Corps de l’article

A prominent feature of liberal, and also most republican, theories of global justice is that they begin from consent.[1] The nature, scope, and content of that consent is not uniform, however, but rather multifaceted in most theories of global justice. Two particular usages are prominent in the literature: consent to the domestic order and consent to the global order. On those accounts, the domestic order is distinguishable from the international order by the fact that individuals, rather than states, grant their consent to the domestic order, whereas states, through international treaty making and others legal procedures, grant their consent to the international order. Liberal theories of global justice—and here we use the term broadly—are distinguishable in particular by the fact that they begin from the consent of state actors to the global order. In this paper we argue that the concept of consent to the global order masks a considerable amount of ambiguity in how the concept is deployed, as the features that define state consent as a matter of law depart substantially from those assumed by theorists of the liberal order, who subscribe, in most cases, to the realist conception of state action.[2] Moreover, the consequences of that consent, most notably the directly coercive power of the state versus the (purportedly) non-coercive power of the international order, are under-theorized.

With respect to the importance of consent for the legitimation of normative orders, Michael Blake, for instance, argues that “it is the autonomy-restricting character of the state that demands special justification in terms of a conception of social equality.”[3] On Blake’s telling, because states use coercive mechanisms to enforce their laws, most notably by means of criminal sanctions, taxation, and systems of property rights, in ways that other (generally international) institutions do not, they are unique loci for justice. For Thomas Nagel, otherwise hardly a friend of the cosmopolitan theorists, it is “our joint authorship of coercively backed laws that generates a concern for equality.”[4] Absent joint authorship, which obtains only inside a democratic polity, the concerns of justice do not apply.

The idea that consent, coercion, and joint authorship are properties that obtain at the level of states, and neither above or below it, is essential to the realist conception of the state. Even many cosmopolitan theorists, whom one might expect to have been sensitive to this trap, have made this same mistake.[5] Why most liberal theorists remain partisans of realist conceptions of international law is a question best left for intellectual historians. Clearly, a liberal view of the relations of states is imbedded in the curriculum of most graduate programs in political science and international law, even if by now the inadequacy of that account has become clear.[6] When studying the legitimacy of the global legal order, the first thing students of international law learn is that all international law is formed by the consent of states.[7] Where this view has been challenged, philosophers have focused on issues related to the formation of customary international law and the emergence of peremptory norms, which may bind states against their consent.[8] However, the existence of jus cogens norms is not the only possible, and arguably not the most severe, problem with the liberal theory of global justice. Instead, the liberal theory of state consent assumes the existence of a unitary state, a simplification that pervades theories of global justice.

The assumption that states are monolithic entities clearly makes it easier to address issues of global justice within the liberal framework. The downside, we will argue in this paper, is that it ignores serious challenges to the working assumptions surrounding consent in the global system. We will proceed in this paper by developing the classical models of consent to the global system, then suggesting ways in which it has been undermined by the recent developments of treaty law. We close by suggesting that the model of global justice in the theories of Blake, Risse, Nagel, and others is severely outdated.

Consent in International Law

Classic theories of international law view jus gentium as ultimately derivable from natural law.[9] However, by at least the early 20th century, the dominant view had changed. The Permanent Court of International Justice, in the Lotus Case, held that international law emanates from state consent alone.[10] Insofar as international law is assumed to rise from state consent, it is assumed that only the acts of duly appointed members of the executive can bind a state. There are two different components of international law that are ultimately derivable from state consent: treaty law and customary international law.[11]

The Vienna Convention on the Law of Treaties (VCLT) provides the clearest formulation of the definition of treaties and the consensualist doctrine of treaty law.[12] For the purposes of the VCLT, although the definition is generally considered to apply more generally, save for a few specific exceptions that are not of import here, a “‘Treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or two or more related instruments and whatever its particular designation.”[13] The consent theory of international law impregnates the modern conceptualization of treaty law. Under treaty law, states are bound by international agreements only when they consent to be so bound. In particular, they only consent when a duly appointed or authorized member of the executive provides a state’s consent.[14] That consent is static; what a treaty initially meant, absent certain very specific conditions derivable from the nature of a state’s consent, is what it continues to mean. Finally, they consent on behalf of their citizens, such that only the state, as a normatively unique institution, can impose coercive measures on its citizens.

