The Perils of Global Legalism

Overview

Drawing on such examples as NATO's invasion of Serbia, attempts to ban the use of land mines, and the free-trade provisions of the WTO, Posner demonstrates throughout that the weaknesses of international law confound legalist ambitions - and that whatever their professed commitments, all nations stand ready to dispense with international agreements when it suits their short - or longterm interests.

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Overview

Drawing on such examples as NATO's invasion of Serbia, attempts to ban the use of land mines, and the free-trade provisions of the WTO, Posner demonstrates throughout that the weaknesses of international law confound legalist ambitions - and that whatever their professed commitments, all nations stand ready to dispense with international agreements when it suits their short - or longterm interests.

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Product Details

  • ISBN-13: 9780226675749
  • Publisher: University of Chicago Press
  • Publication date: 10/1/2009
  • Pages: 296
  • Product dimensions: 6.10 (w) x 9.10 (h) x 1.00 (d)

Meet the Author

Eric A. Posner is the Kirkland and Ellis Professor of Law at the University of Chicago Law School. He is the author or coauthor of several books, including Terror in the Balance: Security, Liberty, and the Courts, and The Limits of International Law.

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Read an Excerpt

The Perils of Global Legalism


By Eric A. Posner

The University of Chicago Press

Copyright © 2009 The University of Chicago
All right reserved.

ISBN: 978-0-226-67574-9


Chapter One

The Utopian Impulse in International Relations

People around the world have always faced serious problems of a global scope, problems that could be solved only if governments cooperate. For a long time, the chief such problem was that of war, but there were many others—the international slave trade, beggar-thy-neighbor trade policies, and the spread of disease. In modern terms, these are problems of collective action, and the logic of collective action explains why these problems are so hard to solve.

GLOBAL COLLECTIVE ACTION PROBLEMS

Economists call the various essential goods and services that cannot be supplied privately—including defense against external aggression, law enforcement, a currency, a social safety net, enforcement of property rights and contracts, environmental protection, a transportation infrastructure, basic education, and so forth—public or collective goods. These goods are those that are most efficiently supplied at a scale beyond that available to individuals or corporations: they are solutions to collective action problems. Yet governments fail to supply their populations with public goods that exist at a scale that transcends national borders—what I will call global public goods. Global collective action problems pose the most significant challenges of our time.

War. Two states go to war. Not all wars have spillover effects—many remain the affair of just two belligerents—but most do. The war produces refugees who seek shelter in neighboring states, causing turmoil there, too. Meanwhile, the belligerents make trouble with their neighbors, trying to enlist others in their cause. Trade is disrupted, and war and destruction spread as previously neutral states are drawn in. It would be much better if war had been prevented from starting in the first place or could have been confined to the initial belligerents. An internationally enforced rule that prohibits war and requires states to resolve their disputes peacefully would be an enormous benefit to humanity. But such a system is not in place. Rules against war exist, but states often ignore them, and interstate war remains a problem today as in the past.

Pollution. Pollution does not stop at national boundaries, and states have long struggled to resolve disputes where a polluting state harms the people in another state. By and large, states could resolve these disputes through negotiations and ad hoc agreements. In recent years, however, technological changes have made interstate pollution problems more severe. Chlorofluorocarbons and other emissions have created a hole in the ozone layer over Antarctica. This hole has spread over populated areas, where individuals are at heightened risk of skin cancer. The Chernobyl nuclear disaster of 1986 spread radioactive debris over not just the Soviet Union, where the accident occurred, but over much of Europe, as well. The burning of forests to clear land for farming in Indonesia creates smog over China and other countries in that region. Most important, industrial activity has created the problem of global warming. Yet there is no international environmental law to speak of. A single treaty regime, the Montreal Protocol on Substances that Deplete the Ozone Layer, has to date effectively addressed the problem of the ozone hole, but for every such success, dozens of other problems only get worse.

Overfishing. The oceans' fish stocks have been seriously depleted, with some scientific studies claiming that if current practices are not modified, many fisheries could eventually be destroyed. Fisheries are classic public goods. If they are overfished, they will disappear. Thus, it is in everyone's collective interest to maintain fishing levels at sustainable levels. However, this is not in any individual's personal interest, because most of the harm one inflicts by pursuing one's own personal interest will be absorbed by others. Within their jurisdictions, governments can solve this collective action problem, but states have a hard time cooperating to preserve ocean fish and whales outside their own territorial waters. Many treaties and other agreements attest to the importance of the issue: everyone sees that states have to cooperate to preserve fisheries. But states nonetheless cooperate very poorly, which has led to the depletion of the world's fish and whales.

