Author Archives: oneditor

Africa’s problems are myriad and complex. However, most scholars of Africa agree that one particular issue that continues to bedevil African countries is how to establish democratic nation-states with institutions that promote economic development, consolidate political harmony and stability, and … Continue reading →

This paper presents a study of the Mekong River Commission (MRC) and the International Commission for Protection of the Rhine (ICPR). The primary focus of this study is to analyze and explain how the issues, interests, and participation of local … Continue reading →

Over the past decade, Canada, following the lead of other Western democracies, has engaged in numerous, and at times fundamental, experiments in reducing or reconfiguring the role played by government. These experiments have been conducted, with varying levels of intensity … Continue reading →

This essay attempts to develop a theory of imperial law that is able to explain post-Cold War changes in the general process of Americanization in legal thinking. My claim is that “imperial law” is now a dominant layer of world-wide legal systems. Imperial law is produced, in the interest of international capital, by a variety of both public and private institutions, all sharing a gap in legitimacy, sometimes called the “democratic deficit.” Imperial law is shaped by a spectacular process of exaggeration, aimed at building consent for the purpose of hegemonic domination. Imperial law subordinates local legal arrangements world-wide, reproducing on the global scale the same phenomenon of legal dualism that thus far has characterized the law of developing countries. Predatory economic globalization is the vehicle, the all-mighty ally, and the beneficiary of imperial law. Ironically, despite its absolute lack of democratic legitimacy, imperial law imposes as a natural necessity, by means of discursive practices branded “democracy and the rule of law,” a reactive legal philosophy that outlaws redistribution of wealth based on social solidarity. At the core of imperial law there is U.S. law, as transformed and adapted after the Reagan-Thatcher revolution, in the process of infiltrating the huge periphery left open after the end of the Cold War. A study of imperial law requires a careful discussion of the factors of penetration of U.S. legal consciousness world-wide, as well as a careful distinction between the context of production and the context of reception of the variety of institutional arrangements that make imperial law. Factors of resistance need to be fully appreciated as well. Continue reading →

On March 7, 2002, Professor Marks delivered the sixth annual Snyder Lecture at the Indiana University School of Law—Bloomington.

In their recent book Empire Michael Hardt and Antonio Negri make the claim that: “Empire is materializing before our very eyes. Over the past several decades, as colonial regimes were overthrown and then precipitously after the Soviet barriers to the capitalist world market finally collapsed, we have witnessed an irresistible and irreversible globalization of economic and cultural exchanges. Along with the global market and global circuits of production has emerged a global order, a new logic and structure of rule—in short, a new form of sovereignty. Empire is the political subject that effectively regulates these global exchanges, the sovereign power that governs the world.”

In this lecture I want to consider what Hardt and Negri mean by this claim, what they have in mind when they assert the emergence of a new, global order with a “new logic and structure of rule,” and what implications their analysis might have for students of international law. To bring these issues into focus, I propose to set them against the background of earlier meditations on the relationship between imperialism and international law and on the significance of the colonial encounter in the construction of international legal ideas, concepts and categories.

But first I think it might be helpful to dwell a little on Hardt’s and Negri’s central concept, announced already in the fashionably monoverbal title of their book. For empire is, of course, a term that has many different referents and many different inflections, and if we are to grasp the analysis put forward by Hardt and Negri, we need to be in a position to see how their conception of empire carries forward or departs from other ways of understanding the term. Indeed, we need to be ready not only for comparisons with other ways of understanding empire, but also for comparisons with its similarly polyvalent cognates and affiliates: imperialism, colonialism, and their respective variants. Continue reading →

The theme of this Tenth Anniversary issue, “Globalization and Governance: The Prospects for Democracy,” is a fitting and timely topic. By way of introduction, this article will begin by discussing each of these concepts briefly. “Globalization” has become a buzzword … Continue reading →

The question of the legitimacy of exercising public authority, or more precisely, the legitimacy of governance or government, has been discussed since ancient times. There is a formidable host of literature on the topic, written by philosophers, political scientists, sociologists, … Continue reading →

The pursuit of global democratic governance cannot be confined to global institutions; national state institutions and nation-based citizens need to be part of this project. In this lecture, I want to map a variety of mechanisms and dynamics that can … Continue reading →

When the Indiana Journal of Global Legal Studies published its first issue ten years ago, globalization was still a relatively new term among scholars—but one that was suddenly circulating widely across law and other disciplines in the wake of the collapse of the Soviet Union, the reunification of Germany, the creation of the European Union, and the end of the Gulf War. The end of the Cold War created an illusion of limitless mobility; indeed, in the 1980s, migration—and in particular, immigration to Europe and the United States—approached new peaks. The new mobility of capital also seemed to confirm a borderless world, as structural adjustment regimes remade national economies, and new transnational institutions emerged to encourage and govern world trade. New technologies of communication—even fax was relatively new then—made the world seem small. Migration, telecommunications, and the new world markets for consumer goods were widely read as harbingers of deeper harmonization in the social, political, and economic spheres of the “new world order.” Worldwide agreements on human rights seemed within the realm of the possible. Against this backdrop, the durability of nationalisms and the emergence of new ethnonationalist movements (including large-scale ethnic violence) were registered as counter-currents to these developments; however, the end of apartheid in South Africa seemed to herald the eventual end of even the most tenacious antagonisms.