On the other hand, unlike treaty law, customary international law does not require explicit state consent. Instead, once there is widespread state practice coupled with opinio juris, states become automatically obliged to conform their respective positions to these new rules.[15] Customary international law is composed of two elements: state practice and opinio juris sive necessitatis.[16] The former includes those actions that states actually undertake, while the latter includes those statements, made by states, that they are actually required by law to undertake those actions. However, there increasingly is evidence that many of the recent sources of customary international law do not directly emanate from state consent but rather from the work of super-state actors in a world of increasingly disaggregated state action.[17] In other words, a state’s executive and legislative branches are no longer the final say with respect to evidence of opinio juris. Instead, international institutions and international courts have interpreted rules of jurisdiction to grant national courts increasingly greater rights over non-nationals. The change in jurisdiction means that states no longer need consent for sanctions to be imposed on their citizens, nor are citizens co-authors, in Nagel’s sense, of the law which govern them.

The Evolution of Treaty Design

As a general proposition, a state’s signature to a treaty does not automatically bind that state.[18] In general, under the VCLT, while there are some cases where a simple signature is enough to bind a state, treaties require ratification by the country’s parliament, along with the passing of the appropriate implementing legislation at the domestic level. Any introductory text on international law will likely divide treaties into contract treaties and law-making treaties. Although useful from a pedagogical point of view, the definition is largely one of ideal types, as it is difficult, if not impossible, in practice to draw a hard and fast division between the two. Contract treaties (traités-contrats) create an arrangement between states to undertake an act (for instance, to set in place a commercial arrangement). Contract treaties include a lesser type of treaties, dispositive treaties, whereby one state “creates in favor of another [state], or transfers to another, or recognizes another’s ownership of, real rights, rights in rem, for instance, in particular treaties of cession including exchange.”[19] Conversely, law-making treaties (traités-lois) serve to create new international rules for the law of nations (common examples include the international covenants and other human rights treaties).[20]

Law-making treaties, however, have become increasingly complicated, signaling an emerging problem for theorists of the legitimacy of international law.[21] At the same time, they have become increasingly vague as to what states are actually required to do. Prominent examples of this change can be found in international environmental law. So-called framework conventions do not produce specific binding rules, leaving the promulgation of specific standards to subsequent negotiations between the parties. For instance, the United Nations Framework Convention on Climate Change provides general principles for the reduction of greenhouse gas emissions without specifying manners in which these will be accomplished, leaving the details to subsequent meetings of the Conference of Parties.[22] Similarly, the Montreal Protocol on Substances that Deplete the Ozone Layer grants the Conference of Parties the right to set limits on, and exceptions to, the use of methyl bromides, after state ratification of the Protocol.[23]

Underlying this change in treaties is the emergence of global administrative law. Global administrative law comprises those principles and practices that underlie the international institutions created by law-making treaties.[24] It emerges from the various transnational systems of regulation that have been set up under treaty law and comprises the mechanisms put in place to bind states through dispute resolution and the issuing of binding regulations. As Benedict Kingsbury and others have argued, as part of a detailed study of the phenomenon:

“[u]nderlying the emergence of global administrative law is the vast increase in the reach and forms of transgovernmental regulation and administration designed to address the consequences of globalized interdependence in such fields as security, the conditions on development and financial assistance to developing countries, environmental protection, banking and financial regulation, law enforcement, telecommunications, trade in products and services, intellectual property, labor standards, and cross-border movements of populations, including refugees. ”[25]

Faced with increased interdependence, states have chosen to enact interstate agreements designed to put in place to address common problems amongst nations, most notably in trade law—where effective trade regimes require coordination between states—and in international security law.

