1.

INTERNATIONAL LAW IN TIMES OF GLOBALIZATION,

ANTIGLOBALISM, CONTESTATION, NATIONALISM AND POPULISM

1. GLOBALIZATION: A FEW FACTS

Globalization = process of international integration based on the increasing exchange of ideas,

products and culture
+ increasing international mobility of persons
Linked with progress in automatisation, deregulation, telecommunication and transport

“Globalization may be thought of as a process (or set of processes) which embodies a transformation in
the spatial organization of social relations and transactions – assessed in terms of their extensity,
intensity, velocity and impact – generating transcontinental or interregional flows and networks of
activity, interaction, and the exercise of power” (David Held)
Extensity, intensity, velocity of interconnections
Globalization is not new
Interlinkages on economic, social and cultural level: towards deterritorialized relations

Economic interdependence. In the 20 century every country had opposed systems. We had market
economies in the west and centralised economies in the communist countries. Now almost every
country has free market economies. There is still debate because China is not considered a free
market economy, although it participate in the global economy and has signed the WTO. North
Corea is not integrated, so there is exceptions but the general rule is that the world has become
economic interdependent.
• Planning-based - free market economies
• FDI (Foreign Direct Investment) at record heights. Enormous intertwining of ownership of
companies. Companies from abroad are investing hugely in buying over domestic companies. The
economic landscape has become deeply transnational.
• Businesses becoming highly trans-nationalized (MNEs)
• Financial crises: 1990s (Asia, Pacific and South-America), 2008 – (US, Europe, …). Started in USA
and has a huge impact in Europe.
• Quick economic power shift to Asia. Especially China but not just it.
• Growing income differentials and social exclusion: the ‘leave no-one behind’ in Agenda 2030 /
SDGs. Basically the sustainable development goes agenda. Beautiful but it is in difficulties such as
Covid and inequality.
• Increasing ‘Global Value Chains’ (GVC) – and their decoupling post- Covid. Look at car production
for example. After Covid there is the idea of being aware that we can not depend of just one
country, so countries need some strategic autonomy.

Environmental interdependence
• Serious challenges for energy supply, drinking water, food, and raw materials. Introducing new
materials for energy producing.
• Climate change: weather volatility, extreme heat and drought, rising sea levels, decline of
ecosystems, extinction of species. Serious thing hitting us in the next generations.
• Accelerating pace of urbanization. The biggest city in the world is Beijing. China has multimillion
cities and they are continuing to grow. The countryside is being left behind. The rise of city-states.
• Pollution of rivers, seas and oceans; deforestation

Human interdependence.
“A crowded place”: 9.7 billion people in 2050, growing increasingly old (high state expenditure),
mostly living in cities.

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 Largest ever amount of young people (10-24): 1.8 billion (28% of world population)

Largest share of adolescents = Asia (> 235 million in India, 225 million in China) and sub-Saharan
Africa (70% < 30 yrs + > 100 mio jobless)

Migration flows intensify: conflicts, economic / climate refugees. Fortress Europe coming.

Failed States => Afghanistan, Somalia, ...; int’l terrorism, 9/11 and 13/11, the rise of IS, “areas of
limited statehood”. States are the agents that move international law, but what if states failed?

2. CONTESTATION: ANTIGLOBALISM, NATIONALISM AND POPULISM

Rise of contestation
In ‘international relations, contestation [...] involves the range of social practices which discursively
express disapproval of norms’ (A. Wiener, A Theory of Contestation, 2014, 1). Contestation is
people or countries contesting existing norms.

‘Contestation, by challenging international normative principles, may be assumed to constitute the

main stumbling block for cooperation’ (Connectivity 2018), especially when discourse ‘meets’
contestation practice of actors in international relations, such as:
▪ Non-participation in international organizations and treaties (e.g. ICC- International
Criminal Court)
▪ Withdrawal from organizations in the UN system and agreements (e.g. UNHRC, UNESCO,
Paris Climate Agreement)
▪ Non-support of international organizations (e.g. WTO) and rise of institutional alternatives
to the established multilateral order (e.g. AIIB Asian Infrastructure Investment Bank)