Given the range of institutions involved in these transnational developments as well as their profound social effects, globalization emerged as a theme across a wide horizon of disciplines, including law, occasioning a broad spectrum of institutional analyses, theoretical assessment, and critical engagement. The first issue of the IJGLS took the measure of these developments in various institutional sectors in different parts of the world, publishing a set of papers from a three-day symposium at the Indiana University—Bloomington School of Law, the first in a series of annual agenda-setting conferences at the Law School. The participants in these conferences, [End Page 1] as well as the scores of authors who have volunteered their papers for publication over the years, including the authors of student notes and book reviews, have made the journal a comprehensive international, multidisciplinary forum for the analysis of and critical debate over the processes of globalization and their externalities. In this project, the support of the Law School and Indiana University has been indispensable—and so, too, have been ten generations of exceptionally talented and dedicated student editors.

In this anniversary issue, we continue to look forward—to what has emerged as the most important externality of globalization: the democracy deficit. With one exception, the articles are based on the authors’ contributions to the tenth Global Legal Studies symposium at the Law School on April 5 and 6, 2002. Saskia Sassen’s keynote address introduces the volume. Sassen examines the relationship between globalization and citizenship, envisioning the possibilities for a new accountability of global economic actors through national institutional arrangements. Following the keynote, the articles are grouped into three Parts. The articles in Part I (by Jost Delbrück, Steve Charnovitz, and Paul Craig) focus on international and supranational institutions of governance, asking whether a transnational demos is possible, and—from different perspectives—considering the prospects for global democratic legitimacy. In Part II, the articles (by Alfred Aman, Sir David Williams, Janet McLean, David Mullen and Antonella Ceddia, John Dernbach, and Tun Myint) turn the lens the other way, examining the impact of globalization on domestic law and, in particular, the consequences of recent developments in national public law for globalization. Their country foci differ, as well as their substantive foci; however, their common theme is the significance of national law in the pragmatics of globalization—and their shared implication that the democracy deficit might be addressed through domestic institutions as well as through new transnational arrangements. But states are not the only actors in transnational or global processes. In Part III, the authors (Muna Ndulo, Mariella Pandolfi, and Ugo Mattei) examine specific contexts in which a democracy deficit is a product of the asymmetrical or fragmentary relationship between states and non-state actors—structural adjustment in Africa (Ndulo), humanitarian NGOs in Bosnia and Kosovo (Pandolfi) and the Americanization of global markets and law (Mattei). These circumstances are distinct in important and obvious ways; however, each of the authors looks to the emergence of new or stronger national institutions as sites of resistance and recuperation. The volume concludes with an essay by Susan Marks, on themes of globalization, imperialism, and sovereignty, based on her [End Page 2] address as the Law School’s Snyder Lecturer on March 7, 2002. And so the volume comes full circle, having considered the democracy deficit as a serious negative externality of globalization—and the prospects for addressing the democracy deficit through local, national, and transnational institutions. Significantly, the perspectives and the proposals vary; together, they make a richly informed and highly imaginative critical dialogue, and set a provocative agenda for future research and innovation. Their sophistication is above all in their aspirations—not for one world government, but for a world where no person’s value is discounted by government in the name of globalization’s imperatives. Our contributors look to citizenship, scholarship, and the articulation of global and national institutions for fresh source materials as they develop new proposals for understanding and addressing the democracy deficit as we know it today. As we go to press, and look ahead to the next ten years, one can only hope that the aspirations behind these essays will not soon date them. Continue reading →

Catherine Dauvergne’s book, Making People Illegal: What Globalization Means for Migration and Law, is a study of the intersection between the phenomenon known as globalization and the evolution of migration law. Dauvergne’s central assertion is that migration law, accompanied by what she sees as the recent global crackdown on illegal migration, has become the “last bastion of sovereignty” for the nation-state in the face of the advancing forces of globalization. Dauvergne argues that, as more of the policy decisions that traditionally fall in the domain of national sovereign power enter the murky realm of globalization, nation-states have increasingly turned to their domestic migration laws as a way to shore up their borders—both physical and intangible—and thus to reassert their national identities. This reassertion of nation-states’ weakening sovereignty serves as a barrier to meaningful progress in fighting illegal migration because it “contributes to failures of policy, law, and imagination” by discouraging creative proposals that seek to detach migration policy from domestic legal frameworks. Where Dauvergne’s book remains focused on developing this argument, it is compelling, original, persuasive, and generally successful. Continue reading →