Administrative law differs from treaty law (and for that matter other forms of international law) as it operates “below the level of highly publicized diplomatic conferences and treaty-making.”[26] In toto, administrative law regulates vast spaces of the international economy. It includes not only legislation (through the drafting of regulations) and adjudication (through dispute resolution mechanisms), mechanisms where were common not only to older treaties that created international organizations such as the League of Nations and the United Nations, but also the development of “standards and rules of general applicability adopted by subsidiary bodies.”[27]

In the following sections, we will discuss ways in which the emergence of global administrative law poses challenges to consensualist model of international law. We will focus on those bodies of administrative law that have achieved the most thorough treatment by international legal scholars: market regulation, and anti-terrorism, and security law.[28] These fields represent areas of international law that challenge state consent and put lie to the claim that only states are involved in making decisions that directly regulate and control the choices of individuals.

Anti-Terrorism and Security Law

Critiques of decision making in international organizations are often framed in terms of the so-called democratic deficit inside those organizations.[29] The democratic deficit can exist in many ways—for example, through the creation of treaty law, which, although initially (arguably) dependent on state consent, become undemocratic, or is substantially modified through the growth of administrative law. In the following sections, we consider not the broad case of the existence of the so-called democratic deficit, but specific ways in which law making occurs outside the consensualist model of international law. Beginning in this section with a discussion of anti-terrorist law, we will discuss the diminution of state consent in emerging fields of public and private international law.

Article 24 of the Charter of the United Nations (hereinafter Charter) permits the United Nations Security Council (UNSC) authority to protect the peace, and grants it sole responsibility to determine what constitutes such a threat.[30] Although the events of September 11, 2001 increased awareness of both the risks of global terrorism and the efforts of governments to control it, efforts to regulate terrorism under Article 24 predate the current century.[31] Nevertheless, since the attacks on New York and Washington in September, 2011, the UNSC has been increasingly active in attempting to lead the war against terror and in its efforts to control transnational violence. In particular, the UNSC has adopted a series of resolutions designed to control the activities that make terrorism possible: the financial systems that support terrorism and the spread of weapons of mass destruction. The actions of the UNSC have led many critics to ask whether an imperial UNSC has become an instrument for the imposition of a hegemonic international law.[32] In contradistinction, our question is not whether the UNSC is acting as an imperialist agent, but how its actions have transformed the nature of states’ underlying consent to the United Nations.

Immediately following the events of September 11, 2001, the UNSC passed Resolution 1373, which in many respects marked a radical departure from its previous acts.[33] First, unlike most of the UNSC’s actions, this resolution was not made with respect to a well-defined situation or to a well-defined threat to international peace, at least not according to traditional understandings of threat or peace.. Instead, Resolution 1373 departed from previous UNSC practice insofar as it contained “far-reaching, general obligations for states to prevent and combat terrorism” and effectively turned the UNSC into a legislative body.[34] The first operative clause of the resolution required all states to adopt laws preventing the financing of terrorism, to criminalize the collection of funds designed to support terrorism (either on their territory or by their nationals), to prosecute individuals involved in the collection of such monies, and to freeze all funds on their territory that might be used to support terrorist activities.[35] Further, the resolution also requires states to adopt information-sharing mechanisms to prevent future terrorist activities, and to deny weapons and safe haven to members of terrorist groups. Finally, it enables, under clause 6, the Rule 28 Committee to monitor the implementation by states of the rules contained in the resolution.[36] Resolution 1373, in effect, made mandatory what was until then a treaty structure, the International Convention for the Suppression of the Financing of Terrorism, to which states were free to become (or not become) state parties. It also created a framework for the promulgation of future administrative law through the work of the Rule 28 Committee.

Naturally, law does not operate in a vacuum. As Hans Kelsen remarked as early as 1950, the UNSC can make new law by characterizing as illegal the acts of other states.[37] However, the characterization of the illegality of acts is markedly different from the imposition of certain requirements on states that no member state of the United Nations would be entitled to impose on its own.[38]

However, Resolution 1373 is not wholly without precedent. In many respects, it represents the end stage of the development of law making by the UNSC. Following the end of the First Gulf War, the UNSC, under Resolution 687, engaged in law making of its own, albeit on a more limited scale. It required Iraq to respect the disputed border with Kuwait.[39] Subsequently, under both that resolution and Resolution 692, the UNSC held that Iraq, contrary to normal procedures for determining liability and restitution, which would require negotiations or at least adjudication, was responsible for the losses incurred by Kuwait during the Gulf War and that it was obligated to pay, from its petroleum exports, restitution.[40]

