in 1999, the United Nations Security Council, acting under its powers to issue mandatory decisions, has authorized creation of a list of individuals and entities designated as associated with terrorist networks. These individuals and entities are subject to asset freezes and travel sanctions. Individuals and organizations have no right to contest their designation. If a nation applies a sanction against an individual, should that individual have the right to contest the designation as a matter of a fundamental human right to due process or should the sanction stand without judicial review on the grounds that the Security Council resolution overrides national law?¹

Our emerging global political system governs at several political levels: local, national, and international. At the national level, a number of nations, most particularly the United States, exercise significant power well beyond their borders. At the same time, and even in spite of the U.S. Bush administration’s emphasis on unilateral rather than multilateral action, the power of international organizations is increasing. The United Nations has been playing an increasingly important role since the end of the Cold War and seems likely to gain new power in nation-building contexts. The World Trade Organization (WTO) has become a dominant world legislative body, and international financial institutions, such as the International Monetary Fund (IMF) and the World Bank, are essentially shaping the economies of all but the wealthiest nations of the world. At the regional level, the European Union (EU) retains enormous power, in spite of the failure of the proposed new European constitution, and is being imitated in several other areas such as Mercosur in the Southern Cone of Latin America.

Even though international organizations are increasing their power, the nation-state is not disappearing. Moreover, international organizations are often dominated by a few members, so that they respond to the interests of those members. The world will necessarily therefore have power divided between different levels of government. This can be a source of conflict; it can also be a source of opportunity, because divisions of authority can help avert misuse of power.

This book begins by exploring multilevel governance itself, building in particular on the two leading historical examples—the construction of the United States and the construction of the European Union. But before detailing the lessons of these histories, it is essential to explore the shift of power to international organizations, the meaning of freedoms in a multilevel context, and the incrementalism through which the international order is being built and through which freedoms can be protected. The chapter begins, therefore, by reviewing these areas and then exploring the possibility of dividing sovereignty. It next looks at the specific processes that are shifting power to international organizations, and then turns to the factors that strengthen or weaken international institutions, looking at those factors deriving from the interests of the member governments, and at those deriving from citizen loyalty to the different levels. It then turns to some of the practical issues that affect the sustainability of dividing governmental responsibility. It finally draws lessons for the analysis of the current global governance system.

The key lessons are that the effective authority of centralized government systems derives in large part from political evolution that takes place separately from, and after the formal creation of, the centralized authority, and that creating new protection for freedoms generally requires a constitutional crisis. Institutions become facts that create their own dynamics; control of the dynamics requires confrontation.

1.1. Globalization and international organization

In today’s world, the exercise of power beyond national boundaries and the transfer of power from the traditional nation-state to international organizations are neither avoidable nor per se undesirable. Much economic activity achieves economies of scale only at levels beyond the size of most nations. Important environmental effects occur on global levels and not just on national levels. Security threats may be posed in a poorly governed area of one nation, and yet be a threat to all. There will thus inevitably be action beyond national boundaries. In this book, “globalization” will be taken to describe all these trends that effectively override national boundaries.

Likewise, there will inevitably be stronger and stronger international mechanisms for the coordination of national policies and sometimes for direct international action. For industry to provide the benefit of economies of scale, there must be ways to negotiate over the political costs of economic change and to define mechanisms to resolve trade disputes. For the environment to survive, there must be new mechanisms of exchanging information and shaping economic development. For security threats to be met, there must be ways to authorize national and international action—even, sometimes, at the cost of impinging on traditional national sovereignty.

These developments are often good, and they can bring benefit to all human beings. Hence, this book starts with a presumption that globalization and international organization are generally good things. Yet we traditionally protected our rights through mechanisms that operated within nation-states and sometimes only within the territory of nation-states. Obviously those mechanisms need to be revised to deal with globalization and international organization. And developing and strengthening such new mechanisms will help make it politically possible to expand the powers of international organizations.

1.2. Rights

In order to deal with global issues, it is necessary to distinguish four groups of rights. Each group translates in a different way to the international order. The first group, or inherent rights or freedoms, comprise those that inhere specifically in the individual—that is, rights of freedom of religion, of speech, of privacy, and protection against unreasonable searches, and of freedom from torture, together with trial-oriented rights such as rights to hearings, to counsel, to confront witnesses, not to be forced to testify against oneself, and the like. These are the rights found in the eighteenth-century U.S. Bill of Rights, in the French Declaration of the Rights of Man, and in more recent formulations such as the 1966 International Covenant on Civil and Political Rights; they can be viewed as at the heart of any rule of law. The even more recently formulated rights against torture and the right against capital punishment (accepted in Europe but not in the United States) clearly also belong in this category, as do the rights of business and individuals to hearings and to due process in administrative proceedings. Although the details will be analyzed in subsequent chapters, this book takes the position that these rights are valid against all governments under nearly all circumstances, with only limited exceptions deriving, for example, from the need sometimes to permit a government to collect intelligence information about foreign nationals by means that would not be permissible against nationals. This is a matter of taking seriously the freedoms of all. Approaches to protecting these rights against extraterritorial and international action and to carefully defining the exceptions are central to this book.