Rise of anti-globalism
- Contestation can include anti-globalist perspectives
• Anti-globalism can be seen as a form of contestation against globalization and forms of global
governance that accelerate and/or regulate global processes through multi- level cooperation
and policies

- Anti-globalism can be both expressed by non-governmental and governmental actors, for example:
• Anti-globalist discourse and practice can be seen in non-governmental movements against
policies and practice of international cooperation, such as the WTO, G7/8 and G20 or Free
Trade Agreements (see Seattle 1999, CETA)
• Anti-globalist thought and practice can also be identified amongst governmental actors in their
efforts to withdraw from the liberal economic world order based on the idea of overcoming
trade barriers (‘economic nationalism’)

(Re-) Rise of nationalism

- Economic nationalism: Trump’s ‘America First’ and Biden’s ‘Buy American’/americanization of
supply lines
- Political nationalism:
• Putin’s Russia - Annexation of Crimea/war against Ukraine
• Xi’s China - South-ChinaSea - HongKong,Taiwan
• Modi’s India
• Bolsonaro’s Brasil
• In Europe: Hungary, Poland

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 Rise of populism
“A thin-centered ideology that considers society to be ultimately separated into two homogenous
and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite,’ and which argues that politics
should be an expression of the volont g n rale (general will) of the people” (Mudde 2004)

“An illiberal democratic response against an undemocratic liberalism” (Mudde 2015)

“A political strategy through which a personalistic leader seeks or exercises government power
based on direct, unmediated, uninstitutionalized support from large numbers of mostly unorganized
followers” (Weyland 2011)

“Ideology or political movement that mobilizes the population (often, but not always, the lower
classes) against an institution or government, usually in the defense of the underdog or the
wronged. Whether of left, right, or middle political persuasion, it seeks to unite the uncorrupt and
the unsophisticated (the 'little man') against the corrupt dominant elites (usually the orthodox
politicians) and their camp followers (usually the rich and the intellectuals)” (Business Dictionary)

Bertelsmann Foundation: “it is mainly the fear of globalization that drives some to go away from the
political mainstream and turn to the populistparties” (2016)

Where do we see populism affecting globalization and international law?

• Brexit referendum UK 23 June 2016 – UKIP/Nigel Farage
• Presidential election US Nov 2016 – Trump administration
• Recent elections in Europe
- NL Geert Wilders (Freedom Party), Thierry Baudet (Forum for Democracy)
- FR Marine Le Pen
- IT Cinque Stelle, League (Matteo Salvini), Giorgia Meloni (“Italy and Italians first”)
- D Alternative f r Deutschland

3. A FEW CONSEQUENCES

Horizontal challenges for the Western model and the post-WW II world order: a world in flux
After Cold War: ‘end of history’ (Fukuyama)
Raise of authoritarian state-capitalistic powers / BRICS New assertiveness / aggression
authoritarian regimes
Is there ‘multipolarity’ after the bipolarity and unipolarity?

Proliferation of non-state actors and networks: vertical challenges for States

- Intergovernmental organizations (regional / global), NGOs, multinational enterprises, media,
religious organisations ...
- Rise of global governance in 1990s
• ‘governance’ instead of ‘government’ (formal, informal / public, private)
• ‘global’: vertical / horizontal dimensions + multilayeredness

Changes in patterns of international cooperation

Classic multilateralism: strong institutionalisation, formal equality of states, inclusiveness, legally
binding agreements: in crisis
Archetype: UN and UN system
Variation: WTO (“member driven”)
Crisis: reforms / negotiation methods

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 ‘New’ multilateralism: often outside UN system, selectivity, informality
Archetype: G20 to solve east asian financial crisis. Si not transparent but is there.

‘Minilateralism’

Resurrection of bilateralism
Eg. race to preferential trade agreements

Renewed unilateralism/disengagement. Like if a country doesn’t need another one.

4. REVISITING BASIC TENETS OF INTERNATIONAL LAW

(1) The central position of States.