Next, following the bombing, over Lockerbie, Scotland, of Pan Am flight 103 and the bombing, over Niger, of UTA flight 772—both in 1988—the UNSC purported to override, through Resolution 748, individual states’ obligations under the Montreal Convention.[41] In particular, that resolution required Libya to extradite those intelligence agents suspected in the two bombings, rather than permitting their trial in domestic courts.[42] In both these situations, the UNSC would appear to have gone beyond its powers under the Charter, which limited the powers of the Security Council “in conformity with the principles of justice and international law.”[43] By adjudicating borders and apportioning liability, with respect to the First Gulf War, and by overriding treaty rights, with respect to Libya’s refusal to extradite suspects, it would appear to have engaged in law making and adjudication of a sort not intended by either Libya or Iraq when they became members of the United Nations.

Finally, with the rise of the Taliban Regime, the UNSC created an early version of the Article 28 Committee.[44] Resolution 1267, passed in 1999, contained many similar, although substantially narrower, restrictions.[45] Resolution 1267, at least initially, addressed support offered by the Taliban Regime in Afghanistan to suspected terrorists. Under that resolution, all states were required to freeze the assets of individuals associated with the Taliban and Al Qaeda, to prevent the entry into or transit through their territories by designated individuals, and to prevent the sale of arms and similar material to the Taliban and Al Qaeda.

Resolutions 1267 and 1373 are unique as they did not name specific targets of the sanctions regime. In fact, neither resolution named the individuals who were to be prevented from travelling, or whose assets would be frozen. Instead, much like municipal laws that create space for the promulgation of regulation, both resolutions left the creation of that list to the original Rule 28 Committee of the UNSC, which was tasked with developing procedures to enforce the embargo against members of the Taliban.[46] Soon, the resolution was “expanded into a complex smart sanction regime adopting measures against anyone anywhere associated with the Taliban, Osama bin Laden, or Al Qaeda.”[47]

Several resolutions have since followed Resolution 1373,[48] all of which have determined the fate of state consent. Resolution 1540, passed in 2004, sought to block non-state actors from acquiring WMDs.[49] That resolution required, in part, states to adopt specific legislative mechanisms, including criminal and civil penalties to control the export and transshipment of certain goods that could lead to the production of WMDs and on funds which could be used to aid proliferation.[50] Moreover, Resolution 1540 regulates activities such as export and transshipment that would contribute to proliferation. It also required states to establish end-user controls and criminal or civil penalties for violations of such export control laws and regulations.

The question at this juncture thus becomes what these Resolutions mean for the consensual model of international law. In general, insofar as Resolution 1373 and 1540 portend an emerging UNSC practice involving active legislating by the five permanent members of the UNSC, it appears, as Jean Cohen has suggested, to mark the emergence of a global constitutional order, and a radical threat to the constitutional orders of those states that are not permanent members of the UNSC.[51] However, we see it in a slightly different light. The creation of the Article 28 Committee, first, challenges the consensualist model of international treaty and second, means that, for one of the first times, global governance institutions direct their commands at specific individuals, with only the slightest of mediation by states.

First, the recent actions of the Security Council appear to have changed the enforcement model under Chapter VII of the Charter of the United Nations to a legislative model, a fact not lost on member states during the debate over the adoption of Resolution 1540.[52] Actions under the Charter must be proportional to the aim sought (i.e. to maintain international peace and security) and, if those actions constitute the enactment of legislation, to be of a temporary and emergency nature.[53] Now, instead of an interpretation of the UNSC’s powers that emphasizes its unique role in policing and enforcement, the move to legislative power not only enshrines a dual model of states under international law—where the permanent members enjoy an enhanced legislative power—but also entails an alteration of the original conditions of consent provided by states to the Charter.[54]

Generally, organs of the United Nations are permitted to delegate a right to make binding decisions.[55] However, generally, such a delegation must be express and within the original rights of the organ performing the delegation.[56] And it is unlikely that the member states of the United Nations intended to grant the Security Council such rights, derogable or not.

