No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 09 June 2015
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.
1. See Fukuyama, Francis, The End of History and the Last Man (New York: Free Press, 1992)Google Scholar, Strange, Susan, The Retreat of the State: The Diffusion of Power in the World Economy (Cambridge: Cambridge University Press, 1996)CrossRefGoogle Scholar, and Huntington, Samuel P., The Clash of Civilizations and the Remaking of World Order (New York: Simon and Schuster, 1996).Google Scholar
2. This dialectical relationship does not describe a simple either/or opposition. These concepts exist only as “ideal types” that are manifest in diverse and nuanced ways. For a more thorough discussion of this analytical framework, see M’Gonigle, R. Michael, “A Dialectic of Centre and Territory: The Political Economy of Ecological Flows and Spatial Relations”Google Scholar in Gale, Fred & M’Gonigle, R. Michael, eds., Nature, Production, Power (Cheltenham, UK: Edward Elgar, 2000).Google Scholar
3. For a good discussion of the need to move outside state-bounded thinking, see Walker, R.B.J., Inside/Outside: International Relations as Political Theory (Cambridge: Cambridge University Press, 1993).Google Scholar
4. As the renowned British spy novelist, John Le Carre, described the political climate one month after the September 11 attacks:
Drag up Kyoto these days, you risk the charge of being “anti-American.” It’s as if we have entered a new Orwellian world where our personal reliability as comrades in the struggle is measured by the degree to which we invoke the past to explain the present. Suggesting there is a historical context for the recent atrocities is, by implication, to make excuses for them: Anyone who is with us doesn’t do that; anyone who does, is against us.
“We Have Already Lost” The Globe and M’ail (13 October 2001) A19.
5. Anne-Marie Slaughter, “International Law and International Relations Theory: A Dual Agenda” (1993) 87 A.J.I.L., 205; Anne-Marie Slaughter, “International Law in a World of Liberal States” (1995) 6 Eur. J. Int’l L. 503; Anne-Marie Slaughter, Andrew S. Tulumello & Stepan Wood, “International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship” (1998) 92 A.J.I.L. 367.
6. Ibid, at 369.
7. The 1998 Slaughter et al, IR/IL research agenda proposes inquiry into three major substantive subfields: international governance theory, social construction through shared norms, and general liberal agency theory. Further, they suggest six primary research areas: regime design, process design, discourse on the basis of shared norms, transformation of constitutive structures of international affairs, government networks, and embedded institutionalism.
8. Commission on Global Governance, “Chapter One: A new world” in Our Global Neighborhood. (New York: Oxford University Press, 1995) Online: www.cgg.ch/chap1.htm (date accessed 27 May 2002).
9. Slaughter et at., IR-IL, supra note 5 at 371.
10. John G. Ruggie, “International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order” (1982) 36 Int’l Organization 379 at 382–83.
11. See David Fidler, “A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization” (2000) 35 Texas Int’l L.J. 387 at 388. As Robert Cox also writes:
The new popularity of the term ‘global governance’ suggests control and orientation in the absence of formally legitimated coercive power. There is something that could be called a nascent global historic bloc consisting of the most powerful corporate economic forces, their allies in government, and the variety of networks that evolve policy guidelines and propagate the ideology of globalization. States now by and large play the role of agencies of the global economy, with the task of adjusting national economic policies and practices to the perceived exigencies of global economic liberalism.
“Civil Society at the Turn of the Millennium: Prospects for an Alternative World Order” (1999) 25 Rev. Int’l Studies 3 at 12.
12. By “constitutional” I mean a first-order set of rules with which other orders of rule-making (local, national, other international) must be compatible. Probably, the first scholar to note the constitutional character of the globalization process was Stephen Gill in “Globalisation, Market Civilisation, and Disciplinary Neoliberalism” (1995) 24 Millennium: J. Int’l Studies 399 at 412. This constitutionalism is discussed in more detail below.