Rule of law and democratic reform projects often concern lofty questions of constitutional law. But in many countries desperate for reform, deeply entrenched social and political problems present preconditions to any discussion of constitutional reforms aimed at democracy and the rule of law. Zimbabwe is one such nation, which like many others faces the problem of military intervention into domestic politics. This Note examines structural and historical aspects of Zimbabwe’s military problem and utilizes the theory of objective civilian control to demonstrate the plausibility of meaningful reforms. In so doing, this Note provides a demonstrative model for reforming civil-military relations in rule of law and democratic reform projects the world over. Continue reading →

One aspect of globalization in the developed world is the privatization of services once provided by government. This trend is also arising in developing countries, albeit for different reasons, and an area where this privatization is occurring is healthcare. Despite this privatization, the standard of healthcare in many developing countries is unacceptably low. This Note provides an analysis of this phenomenon in one country—Pakistan, a developing country that has increasingly come to rely on private providers, nongovernmental organizations, and international relief groups for the provision of healthcare—in order to draw conclusions that can be applied elsewhere. While this privatization does serve some needs, it is insufficient to provide an appropriate standard of care to the people of Pakistan. This Note argues that in order to raise the standard of healthcare in developing countries, the flow of privatization should be stemmed in favor of greater government involvement. This involvement includes collaborating with private and international entities, providing better oversight, and supplying financial incentives, in addition to the direct provision of healthcare. With evidence that greater government involvement in the provision of healthcare improves standards of healthcare, this Note concludes that the privatization of healthcare in developing countries should be viewed with caution. Further, there should be an emphasis on increased government involvement to ensure the levels of healthcare to which the people of Pakistan and many other developing countries are entitled. Continue reading →

Due to the immense pressure to recruit highly talented prospects and an overwhelming desire to have winning college athletics programs, the recruitment of international prospective student-athletes at NCAA Division I institutions has drastically increased in recent years. NCAA rules founded on localized amateurism ideals are now being applied on a global scale, in countries where there is no similar concept of amateur athletes. This Note argues that the current NCAA amateurism rules inadequately address the potential amateur issues related to prospective student-athletes from various countries. Examples and evidence of the difficulties of apply localized amateur rules to international recruits are examined and discussed. The background of the amateurism idea and according interpretations by U.S. courts of NCAA rules are explained. This Note argues that because amateurism standards differ by country, there is no longer competitive equity between domestic and international college athletes. Although possible solutions have been presented to deal with this disparity, such proposed solutions do not sufficiently resolve the problem. Rather, as this Note suggests, a global standard of amateurism that would be applied fairly to all prospective student-athletes regards of country of origin is needed. Until such a standard is implemented, problems will continue to arise with the amateur standard of international student-athletes. Continue reading →

This Note discusses the domestic and international economic effects of the recent surge of piracy off the coast of Somalia, and uses Somali piracy as a method of exploring conflicting ideological conditions that arise from globalization. In exploring the underlying motivations for this trend, it identifies a dichotomy between primary needs satisfaction within underdeveloped nations and the satisfaction of secondary interests in developed nations, and explains how globalization may be exacerbating the turn toward piracy. This Note first discusses the recent rise in piracy and then explores how the contemporary history of Somalia has engendered the upsurge. Next, it considers how piracy has influenced the economy of coastal Somalia, followed by a look at the ideological intersection between primary domestic interests and secondary global interests. Finally, this Note explores some of the international implications of the rise of piracy in Africa, and whether further expansion is a possibility.
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This Note explores the global problem of gender-based labor inequality as exemplified in China. China’s historic and cultural framework, the efforts the Chinese government has made to coordinate with the global community on women’s rights initiatives, and recent legislation passed at both national and local levels in China provide an interesting case study for countries facing gender inequality in the workplace. The items of legislation, though sometimes drafted using international treaties as a framework, contain unique provisions that provide protections for Chinese women that are not seen elsewhere in the world. Additionally, the Chinese government’s current political goal of achieving a harmonious society signals potentially forthcoming advancements in workplace gender equality.
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The Internet, 24-hour news sources, and a host of other telecommunications advances have allowed global citizens to become instantaneously informed. With the privilege of real-time updates and acute awareness of the world’s events comes the responsibility of being more than a passive observer. Specifically, this Note focuses on the technological improvements in communication during natural disasters—improvements that can be used to assist and aid the victims of catastrophes. In the aftermath of a natural disaster, the country affected is rarely able to provide for its citizens; tsunamis, hurricanes, tornadoes, and earthquakes can (and often do) cripple an entire nation. This Note argues that a global responsibility exists to step in and help an affected country when it cannot help itself.

For instance, the 1998 Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations is the first global attempt to concretely define relief efforts by other nations, without demanding compliance or a singular rigid course of action. Instead, the Convention creates a flexible framework that each member nation can adapt to its own telecommunications infrastructure. In legislating on a global scale, the Convention acknowledges the interconnectedness of the world’s people, and presents ways in which global citizens can improve one another’s existence in the hours following a natural disaster—arguably when they need help most. Continue reading →