Second, as Benedict Kingsbury has noted, instead of previous acts of the UNSC, under the new security regime, now, “the U.N. Security Council and its committees, which adopt subsidiary legislation, take binding decisions related to particular countries (mostly in the form of sanctions), and even act directly on individuals through targeted sanctions and the associated listing of persons deemed to be responsible for threats to international peace.”[57] In this respect, state consent to coercive measures, and the state’s role in carrying them out, ceases to be central to an account of global law, undermining Blake’s thesis.

Market Regulation and Public Goods

If the emergence of anti-terrorist law undermines the consensualist account of international law, the regulation of shared resources and activities (such as the environment or the marketplace) brings with it a similar risk. As we have argued elsewhere, contemporary international law has developed in such a way so as to expand a state’s jurisdiction.[58] While several fields of international law lend themselves to the study of state jurisdiction, market regulation provides one of the clearest examples of how the acts of other states can bind citizens of third states, absent any consent by those third states themselves.

In a world of increased interdependence (be it economic, environmental, or social), the classical view of international law has created a situation that has made the consensualist model of international law virtually untenable. While states have traditionally had many different solutions available to them to solve collective action problems, global interconnectedness appears to have pushed the situation toward a breaking point. As result, several scholars, most notably Nico Krisch, have argued that the legal order has begun to undergo another substantial transformation.

The argument proceeds as follows. Classically, it has been thought that the effective and sustainable use of global public goods can only be achieved through the cooperation of states.[59] However, state cooperation has proven ineffective in tackling many of the most urgent public problems of our day (this is a question not only for legal scholars of terrorism, but also for scholars of regulatory law and environmental law, to name a few).[60] Thus, states have increasingly moved to a model of law that finds its legitimacy not in the consent of those individuals bound by a legal order (as Blake and others would have it), but through the recognition, by those affected, of the legitimacy of new laws and regulations insofar as they serve the popular good. This change in legitimation amounts to an attack on the consent theory of international law insofar as it has led to a “shift in the discourse about the legitimacy of global governance—a shift from input to output legitimacy. The urgency of solving global problems, expressed in the notion of global public goods and reflected in the shift to output legitimacy, has placed consent and sovereign equality under ever greater strain.”[61]

Terrorism, as we discussed above, poses one such problem. However, more mundane spheres of law, including antimonopoly law, which we will discuss here, have developed to grant extraterritorial jurisdiction to states. While the idea that states may regulate commercial acts beyond their territories may seem novel or perhaps even illegal, it is actually well-settled law, at least in the Anglo-Saxon world, that they may. First, in the 1945 Alcoa Decision, the US Federal Courts accepted the effects doctrine with respect to the regulation of market activities.[62] The effects doctrine, well known to students of criminal law, holds that an action on one state’s territory may fall under the jurisdiction of another state if the effects of the criminal act extend to that state’s territory.[63]

The Alcoa Decision dealt with the question of whether or not American anti-trust laws could be applied to companies outside American territory. In Alcoa, the US Federal Government filed a civil suit against an American aluminum manufacturer, Alcoa, whose Canadian subsidiary had entered into an arrangement with several European companies to limit the supply of aluminum to the United States. That arrangement was not, however, entered into on American soil. In its decision, the Court could have held that it had jurisdiction due to the fact that Alcoa was headquartered in the United States, and hence licensed in the United States. Instead, the Court held that while customary international law might, in a few cases, limit the scope of power a state may exercise beyond its borders,[64] “any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends.”[65] In subsequent cases, courts have continued to apply the doctrine. In Continent Ore Co. v. Union Carbide & Carbon Corp., the Supreme Court held: “[a] conspiracy to monopolize or restrain the domestic or foreign commerce of the United States is not outside the reach of the Sherman Act [i.e. Anti-Trust Law] just because part of the conduct complained of occurs in foreign countries.”[66] In other words, US Courts held that international law permits states to exercise jurisdiction over cases even where aliens have not intended to enter into acts on the territory of those states.