The second group of rights includes just one right, that of equality. This right is much more a nineteenth-century than an eighteenth-century one; its key formulation in U.S. law was in the 14th Amendment following the Civil War. Conceptually, this right depends on a comparison between one group or person and another group or person—and therefore raises the question of defining the group against which the comparison is to be made. As one thinks internationally, there is a question of when that comparison should be made just within a nation, and when it should be made also with groups in other nations. The degree of equality demanded within a nation is itself frequently debated, and there are significant differences in the practice of different nations. Consider, for example, the U.S. debates over affirmative action, and the great tensions over the status of women in Muslim nations. And the degree of equality demanded when groups in different nations are compared with one another is clearly less than that demanded within a nation.

The third group of rights is that demanded by the late-nineteenth and early-to mid-twentieth-century move to provide a social and economic safety net. These include the rights to education and health, a right to unionize, and perhaps a right to a broader safety net in unemployment, disability, or old age. These rights were first strongly applied by Bismarck in nineteenth-century Germany, but they spread to many other European nations, and, with the New Deal, to the United States in the twentieth century. They are today codified in the International Covenant on Economic, Social and Cultural Rights (also 1966). Some would add the right to a healthy environment. Some leaders in developing nations argue that these rights override the inherent rights discussed above, and many human rights scholars, emphasizing the need for economic development in poorer nations, argue that these rights (at least the economic and social ones) have equal priority to civil and political rights. Yet it is clear that these rights are much less well defined than civil and political rights, and that they are enforced in a different way as well. Moreover, like the equality right, these rights become ambiguous in the international context—the scope of the duty of an individual nation’s government to provide for, for example, the health of its own citizens is itself in debate, and a nation’s (or the international order’s) obligation to provide for the health of the citizens of other nations may be real, but is certainly less strong. Yet the ability of individual nations to provide for the exercise of these rights is weakening in the face of globalization; achievement of the rights in each nation may therefore itself require changes in the international system. Thus the definition and achievement of these rights pose an additional set of challenges to the international order.

A final group of rights includes those oriented toward political participation in a government. These include, for example, the right to vote, the right to be represented in a legislature, the rights to participate in elections and to vote out a government, the right to petition, and the right to bring certain kinds of litigation against a government. Arguably, the right of free speech is included in this group as well as in the group of inherent rights—and these participatory rights are meaningless unless there is a rule of law and a civil society with free speech. Certain aspects of administrative law—for example, the obligation of an administrative agency to follow the rules imposed on it by a legislature, and the freedom of information principle to help restrain a government—are among these rights. This group is reasonably defined to include structural features of government: for example, depending on the particular society, the right to a government that incorporates a balance of powers concept or a form of parliamentary responsibility.

It is these participatory rights that were most important in the American Revolution of 1776. They are spelled out, for example, in the political structure of the U.S. Constitution, in the U.S. federal guarantee of a republican form of government, in quasi-constitutional statutes such as the Administrative Procedure Act and the Freedom of Information Act, and in many of the provisions of the International Covenant on Civil and Political Rights. Arguably, these rights are complemented by obligations, such as that to pay taxes or to participate in military action in defense of one’s country. Clearly, this group of rights is oriented to participation in a particular society or community—rarely would we expect noncitizens to have a right to vote. Nevertheless, although these rights currently run only rarely against international organizations, many should be extended against such organizations under at least some circumstances. Moreover, it is important that certain of these rights be respected in each nation in order to make it less likely that the nation will become a threat to others.

1.3. Incrementalism

Much political theory assumes a prior state of nature of some form. Thus Hobbes begins with a state of nature in which there is no government; Rawls envisions a state in which people choose certain justice principles in the face of a veil of ignorance in which they do not know whether they will be winners or losers. This book, however, resists such an approach, and builds instead on a concept of incrementalism. Under the analysis of this book, justice is achieved by a series of incremental changes and improvements, built on a constantly changing vision of improved justice as a reform to what is always an imperfect system. In that sense, the book reflects Burke’s insights of the value of inherited systems—but is much more ready than Burke to criticize those systems and to seek to improve them.

At least by some versions of evolutionary anthropological and historical development, this incrementalism is accurate. Going back to primate group structures, there must always have been some form of authority, whether of parents or of the more powerful. Most historical states were formed by actions of power, almost always extraconstitutional in some sense. Afterward, through one or another political process, restraints were imposed on this power, and a body of political and constitutional limitations evolved. Consider, for example, the steps of Magna Carta, the seventeenth-century English Revolution, and the nineteenth-century reform efforts in leading Britain from arbitrary authority to a representative democracy. In the United States, one would consider the political institutions inherited from England, the revolution, the Confederation, the Constitution, and the post–Civil War amendments as part of a similar process. Although there are exceptions such as the nineteenth-century British reforms, the imposition of these restraints typically required confrontation or crisis—the U.S. Bill of Rights was a political price that had to be paid for the acceptance of the Constitution; the 14th Amendment derived from the U.S. Civil War, and many of the key concessions in British constitutional history emerged from civil war or its threat. Moreover, many would say that the nineteenth-century move to economic and social rights was an effort to avoid stronger socialistic reforms.