States are still considered the primarily ‘full’ subjects of international law, this is in spite of the fact
that they don’t have a monopoly for international relations anymore. There is a variety of non-state
actors that has incrementally emerge, particularly in the course of the second half of the 20 century
after WWII international order.
Rise of multitude of non-State actors:
• Sub-State authorities. Like Belgium where its regions can make treaties by itself
because of its federal nature.
• Intergovernmental organizations, both at global and regional level (international
organizations). They all have some degree of international personality. We don’t call
them primary subject, we call them secondary or derived subjects. They get legal
personality because the State has created them.
• Multinational enterprises (MNEs). profit making sector. this multinational enterprises
are not fully recognise as entities under international law, which they are because that
also means they can not be given the responsibilities or be held accountable for some
problematic issues. Things are changing, there is a draft being discussed in Geneva…
• Transnational NGOs. it is the idealistic private sector.
Problems of failed / unrecognized States/areas of limited statehood (ALS). The state is the basic
natural unit of international law, but that unit is not always working well. there are quite a number
of states that don’t have a well functioning government. for example countries that do not have a
central government (Somalia, Afghanistan…). This leads to criminal groups taking over the power.
There is not much we can do.
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 Alternative concept. Hence the rise, since the mid-1990s, of ‘global governance’:
“the complex of formal and informal institutions, mechanisms, relationships, and processes between and
among states, markets, citizens and organizations (...) through which collective interests on the global
planet are articulated, rights and obligations are established, and differences are mediated” (Weiss/
Thakur).

But: the renaissance of the sovereign nation State?

Cf. President Trump’s UNGA address 25/9/2018: “America will always choose independence and
cooperation over global governance, control, and domination. I honor the right of every nation in
this room to pursue its own customs, beliefs, and traditions. The United States will not tell you how to
live or work or worship. We only ask that you honor our sovereignty in return. ... We will never
surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy. America is
governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of
patriotism. Around the world, responsible nations must defend against threats to sovereignty not
just from global governance, but also from other, new forms of coercion and domination.”. This is an
example of how populist politicians can affect international law. it is ironically because US has
created most of the global organisations, also internet…

(2) The theory of sovereignty and equality of States

= Basic axiom of international law: cf. Art. 2(1) UN Charter. States are equals to each other
formally speaking. No State is higher that the other. Montevideo treaty convention.

Traditional corollaries and their challenges:

1) Exclusive jurisdiction over territory and permanent population (cf. famous arbitration case -
Island of Palmas: “independence”). “sovereingnity means independence” there is no authority higher
than you (Brexit).
Quid:
• Extraterritorial jurisdiction in criminal and other matters, can be in civil matters. It is
basically the practice in which the State is taking legislation that has effects outside of its
territory. There are certain limitations:
• Immunities. Means that you can not enforce your own laws, even on your own territory.

2) Duty of non-intervention in internal and external affairs of other States. This is a beautiful
notion. During the cold war there was almost no agreement in anything between the US and the
Soviet Union, except this one. This notion has to do with the idea of the so called domestic
jurisdiction or reserved domain.
- The “reserved domain”: cf. Art. 2(7) UN Charter (“matters essentially within domestic
jurisdiction”). That is a from of recognition, a hardcore of sovereignty where the international
community is not allowed to medal. But, what is that hard-core of sovereignty today? Human
rights? If you go back to 1945 you could say yes, as there was no real body of international rights
law yet all of that has grown considerably 75 years later. But today, human rights violations are seen
as not falling within domestic jurisdiction, it is a matter of concern for the whole international
community. So, yes, this notion has evolved, now, states are trying to make a comeback (kind of
what we see with Brexit or trump) but hopefully this reserved domain still declines.
Quid:
• Human rights
• Humanitarian intervention/Responsibility to Protect(‘R2P’). I guess most countries wont
dare to use this concept of humanitarian intervention anymore because it has become so
criticised, but there was a time (1991 NATO intervention in Kosovo) which was justify on
the base of humanitarian intervention, saving human lives. This action was really
criticised for not receiving authorisation by the security council so it was kind of illegal.
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 It is a big debate. Classical international law considers it illegal and a breach in
sovereignty, it is the debate of the “2 concepts of sovereignty”. This 2 concepts of
sovereignty states that there is two concept of sovereignty that clash with each other,
there is the traditional interstate sovereignty, the west notion, duty of non-intervention
states as sovereign actors and nobody else can put themselves on top of another state.
But then there is another notion that has gradually been developed as part of the UN
and that is the sovereignty of the individual, the inalienable value and dignity of the
human person and all the human rights protection that has been developed as part of
international human rights law which finds its bases in the UN structure and the
universal declaration of human rights. Some countries see this as a neo-colonialism, as
an excuse for the west to intervine. A new concept was indeed conceived and that is
Responsibility to Protect or R2P, it has become a standard language in UN. [Source book,
para 138 Outcome document of September 2005]. The responsibility to protect starts
from the premise of sovereignty of every nation state but within this notion, the idea is
that it also entails responsibility. A state has to take care of its citizens. If it turns out that
a state is not willing to protect its citizens from international court crimes (genocide, war
crimes, etc) then the idea of R2P shifts from the state to the international community.
The security council then would have to act. The problem is that in fact the security
council was blocked during Kosovo. The international community is not always working
well. So HI was replaced by R2P. R2P is narrow but deep, narrow in the sense that it is
not a general principle that applies to all possible human rights (just limited to those
four court crimes: genocide, war crimes, crimes against humanity and ethnic cleansing),
it is deep in the sense that it really says states are sovereign and this means responsibility
over your population and if you are not willing to comply, then is an international
responsibility. If the security council is blocked we need to find alternatives, one of them
is the United for Peace Resolution. Is is from the 1950 of the General Assembly in which
it is stated that the General Assembly has the power to make recommendations (the
council could take binding measures under chapter 7 but the General Assembly doesn’t
have a chapter 7).
• Democracy/GoodGovernance/Rule of Law