13. Such as Fidler, supra note 11.
14. For some interesting discussion on this, see, for example, Ronnie D. Lipschutz, “Because People Matter: Studying Global Political Economy” (2001) 2 Int’l Stud. Perspectives 321. Lipschutz discusses three of this past decade’s “meta-narratives” offering a more nuanced, contextual, and contingent approach to analyzing global political economy—placing people at the centre of his framework using historical materialism, feminist theory and agency-structure analysis. See also Held, David et al, Global Transformations: Politics, Economics, and Culture (Stanford, CA: Stanford University Press, 1999)Google Scholar where he attempts to specify the principles and the institutional arrangements for making accountable those sites and forms of power that operate outside democratic control in a form of “cosmopolitanism.” Falk, Richard argues, in Predatory Globalization: A Critique, (Cambridge: Polity Press, 1999)Google Scholar that states must be reoriented to protect citizens from the global economy, where transnational social movements would become “the soul of the state.”
15. For example, for the period between 1975–1997, 50 countries report a negative rate of change in per capita income; for the period between 1960–1990 the per capital income gap between the richest fifth and the poorest fifth grew from 30 to 1 to 60 to 1, and from 1990–1995, it grew to 74 to I, see UNDP, Human Development Report 1999 (New York: Oxford University Press, 1999). At the same time, fortunes of the 200 richest people exceed the total revenues of 41 percent of the global population, and the world’s biggest 10 companies have a greater annual turnover than the 100 smallest countries. See British Department for International Development (DFID), Developments (1998) issue 2, Second Quarter.
16. Clement, Wallace & Williams, Glen, “Introduction” in Clement, & Williams, , eds., The New Canadian Political Economy (Montreal & Kingston: McGill-Queens University Press, 1989)Google Scholar at 4. As the definition suggests, Adam Smith is generally considered to be the founder of this scientific discipline.
17. For a more detailed discussion on the meaning and implications of this classical/neoclassical split, see Michael M’Gonigle, “Ecological Economics and Political Ecology: Towards a Necessary Synthesis” (1999) 28 Ecological Econ. 11.
18. The Great Frontier (Austin, TX: University of Texas Press, 1980) at 14. [Original publication in 1952.]
19. See, for example, the writings of the early exponent of core/periphery analysis, Harold innis, and more recently Immanuel Wallerstein, Andre Gunther Frank, and others.
20. See Marc Williams, “International Political Economy and Global Environmental Change,” and Julian Saurin, “International Relations, Social Ecology and the Globalisation of Environmental Change” in Vogler, J. & Imber, M.F., eds., The Environment and International Relations (New York: Routledge, 1996)Google Scholar. For a particular approach from a population ecology perspective, see Dennis Pirages, “Ecological Theory and International Relations” (1997) 5 Ind. J. Global Legal Stud. 53.
21. “The State and Environmental Challenges: A Critical Exploration of Alternatives to the State-System” (1995) 4 Envir. Pol. 44 at 45.
22. Again, regime theory is a long-established tradition dating back at least to the landmark work of Nye, Joseph and Keohane, Robert, Power and Interdependence: World Politics in Transition (Boston: Little Brown and Company, 1977)Google Scholar. For an overview, see Rittberger, Volker, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993)Google Scholar. For a recent exposition of regime theory from a critical perspective similar to that developed in this paper, see Fred Gale, “Cave ‘Cave! Hic Dragones’: a Neo-Gramscian Deconstruction and Reconstruction of International Regime Theory” (1998) 5 Rev. Int’l Pol. Econ. 252. For an application of regime theory to international forests policy surrounding the International Tropical Timber Organization, see David Humphreys, “Regime Theory and Non-Governmental Organisations: The Case of Forest Conservation” (1996) 34 J. Commonwealth & Comp. Pol. 90. For an application of regime theory to freshwater resources see Jutta Brunnee & Stephen J. Toope, “Environmental Security and Freshwater Resources: Ecosystem Regime Building” (1997) 91 A.J.I.J. 26.