Disease. Disease has always crossed borders. Just as the great plagues of the past spread via merchants and other travelers, today many experts fear the rapid transmission of a virulent strain of avian infl uenza over the modern transportation network might soon cause a worldwide pandemic. The SARS outbreak of 2002–2003 killed several hundred and severely disrupted travel. Quick detection and quarantine in a state of origin would benefit victim states—but an originating state has few incentives to be vigilant on behalf of other states, since it does not bear the full cost of the pandemic. States of origin may in fact have an incentive to hide the outbreak, so as not to scare off foreign investment and tourism, until the pandemic becomes uncontrollable and can no longer be hidden in any event. China covered up the SARS outbreak at first. Sharing of early evidence of an outbreak would clearly be collectively beneficial, but individual state interests are in conflict.

Terror. Before 9 /11, states dealt with terrorism mostly as a crime problem, as much of it is domestic. International terrorists often aim to draw other states into their struggles, adding this external pressure upon their enemy. Palestinian terrorists, for example, disrupted international travel in order to isolate Israel and deprive it of tourism, hoping that foreign states would pressure it to make concessions to the Palestinians. Today, Osama bin Laden believes that by attacking the United States and other Western countries, he can force the West to exit the Middle East, thereby causing apostate governments to crumble. International terrorists seek support and shelter everywhere, and combating international terrorism is an immensely difficult cooperative endeavor. The United States understands this. It has put great pressure on other nations to combat terror and tried to coordinate counterterrorism efforts by treaties, but many states have been reluctant to ratify these treaties, and enforcement is difficult.

Others. Other international collective action problems include macroeconomic shocks in one country spreading rapidly to other countries, causing regional or even global economic downturns; uncontrolled migration, including refugee flows, which disrupts communities, spreads crime, and leads to political backlashes or even war. Ordinary transnational crime, as opposed to terrorism, remains an entrenched problem. Only international cooperation can address drug smuggling, money laundering, the sex trade, and piracy of intellectual property, such as films, books, computer programs, and video games—the list of problems that require greater international cooperation is long. Yet international cooperation in all these areas has been rudimentary.

To say that cooperation is limited or rudimentary is not to say that it does not exist. And, of course, it is difficult to quantify the amount of cooperative activity, so optimists can point to successes even while pessimists point to the failures. But one thing is clear: most states, and certainly all developed states, can solve the domestic versions of these collective action problems, or at least deal with them far more effectively than states as a group can handle global collective action problems. Most developed states can keep crime at an acceptable level, repress violent challenges to government authority, maintain renewable resources by regulating users, keep pollution at an acceptable level, and so forth. The question is, if states can do this domestically, why can't they do the same thing, as effectively, at the international level?

There is no clear answer to this question, but a few observations are familiar. States have governments, which have a monopoly on force and the loyalty of most citizens or subjects. Governments are complex institutions that obtain information about the interests, values, and concerns of citizens; enact rules that restrain people's behavior; monitor people's behavior for violations of the rules; and impose sanctions. Crucially, governments have institutional mechanisms, such as majority rule, that enable them to implement policy that benefits most people, and prevent individuals or small groups from blocking needed reform. As long as governments perform their functions adequately, people will for the most part obey the rules, participate in government (as voters, as employees), and in other ways maintain their loyalty. Governments are often unable to exercise authority over people who see themselves as a distinct group within a larger society, a group separated by ethnic, linguistic, cultural, historical, or geographic peculiarities. At the extreme, "failed states" are those where the government cannot exert control over a large portion of the population that nonetheless is unable, or unwilling, to separate itself into an independent state.

At the international level, no world government exists, and so no entity has the power to tax and regulate states, or the individuals who live in them, in order to ensure that collective goods are produced. The problem seems to be the extraordinary diversity of the world population as well as the extremely difficult problems of scale. When people are sufficiently diverse, there are few or no public goods that benefit most people or nearly everyone; instead, government policies can only have highly unequal effects. Arranging transfers so as to mollify the losers is also highly difficult, because it is so hard to determine the real effect of policies on highly diverse people. And when the scale of government is large enough, it becomes difficult for the government to monitor people, and for the people to monitor the government.

One can thus draw a crisp analytic distinction between intrastate cooperation, which is capable of solving major nation-level collective action problems, and interstate cooperation, which is itself subject to collective action problems and thus cannot solve them, except in a very rudimentary fashion. Within states, governments overcome collective action problems by applying force to individuals. Between states, governments must cooperate with each other—government to government—and, with occasional exceptions, the cooperation takes the form of agreements that are enforced with bribes or threats of retaliation. This type of "spontaneous cooperation," as it is sometimes called, is certainly possible, but it is very difficult, and it becomes more and more difficult as the number of participants increase, their time horizons shorten, and information asymmetries worsen. If spontaneous cooperation were really effective, there would be no reason for states to have governments in the first place, as citizens could simply cooperate directly with each other in order to produce national or subnational collective goods.