But: non-intervention principle strongly emphasized by BRICS (Brasil, Rusia, India, China, South
Africa) countries. They have a different perspective on this.

3) Consensualism. The idea of international law is that a state being sovereign it can only be
considered bound by international rule of law when it has given consent to be bound. you are only
bound by those rules you has consent to be bound to. A treaty can not be imposed to a State.
- International legal obligations only upon consent
Quid: customary law, jus cogens? Here you are looking at the more holistic law
practice. The definition of ius cogens is not requiring unanimity of the whole
international community.
- Jurisdiction international courts and tribunals which are based upon sovereign consent.
Quid: chapter VII ad-hoc criminal tribunals. The security council has from time to
time stablished international tribunals based upon a resolution on this chapter. If
that happens, all states are bound to collaborate with that tribunal so in that sense,
they are obliged to recognise the jurisdiction of that tribunal. Later you will realise
that those ad hoc tribunals were part of the dynamics of the 1990s (Yugoslavia, etc.),
so I wonder if the spirit today will allow for these nowadays.
- Membership international organizations. you choose to be a member or not of an
international organisation.
Quid: de facto pressure to join and remain Member; IOs as ‘orchestrators’.
Sometimes you can exercise diplomatic pressure on states to stay or to become a
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 member of an international organisation. Is that decisive? No. Small states will
always be more keen to join international organisations because they would feel
more protected. De facto there may be pressure but you also see in practice that
international organisations also live a bit alive by themselves, sort of autonomous, a
phenomenon called orchestrators. They don’t decide anything for states but they
sometimes convine meetings where they propose dynamics and so on. See OECD
(Organisation for Economic Co-operation and Development)

4) Equality of States. It is part of customary law. Art. 2 para 1 UNCharter.

Factual and legal inequalities. It is hard to say that US is equal to a small country in Africa. More
generally, in areas such as environmental law you have a principle which is:
“Common but differentiated responsibility” (CBDR), think of climate change, is not that every state
has contributed the same way to climate change and the idea is that industrialised countries, given
their historic contribution to climate change have more obligations. But most of these industrialised
countries don’t accept this

5. THE ROLE OF THE EU IN INTERNATIONAL LAW AND GLOBAL GOVERNANCE

European Council 14 December 2007: EU Declaration on Globalisation

“We aim at shaping globalisation in the interests of all our citizens, based on our common values and
principles. For this even the enlarged Union cannot act alone. We must engage our international
partners in enhanced strategic cooperation and work together within stronger multilateral
organisations. The Lisbon Treaty, in setting a reformed and lasting institutional framework improves
our capacity to fulfil our responsibilities, ... It will bring increased consistency to our external
action.”