Although many states initially rejected Alcoa and its progeny, the extension of jurisdiction that the decisions signaled quickly became part of the international legal order.[67] In a series of rulings in the 1960s and after, the European Commission (EC) and European Courts would effectively adopt the jurisprudence of the US Federal Courts.[68] In The Dyestuffs Cases, the Court of Justice of the European Communities held that actions to infringe freedom of trade or to create monopoly pricing in the European Economic Community, even if entered into by companies headquartered in Switzerland and Britain (which were outside the reach of the court at the time), might be sanctioned by the Courts of the European Communities if those companies subsidiaries operated inside the European Economic Community.[69] The Court argued that Swiss and English companies and nationals could be held responsible for violating Article 85 of the Treaty of Rome.[70]

The principle was applied again in subsequent cases, such as in Re Wood Pulp Cartel, where the European Economic Commission filed suit against non-European Community producers of wood pulp. The EC alleged that non-EU wood pulp producers had engaged in various activities that sought to negatively affect trade in the EU common market.[71] Conversely, the defendants had argued that the suit against them should not stand, as they were wholly located outside the jurisdiction of the EC, and also as the application of European Economic Community competition rules in that very case would violate the basic tenants of public international law (in particular the principle of non-interference).[72] However, the European Court of Justice (ECJ) held that the EC had jurisdiction over firms located outside the EC if the firms in question implemented regimes (in particular, price fixing) that had effects within the EU, even if, presumably, none of the firms were headquartered in the EU, provided that their commercial activities, viz., selling directly through intermediaries or directly to consumers, affected the market in the EU.[73]

As such, it now seems to be well established under international law that states may exercise “liberal extraterritorial jurisdiction” not only under criminal law, but in many different realms of law.[74] Not every state, of course, can compel corporations in other states to act in certain ways. Only large states or large trading blocs (such as the European Union) can actually force corporations beyond their borders to act in certain ways. However, the international regulatory environment is increasingly taking on the appearance of a world order where certain states “provid[e] the global public good in question [e.g., anti-trust law to ensure fair competition] in a ‘hegemonic’ mode, very much in line with classical hegemonic stability theory.”[75] The effects of this expansion of anti-trust law therefore appears to be one more way in which state consent, and even individual consent through the state, to laws in force has been minimized by the extraterritorial application of laws, and allows individuals to be sanctioned by states other than their own.

Consequences for Theories of Global Justice

In our introduction to this text, we suggested that liberal models of global justice are unable to account for the emerging complexity of issues of consent and jurisdiction in international law. We singled out, in particular, the work of Blake and Nagel. Blake, as is well known, argued that it is by virtue of the ability of states—and only states—to exercise coercive power over individuals absent their consent that certain stringent principles of justice apply at the domestic level, but need not apply at the global level. Nagel argued that it is by virtue of the fact that laws that apply at the domestic level are products of citizens’ consent, that principles of justice apply at the domestic level and not at the global level (where, if consent is obtained, it is by virtue of state and not individual, consent). The persons so affected, suffice it to say, have never consented to these laws. However, as we have shown here, those suppositions are no longer true, if they ever were. International law now directly coerces individuals through the specific acts of the UNSC absent meaningful control or oversight by most states.[76] Similarly, individuals and corporations may now be brought before foreign tribunals if their actions indirectly affect economic activity in third states or with supranational institutions.

It has been argued that state consent might not be as static as we have supposed, and that states consent, on behalf of their citizens, by acquiescing to the acts of the other states or of the United Nations.[77] However, our argument does not hinge on state consent per se. Rather, we have argued that not only has the basis of consent to the acts of the UNSC under Chapter VII changed in ways that it is doubtful states ever intended or could even have predicted, individuals are now directly targeted by sanctions regimes or by laws of foreign countries. The former put a lie to the theory that individuals are not coerced by supranational institutions; the latter, that they are subject only to legal regimes to which they themselves have consented (either democratically, by immigration, by travelling, or through some other overt act). Similarly, the extension of extraterritorial economic jurisdiction signals that, in an increasingly economically interdependent world, any individual may be brought under a foreign state’s jurisdiction.

Thus, states’ monopoly on coercive acts appears therefore to have been severely weakened. The takeaway is that international law—often thought of as law beyond the state—now goes deeper than national law, reaching individuals and corporations.