23. See Neeson, Janet, Commoners: Common Right, Enclosure and Social Change in England, 1700–1820 (Cambridge: Cambridge University Press, 1993).CrossRefGoogle Scholar
24. For a more detailed discussion of the “classical” state-centred approach to international legal structures, see Gregory F. Maggio “Recognizing the Vital Role of Local Communities in International Legal Instruments for Conserving Biodiversity” (1997/98) 16 UCLA J. Env. L. & Pol’y 179 at 184. He argues that the “classical” state-centred approach, based on ideas “regarding the ‘sovereign equality of states,’ a duty of non-intervention on the part of states in the internal affairs of other states, and state consent to international obligations,” awards legitimacy solely to states as the “subjects” of international law, side-lining all other socio-political groupings (the “objects”). By doing this, classical statist approach “effectively excludes the direct and official participation of other types of actors who have expertise and concerns that can help make the international system more broad-based, democratic, fair, and responsive to concerns arising outside of the official purview of nation-states and national governments.”
25. See, for example, Bull, Hedley, The Anarchical Society: A Study of Order in World Politics (New York: Columbia University Press, 1977).CrossRefGoogle Scholar
26. Supra note 3 at 166.
27. Alexander Murphy, “The Sovereign State System as Political-Territorial Ideal: Historical and Contemporary Considerations” in Biersteker, Thomas J. & Weber, Cynthia, eds., State Sovereignty as Social Construct (Cambridge: Cambridge University Press, 1996)CrossRefGoogle Scholar 81 at 91.
28. “Territoriality and Beyond: Problematizing Modernity in International Relations” (1993) 47 Int’l Organization 139 at 150.
29. A significant level of non-reciprocal benefits attends today’s trade regimes. Given the negotiated character of these regimes, the benefits of free trade can be mutual only where those participating have achieved comparable levels of development and bargaining power, something that clearly does not exist between North and South, or between city and countryside. Other costs also attend long distance trade generally in terms of energy and resource impacts, and these are externalized onto the planet as a whole. Thus can a critical ecological distinction be made between the benefits from complementary trade in different items (apples for bananas) as compared with the more limited benefits from competitive trade in similar items (automobiles from Europe vs. the United States vs. Japan). The importance of this distinction increases with the proportion of economic welfare that is met through such trade, a concern that problematizes the very notion of increasing wealth through global free trade. In contrast, advocates of “community economic development” note that wealth comes not only from trade but from the “multiplier effect” that results from the re-circulation of money at the local level. This latter activity can occur only where the diversity of the local economy’s processes of production and exchange is protected. Here we see the conflict between territorialist and centralist economies. In this light, one might better pursue balanced, and fair, rather than “free” trade.
30. For example, the International Monetary Fund’s Structural Adjustment Programs (SAPs) are characterized in exactly this way, as a form of state “capitulation” to externally-imposed standards that require compliance with international neo-liberal rules of behaviour (see Fidler, supra note 11 at 406–08).
31. See Gill, supra note 12.
32. UNCTAD Press Release, “UNCTAD and WTO: A Common Goal in a Global Economy” (8 October 1996), online: UNCTAD http://www.unctad.org/en/special/tb43pr05.htm (date accessed: 12 February 1998).
33. Clarkson, Stephen, The Contested State: Canada under Globalization (Toronto, ON: University of Toronto Press, 2002)Google Scholar; Clarkson, Stephen, “The Multicentred State: Canadian Government under Globalizing Pressures” in Smith, Gordon & Wolfish, Daniel, eds., Who is Afraid of the State: Canada in a World of Multiple Centres of Power (Toronto, ON: University of Toronto Press, 2001).Google Scholar
34. See Deborah Z. Cass, “The ‘Constitutionalization’ of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade” (2001) 12 Eur. J. Int’l L. 39 at 41. Cass presents an explanation of the progress of international trade case law as akin to (but different from) the development of constitutional structures through domestic judicial interpretation.
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.