This analytic distinction does not perfectly describe the real world, of course. Political scientists distinguish between "international" or "intergovernmental" cooperation and "supranational" cooperation, in which individuals owe loyalty to multiple levels of government authority. The European Union is the supreme example of supranational cooperation today, but there are other examples as well.

It seems plausible that global collective action problems cannot be solved—or not very well. If it is true that national governments are needed to solve national collective action problems, then it seems that it would follow that a world government would be needed to solve global collective action problems. If a world government is not possible, then solving global collective action problems is also not possible. Or so one would think.

However, there is currently a project to escape this dilemma—a project that I will call "global legalism," one that can be summarized with the slogan, "law without government." To understand this project, we must first back up and see why the more traditional methods of escaping this dilemma—including that of creating a world government—no longer have any serious adherents.

POLITICAL, ECONOMIC, AND IDEOLOGICAL INTEGRATION

History does not so much repeat itself as play variations on a theme. The theme is the likely or inevitable solution of the world's problems—what I have called global collective action problems—through institutional or ideological development. The three main variations have been political integration, or the creation of a world government; economic integration, or the creation of a world market in which collective action problems melt away; and ideological integration, or the universal adoption of a set of beliefs that define collective action problems out of existence. I will also say a few words about a variant of political integration—hegemony.

Political Integration

One solution to global collective action problems would be to integrate the existing 190 or so states into a single world state. The world government would use its powers to tax and regulate in order to solve collective action problems just as national governments do today. The oceans would be like inland lakes, and the world government could maintain fisheries with the type of licensing systems that states use to maintain fisheries that fall within their jurisdictions. War and terrorism would be internal crime problems (or perhaps civil war), and the world government would use law enforcement and the criminal justice system to address them. Global warming and other pollution problems would similarly be treated as internal problems that could be solved in the same way that acid rain is dealt with in the United States.

A world government is an old dream, and it is no nearer to realization today than it was hundreds of years ago. Indeed, the trend over the past one hundred years has been in the opposite direction: states have been multiplying rather than merging. The problem with a world government is that the global population is far too heterogeneous to govern. People living in different parts of the world have different values, interests, loyalties, and ideas about governance. Heterogeneity frustrates world governance, and the plausibility of world government is receding with the passage of time.

A few people still imagine that a world government is possible. Some philosophers imagine that a federation of some sort might come into existence, but they fail to provide a plausible account of how this might happen. The political scientist Alexander Wendt does supply a mechanism: he argues that the struggle among individuals for recognition must inevitably lead to a world state in, he thinks, one or two hundred years. Wendt thinks that individuals have an inbred psychological desire to be recognized subjects, and this leads them to demand such recognition from others. As long as the battle for recognition leads to hierarchical relations like the master- slave relationship, the social system will be unstable because the hierarchical inferiors will, unless temporarily paralyzed by false consciousness, eventually demand a greater degree of recognition, as autonomous human beings. Within the state, the struggle leads to liberal democracy, which is the only system in which all individuals are recognized as equals. But the struggle for recognition persists at the international level, as weak states demand greater recognition from stronger states and citizens within weaker states demand greater recognition from the citizens of stronger states. Wendt insists that a stable world system cannot exist as long as people are divided among states, because even if the states take relatively peaceful attitudes toward each other, there is always the possibility that disputes will lead strong states to fall back on their greater power, resulting in the use of force. Such instability must eventually give way to a world state, where all individuals enjoy legal equality and liberal rights—the point at which they will finally stop struggling for recognition.

(Continues...)



Excerpted from The Perils of Global Legalism by Eric A. Posner Copyright © 2009 by The University of Chicago. Excerpted by permission of The University of Chicago Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Contents

Preface....................ix
Acknowledgments....................xvii
ONE The Utopian Impulse in International Relations....................3
TWO The Flaws of Global Legalism....................28
THREE Defending Global Legalism....................40
FOUR Globalization, Fragmentation, and the Law....................80
FIVE Global Legalism and Domestic Law....................100
SIX International Adjudication: Its Promise and Problems....................130
SEVEN The Fragmentation of International Justice....................150
EIGHT Human Rights and International Criminal Law....................175
NINE International Law in Domestic Courts....................207
CONCLUSION America versus Europe....................226
Notes....................229
Index....................263
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