Global Challenges and the Shaping of International Law

• Author: Everton Vieira Vargas
• Position: Diplomat - Serving at the Office of the Secretary General of the Ministry of External Relations of Brazil - Professor of Diplomatic Language at Institute Rio Bianco, the Brazilian diplomatic academy.
• Pages: 166-189

Page 166

In recent decades, the world has witnessed an exponential development in communications and an increased interest of nations in different issues, such as trade, environment, poverty, nuclear proliferation, intellectual property and human rights. These issues are viewed as matters of global concern. As such, they have been subject to a growing political effort to develop internationally agreed upon principles and norms to discipline the action of national governments. This is not an entirely new fact: international law has been used since States became the major actors in world affairs as one of the main instruments to manage their relations peacefully. Now, however, the issues at stake encourage some schools of thought to question the clear separation that existed between the "domestic order" and the lack of a hierarchy among nations.² This has led to discussions that, in view of their complexity, are still unresolved about the role and the future of the nation-state and the extent to and form by which sovereignty should be invoked in dealing with matters of interest for the world as a whole.

The instantaneity of communications increased the speed of information and also trade and financial flows. Technological progress and its effects on the international division of labor introduced a new and decisive element in the capacity of nations to compete internationally. This has raised new expectations and influenced patterns of production and consumption, occasionally aggravating existing inequalities, particularly in developing countries. The repercussions of these changes called into question the capacity of governments to manage emerging social demands, particularly in the developing world.

Page 167

Asymmetry, globalization and international institutions

The dynamics of politics among nations have been altered as the linkage between different issues became more evident relating their specific variables and processes to social conditions and activities, as well as to national and regional circumstances. As decisions on environment, finance, trade, poverty eradication, human rights, and non-proliferation generated greater concern in different societies, the action they required became global challenges as a number of nations would not be able to cope or to endorse some of the choices eventually made. This was cleariy the situation of the developing nations, where economic, financial, technological and political vulnerabilities are higher in view of the asymmetries that characterize the international system.

These challenges were generated mainly by the crises and the transformations that occurred throughout the world, particularly at the end of the 1980s and during the 1990s, which deeply influenced the interests of the industrialized countries. Their international and diplomatic discourse could be summed up in three key assumptions:

(i) The need for domestic economic and political reforms with emphasis on the reduction of the role of the state and increased participation of the private sector;

(ii) A new approach to development problems with greater concern for their impacts on the global environment and the creation of sound and stable conditions to attract investment conditions, in particular by transnational corporations;

(in) The need for collective global action to resolve problems that transcend international boundaries, such as those related to non-proliferation, human rights and climate change.

These assumptions have deep political implications. They are structured around concepts that have different interpretations according to the situation that prevails in a society. For example, the "reduction of the role of the state" is a concept that was widely used in public documents and in the academic literature of the 1980s and 1990s and strongly recommended by international institutions and the Governments of rich countries to be part and parcel of economic reforms in the developing countries. On the other hand, in some industrialized countries, this concept was applied in a selective way. The state gave up some activities, but maintained or even enhanced its participation in other areas, in particular those related to defense. Characterizing issues and actions as global implies a concern for events or activities in the developing countries that could have repercussions for the security and the way of life of the rich nations. The assumptions imply a willingness to understand and respond to new social realities, but, at the same time, they reveal an essential fragility faced by nations to give responses to the challenges they face simply by adopting policies and measures at the national level.

Page 168

The discourse of the time was pervaded by the economic liberalization experienced by some societies and transmitted a vision of the future, according to a set of ideas and the Weltanschauung of these societies. The message conveyed was a representation of a new era that had begun with the end of the Cold War and the so-called "victory of democracy and capitalism". The almost absolute hegemony enjoyed by the developed countries, in particular by the United States, since then³, has defined the meaning of their discourse. It should be borne in mind, however, that the discourse is understood in different ways according to the representations that each people gives to their lives and to their experience of the social order and of historical change at a certain period of time.⁴

The agenda spelled out in the discourse of the rich nations put politicians, businessmen and civil society in the developing world at a political crossroads: how to promote change given the political and economic imbalances caused by the disparities of power?

The very nature of these challenges ensures that addressing them requires new arrangements for individuals and institutions to act within the political system. The issue here is one of significance, i.e., what did the text of the discourse mean to different audiences.⁵ Action is related to a whole series of people's attitudes, beliefs, values and common abilities, which form political culture. As recognized by Giorgio Del Vecchio "there is no interaction between men, there is no possible controversy the more complicated and unforeseen it can be that admits and demands a legal solution".⁶ Therefore, a change in political culture is associated to the responses to these challenges and presupposes devising more democratic and effective decision-making processes,⁷ This is a complex and controversial task both at the domestic and international levels with important consequences for the development of international law.

One of the main conceptual controversies put forward by global challenges is that of "deterritorialization".⁸ At the political level, the notion of "deterritorialization" refers to the ability of national governments to preserve their autonomy to adopt policies and measures to comply with their international commitments without jeopardizing their national interests. Solutions for issues of global concern shouldPage 169be applied all over the world with the support of international organizations and civil society. The mobility of economic, political or social interests should not be hindered by the geographical notion of the territorial materiality that links people to land, one of the historical pillars of international law.

Domestic interests are critical to identify the basis for calculating the implications of collective responses to global challenges. The contemporary patterns of production associated to the development of technology have created new kinds of potential dangers and risks for society, Dangers and risks are not limited to the geographical area where they are caused; their effects can be even worse for those societies that have contributed the least to their creation. As Beck says, societies become "self-referential", in the sense that their interests have little or no regard to broader human needs.⁹ Therefore, the issue of managing the international order and the quest to make relations among States more democratic and based on the rule of law have become critical.

At the end of World War II the international system was at the same time in shambles and marked by the preeminence of the United States as the dominant power in world politics. The Cold War was based on the idea of a condominium between the United Sates and the Soviet Union to run international relations. This drew attention to the lack of a world government and the asymmetry derived from economic, technological, military and political power. In this context, governments perceived the importance of international institutions as instruments for promoting cooperation among States. These institutions also proved themselves useful for the rich countries to promote their domestic agenda and enhance their national interest by furthering the adoption of resolutions, statements, declarations, agreements and other types of international decisions that gave international transcendence and legitimacy to their domestic norms. The role of international organizations became a key factor in giving a clear meaning to international governance regarding the issues associated to global challenges. These institutions also had a significant influence in the shaping of national policies and, therefore, setting the guidelines for the development of national laws and regulations through their operational activities and other cooperation programs. This occurred particularly in the developing countries, either because of the lack of capacities or as a result of the conditionalities they have to meet to have access to development aid from multilateral sources or from...