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Between Globalism and Territoriality: The emergence of an international constitution and the challenge of ecological legitimacy.
Published online by Cambridge University Press: 09 June 2015
Extract
This paper is being written as the implications of September 11 continue to reverberate worldwide, its consequences going who knows where. Nothing, we are told, will be the same again. One aspect of this change will be how we think about international society, including its legal character. In this quest to understand international law in this changing, and uncertain, context, this paper posits a different sort of analysis, one that addresses the dialectical tension between globalism and territorialism. Globalism describes the emerging globally comprehensive legal (and political and economic) regime organized around expanding forms of centralized power. In contrast, territorialism describes an incipient movement to support a diversity of social and physical realms of authority rooted in a geographic tapestry of self-maintaining forms of place-based power. Both terms describe competing forces of social organization such as customary versus bureaucratic forms of regulation. These forces have long existed in a dialectical tension that, neither separate nor distinct, interpenetrate in countless aspects of political and economic life.
This dialectical tension permeates human history, but its operational character has been little considered, and its significance little understood. The conception of “territory” is a particularly complex one (especially when understood in its full historical sweep) that has a strong relevance to that foundational concern of international law, sovereignty. Externally, the territorial state is the legal subject. The challenge of this paper is to convey a vision and analytical framework that seeks to understand territory in a fuller sense than is traditionally used. To do so, this paper rechacterizes the increasingly centralized power structure from the perspective of ecological political economy. This perspective is particularly relevant to this age of ecological limits and global constitutionalism.
Based on this ecological analysis, the paper proposes a notion of territoriality that gives prominence to the state’s historical other--place-based institutions of cultural and community authority. A territorial framework is then presented as an alternative conception of international ordering to that embodied by globalism. In its self-maintaining diversity, plurality of discursive practices/ways of knowing, and wariness towards the universalizing state-centered system, the territorial approach seeks to put in practice many lessons of the postmodern critique. To pursue this line of enquiry exposes to scrutiny a host of foundational beliefs and assumptions about modern economic and political life. Nevertheless, at the beginning of the 21st century such enquiry is again critically important for international lawyers because the sustainability of continued centralized growth is in question, while its momentum into a constitutional dead-end resists re-direction.
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References
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35. Black’s Law Dictionary, 6th ed.
36. See, for example, Daniel Bodansky “The Legitimacy of International Governance: A Coming Challenge For International Environmental Law?” (1999) 93 A.J.I.J. 596 at 610–11. Bodansky discusses how concerns of legitimacy within international environmental law are bound to grow as environmental decision-making at the international level begins to address subjects previously addressed solely by national law. He further argues that the role of specific state consent in legitimating international environmental law and governance is declining as these institutions and arrangements are having significant implications on non-state actors (the “objects” that Maggio refers to: supra note 24), rather than being solely focused on relations between states. For example, fishing regulations limit and affect the lives of fisher-people, not the “state.” In response to this decreasing legitimacy, Bodansky argues “that environmental ‘foreign’ policy needs to be ‘democratized’—ifneeds to be subject to the same safeguards and public accountability as domestic regulations.”
37. See Richard Higgott, “Contested Globalisation: The Changing Context and Normative Challenges” (2000) 26 Rev. Int’l Studies 131.
38. Philip G. Cerny, “Paradoxes of the Competition State: The Dynamics of Political Globalization” (1997) 32 Government and Opposition 251 at 254–55. In this article, Cerny also characterizes this shift as being from the state as protector of common interest/community (Gemeinschaft), to “a mere pragmatic association for common ends…an ‘enterprise association’” (Gesellschaft).
39. Supra note 28 at 172.
40. Hempel, Lamont C., Environmental Governance: The Global Challenge (Washington, DC: Island Press 1996)Google Scholar at viii.
41. Its postmoderness is manifest in many ways, including the diversity of its composition, changingness of its character, and self-determining quality. For example, it might begin to even break state bureaucracies away from the monolith of the state, where like-minded bureaucracies (i.e., aid agencies) or lower level jurisdictions develop transnational linkages that reinforce their power within the state.