At the international level, the world is, of course, much closer to a state of nature. In that sense, any creation of an international organization is similar to a Lockean social contract. Yet, there has long been some sense of an international law, going back well before Grotius and Vattel (in fact, before the creation of the nation-state system). This has grown. The Congress of Europe was an attempt to govern the post-Napoleonic system. The development of new law was intensified with the institutionalized Hague conferences of the turn of the nineteenth to twentieth centuries. Beginning with the nineteenth-century International Telecommunications Union and Universal Postal Union, and going on to the post–World War I League of Nations, the post–World War II United Nations, and World Bank and IMF, and an enormous flowering since then, international organizations have evolved and strengthened. Force played a role in creating some of these organizations; for example, the United Nations was created by the victors of World War II. Moreover, there has been (and still is, as exemplified by the British role in Sierra Leone in 2000) a Pax Britannica, and there is a Pax Americana. Yet at each stage and for over a century, there have been efforts to strengthen international order—through new organizations or new law or new roles for existing organizations. The United States may have struggled against the United Nations in going to war in Iraq in 2003—yet it has also sought to strengthen international economic and antiterrorist organizations. There is already a complex of mechanisms contributing to an international order. And there will be further steps.

The implication of incrementalism is that the political theorist’s task is generally not to rethink things from the ground up, but to improve what is there. There will never be an international conference completely restarting the international system—rather there will be conferences to improve what is there and, in between conferences, there will be political changes and evolutions that make particular international institutions more or less powerful. There may even be revolutions against particular aspects of the international system, but they are likely ultimately to lead to entities that build on their predecessors, as the United Nations built on the League. Moreover, the task of construction of a more just international order will never be finished. What is needed today is to define the changes that are essential to protect the rights and freedoms that are currently affected by international organization and by globalization, and to define incremental improvements that will effect these protections.

1.4. Sovereignty is (somewhat) divisible

Much discussion of international organization begins with a distinction between systems in which, in the one case, sovereignty remains at the national level and a confederation is created and, in the other case, sovereignty is transferred to the international level and a federation is created.

This is a false distinction, because sovereignty can be divided, most typically along functional lines. Thus, in the United States, the federal government is sovereign with respect to international affairs and interstate commerce. At the same time, the individual states retain at least a formal sovereignty, and have nearly absolute control over many aspects of life, such as marriage and inheritance law. And in the European Union, EU authorities have effectively sovereign control over many economic areas, while national governments retain effective sovereignty over foreign policy.

One can argue that there is still a question as to the “real” sovereignty of the states in the United States or of the international system in the EU. Typically, one of the levels possesses a monopoly of force—one of the traditional definitions of sovereignty. After all, as demonstrated by the Civil War, a state is no longer effectively free to leave the U.S. system—in that sense, the U.S. states are not “really” sovereign. Similarly, the member states of the EU are certainly able, freely, to leave, and the central authorities of the EU are not in a position in which they can override strong national sentiments—in that sense, the EU is not “really” sovereign. Yet, before the Civil War, it was not clear where the monopoly of force resided—its locus was ultimately measured in a test of wills and military capabilities.

In general, the extreme situations that test the location of sovereignty are just that—extreme. They are situations avoided by politicians and the public whenever possible. In the United States and in the European Union, both levels of government, state and federal in the one case, and national and European in the other, serve important functions. Each level provides benefits to the other and to the public. There are citizens strongly loyal to and interested in the preservation of each level. Each level has its resilience and its ability to stand up to the other level.

1.5. Constitutional moments: the creation and reform of multilevel government

The incremental analysis presented above recognizes two ways in which a group of nations (or sovereign states, in the case of the United States) can create a higher level or international government. These are by agreement and by power. The classic example, of course, is the creation of an institution by an agreed treaty or document: the Philadelphia Convention leading to the U.S. Constitution of 1787, the nations of the world creating the United Nations at San Francisco in 1945, or six nations of Europe creating what became the European Union at Rome in 1957.

What is needed for this process to happen is a constitutional moment, based on a strong sense of need and on a careful crafting of the political balance in such a way as to persuade the essential component-members to participate. Major changes are unlikely to happen except through a crisis. The United Nations was organized in the wake of a world war. The Philadelphia Convention of 1787 was called in response to a widely shared sense that the Confederation wasn’t working, and perhaps to James Madison’s sense that there needed...

Table of contents

• Cover
• Copyright
• Title Page
• Contents
• Foreword
• Preface
• Introduction
• 1. Prolegomenon
• Part I: Defining Freedoms
• 2. Security and Freedom
• 3. Economy and Equality
• 4. The Intangibles of Governance
• Part II: National and International Institutions
• 5. The International Executive
• 6. The International Legislature
• 7. The International Judiciary
• 8. Where to Begin?
• Notes and Index
• Notes
• Index