Declaration of the European Union and its Member States on upholding and promoting respect
for international law, including the principles of the Charter of the United Nations, 22 June 2022

European Commission Reflection paper on “Harnessing Globalisation” (10 May 2017)

On the external front: “focus on the need to shape a truly sustainable global order, based on
shared rules and a common agenda. The EU has always stood for a strong and effective 'multilateral'
global rulebook and should continue to develop it in a way that addresses new challenges and
ensures effective enforcement [...]”.
On the domestic front, The Commission suggests “tools to protect and empower citizens through
robust social policies and providing the necessary education and training support throughout their
lives. Meanwhile, use of EU structural funds to assist vulnerable regions and the EU Globalisation
Adjustment Fund to help displaced workers find another job can help mitigate negative impacts.”

EU external representation before Lisbon

Treaty of Rome (1957)
Establishment EEC with common trade policy
European Political Cooperation(1970)
Treaty of Maastricht (1992)
establishment EU pillar structure
Treaty of Amsterdam (1997)
High Representative CFSP (Solana)

EU external representation since Lisbon (1/12/2009)

1) Abolition EC-EU dualism and pillars
One EU with international legal personality; almost all external policy domains ‘integrated’

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 Common Foreign and Security Policy (CFSP) remains subject to ‘specific rules and
procedures’
2) Common principles and goals EU external action (infra)
EU needs to implement throughout external policies and external aspects of other policy
areas
3) Overarching institutional stuctures of external action
Permanent actors external representation (before: rotating presidency): President European
Council / High Representative for Foreign Affairs and Security Policy assisted by European
External Action Service (EEAS) / Union Delegations

EU is a really special type of international organisation, we call it a Supranational international

organisation with unique powers. But also the EU treaties lay down a number of quite elaborated
values, objectives and principles for the role of the EU in the world.

Values, principles and goals (Art. 21 TEU)

“The Union's action on the international scene shall be guided by the principles which have inspired
its own creation, development and enlargement, and which it seeks to advance in the wider world:
democracy, the rule of law, the universality and indivisibility of human rights and fundamental
freedoms, ..., the principles of equality and solidarity, and respect for the principles of the United
Nations Charter and international law.”
“consolidate and support democracy, the rule of law, human rights and the principles of
international law; preserve peace, prevent conflicts and strengthen international security...; foster
the sustainable economic, social and environmental development of developing countries, with the
primary aim of eradicating poverty; encourage the integration of all countries into the world
economy, ...; assist populations, countries and regions confronting natural or man-made disasters
…”

How? Choice for international cooperation, multilateralism and international law

“The Union shall seek to develop relations and build partnerships with third countries, and
international, regional or global organisations .... It shall promote multilateral solutions to common
problems, in particular in the framework of the United Nations” (Art. 21 TEU)
“The Union shall ... pursue common policies and actions, and shall work for a high degree of
cooperation in all fields of international relations...” (Art. 21 TEU)
“promote an international system based on stronger multilateral cooperation and good global
governance” (Art. 21 TEU)
“contribute... to the strict observance and the development of international law, including respect
for the principles of the United Nations Charter” (Art. 3(5) TEU). Hence, the EU wants to engage
not only the existing international law but also in the development of new rules.

Problems
Which space for “interests”? All countries in the world are pursuing their interests, which is
something different from values and that is something that the EU is less outspoken.
Is the EU ready for a world where “war is back in Europe”? EU were build in sunny times. But war is
back, are we ready to cope with that? Migration field…
Policy implementation unsure; “expectations – delivery gap”; inconsistencies
Eg. How realise human rights in trade policy?
Selectivity / hypocrisy
Eg. Arab Spring
Eg. Rights of migrants; socio-economic human rights
Eg. Refugee crisis: EU-Turkey Statement
Eg. race for preferential trade agreements-WTO
Member States willingly leave certain action to Union, whose hands are tied
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 Eg. EU-human rights dialogues – national economic diplomacy

6. CONCLUDING REMARKS

Globalization, global governance and interdependence are contested by anti-globalism, nationalism

and populism.

International law recognizes the sovereignty and non- intervention of States, but has also allowed
for the making and protection of international norms through hard and soft law: between co-
existence, cooperation and integration in times of interdependence

Variations of support and contestation of the current international order

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