Blog of the International Journal of Constitutional Law

Book Review: Phillip Paiement on “Globalisation and Governance: International Problems, European Solutions” (Robert Schütze ed.)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Phillip Paiement reviews Globalisation and Governance: International Problems, European Solutions (Robert Schütze ed., Cambridge 2018).]

–Phillip Paiement, Tilburg Law School

Which institutional architectures are best suited to govern the social and economic globalizations of the 21st Century? Have the 20th Century ambitions to realize universal internationalism given way to a need for the more pragmatic approach of regional supranationalism? The sixteen substantive contributions in this compilation tackle the ‘big questions’ of global governance, one might say. In his introduction, Schütze lays out the following collective thesis of the contributions:

“[W]hen contrasting internationalism with supranationalism, the ‘formal’ and ‘substantive’ tools offered by the latter to ‘govern’ collective transnational problems are distinctly firmer and sharper; and the contemporary solutions for global ‘governance’ problems therefore should lie–at least in the immediate future–beyond the nation state” (4).

In reality, the contributions, organized into the ‘normative foundations’ and ‘substantive challenges’ of, first, international and, then, European governance, offer a more comprehensively positive review of both universal internationalism and regional supranationalism (à la EU) than the thesis would suggest.

The first two contributions by Schütze and von Bernstorff investigate, respectively, the intellectual developments that led to Kant’s vision of a voluntary world federation of states and Kelsen’s ‘objective’ account of international law’s validity. O’Donoghue develops a historical taxonomy of the notion of tyranny from ancient Greek thought, through Machiavelli, to Arendt, in order to illustrate how, “[global] constitutionalism offers a basis to shine a spotlight on international law’s tyrannical tendencies” (99). In response to concerns about the tyrannical and limited potential of international law, Allott pleads for a return to ideal theory to salvage the projects of global governance from the criticism posed by the growing voices of populism.

While the first chapters offer conflicting depictions for the future of universal internationalism, the contributions on international law’s ‘substantive challenges’ offer loads of optimism. Weller’s evaluation concludes that the United Nations has achieved a very successful constitutionalisation of the use of force, and argues that the continued existence of armed conflict does not undermine the success of this constitutionalisation. Hoekman and Mavroidis comprehensively embrace the potential of the (rare) Plurilateral Agreements as an instrument for global trade integration which could surpass the more common Preferential Trade Agreements. Gehring argues that one of global environmental governance’s biggest challenges arises out of administrative fragmentation at the national level and points towards international developments around the concepts of ‘sustainable development’ and the ‘green economy’ as examples for how national governments could improve the integration of environmental decision-making across policy sectors. Bekou offers a fairly glowing review of the International Criminal Court (ICC) at fifteen years. After these contributions, one is prepared to embrace universal internationalism as (one of) the architectures of global governance for the 21st Century.

From a distance, these assessments of international law, first prepared in the summer of 2014, seem oddly out of place five years later. As Koskenniemi points out in his concluding essay, the review of the use of force under international law depicts a world where the civil war in Syria, the annexation of Crimea, the humanitarian disaster in Libya, and the United States’ targeted drone strikes have not occurred (459). Likewise, the review of the ICC’s first fifteen years places more shame on Burundi’s exit than on the unwillingness of the United States to join in the first place: “If a State Party has concerns over its relationship with the Court, then leaving the ICC family is not the answer…” (210). In light of the US threat to sanction the ICC, should it investigate war crimes committed by US nationals in Afghanistan, and its refusal to issue entry visas into the US for ICC investigators, the structural problems of operating without Chinese, US, Indian and Indonesian membership warrants perhaps more serious scrutiny (205).

In turning to the contributions on European suprnationalism, de Witte discusses how the dual character of the EU as both a product of international law and an autonomous regional body poses challenges in the integration of the EU and the European Convention of Human Rights. Furthermore, he questions why the EU’s courts should “jealously deny to other international adjudication bodies any kind of interpretative activity relating to EU law” while simultaneously offering its own interpretations of international law (241). Möllers offers a multi-faceted and thorough critique of the state of constitutionalism of the EU’s legislative, executive, and judicial functions, a critique that is responds to many of the contemporary populist complaints. Garant critically reviews the practice of the subsidiarity principle in the EU to illustrate how it stacks the deck towards further integration when concerning the internal market and, in the field of fundamental rights, prioritizes effectiveness and efficiency assessments that, “may fail to do justice to the more wide-ranging ambitions of fundamental rights,” to put it modestly (299). Kochenov’s contribution offers a compelling argument for divorcing the EU citizenship framework from the internal market in order to overcome the apartheid européen and classist distinctions between “the poor, the uneducated, the criminal, the mothers of children with special needs” and “the ‘good’ EU citizen” directly engaged in cross-border economic life (311-2).

In terms of the EU’s ‘substantive challenges,’ Wessel argues that the initial reluctance towards integration in the area of foreign and security policy has gradually been overcome throughout the “Union’s coming of age as a polity” (340). In contrast, in the context of the Euro-Area crisis, Hinarejos depicts a de-integration process and the return of executive-led intergovernmentalism in the EU, with all the concerns that raises for the democratic and judicial oversight of policy making. In a broad review of EU environmental law, Krämer depicts an EU that has been tremendously successful in regional environmental governance but has stopped short of transforming that success into an active external role in global environmental governance. Through these contributions, a more nuanced depiction of regional supranationalism takes shape, in which the EU has clear problems and limits – concerning democratic oversight, accountability to national electorates, and a trend towards effectiveness and technocratic decision-making – but has also functioned successfully, according to its own criteria, in integrating markets, protecting environments, and developing a common foreign and security policy.

A review of this compilation of extensive and detailed analysis would not be complete without acknowledging Koskenniemi’s urgent criticism in the conclusion. Amidst the final days of the Brexit saga, and the first days of Euro-skeptic Thierry Baudet’s rise to power in the Netherlands, one cannot ignore that these contributions “mostly pursue the liberal-internationalist agendas of the 1990s, confidently whistling in the dark” (461). It is, indeed, essential that the comprehensive and detailed assessments of regionalism and internationalism depicted in the book engage more directly with ‘the populist backlash,’ by considering their particular fields of global and regional governance “as contestable (and actually contested) vocabularies and institutional solutions through which some people exercise power over others, to redescribe professional and technical decision-making as the constant reproduction of political and social hierarchies” (462). Looking forward, a first step might include an explicit and critical evaluation of the criteria used to measure the success and failure of the contemporary creatures of universal internationalism and regional supranationalism.  

Suggested Citation: Phillip Paiement, Review of “Globalisation and Governance: International Problems, European Solutions” (Robert Schütze ed.), Int’l J. Const. L. Blog, Aug. 7, 2019, at:“globalisation-and-governance:-international-problems,-european-solutions”


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