International Law and the Future of Freedom

Preface

Traditional political theories, such as those of Locke and Montesquieu, were based on the assumption that each nation was sovereign and independent. Individual freedoms could be protected at the national level in those nations that had the institutions to do so. International law and organization limited national independence only slightly, as through regimes for the protection of foreign business or prisoners of war, and rarely affected individual freedom.

This pattern is failing. The need to reach beyond borders to achieve military security, the globalization of economic trade and investment, the rise of planetary-level environmental issues, the extension of human rights ideals, and the increased role of transnational religious groups have all weakened assumptions of national sovereignty and independence, and have, in some cases, undercut national mechanisms for the protection of individual rights. All these trends have also given increased power to international organizations, which only rarely have mechanisms to protect individual freedom.

Consider the following examples:

In response to terrorism, the United States has extended its military power throughout the world, and is applying its own version of criminal law through extraterritorial prisons and interrogations.

The need to be competitive in international trade is creating strong pressures for corporations to weaken pension and health plans and for nations to weaken security nets for labor.

The United Nations has provided the effective government for close to 10 million people in areas such as Kosovo and Sierra Leone.

The decisions of the World Bank and of the International Monetary Fund create the effective economic law in nearly all the world’s poorer nations, and shape the organization of the banking system in middle-income nations such as Korea and Thailand.

International financial markets are affected by global investment policies of the sovereign wealth funds held by a number of emerging national governments.

Agreements negotiated in the World Trade Organization profoundly affect national standards for genetically modified foods; those negotiated in the International Conference on Harmonization affect the regulation of pharmaceuticals; those negotiated in the UN Economic Commission for Europe affect the regulation of automobile tires for safety. All of these international regulatory processes transfer significant effective power from legislatures to executives.

These examples reflect strong and probably irresistible economic, technological, and social trends. Unlike many critics, particularly those on the left, I do not oppose these trends—in fact, I think that many aspects of these various forms of globalization will benefit humanity and will help to integrate the poorer nations of the world into a more prosperous and more healthy community.

However, these trends pose many threats to our freedoms and to our traditional methods of protecting those freedoms. In this book, I therefore attempt to develop a new approach to deal with this global system, and to define ways to protect our freedoms in the new global international order that is emerging from an anarchical state of nature of nations. That global order is, in part, imposed by the dominant power, the United States, and, in part, created through the strengthening of international institutions. It requires an extension of political theory to consider the international aspects of rights more fully and to recognize that there will be a division of authority and responsibility among different international organizations and national governments and among different institutions within these organizations and governments.

I, of course, build on traditional political theories, such as those of Locke and Montesquieu, that have sought to explain the rise of the nation-state from a presumed anarchic state of nature of individuals, and to define principles to prevent the misuse of political power. And I have attempted to build on traditional work in the international arena, such as that of Vattel, Grotius, and Kant, as well as more recent work, of which I have found the best to be Allen Buchanan’s Justice, Legitimacy, and Self-determination: Moral Foundations for International Law (2004), and John Rawls’s, The Law of Peoples (1999). I have been particularly impressed by the logical care taken by both authors, and have attempted to model my analysis on theirs, even though I believe that I am dealing with quite different questions. Because I am dealing so much with ideas, I have minimized footnotes, and concentrated rather on attempting to give credit to those authors I have found particularly helpful in particular sections.

The following (first) chapter provides a prolegomenon, and seeks to clarify the definitions of freedoms, to provide insight into the behavior and legitimacy of multilevel government, to indicate how stability and freedom can be maintained in such systems, and to deal with the special role of the United States in the existing world system. The next three chapters define the new and changing need to assert our freedoms and the appropriate international scope of our freedoms. They do so, in turn, in the context of the three central issues that our global system must resolve: the balance between security and freedom, the balance between economic equity and opportunity, and the balance between community and religious freedom. With the new need for freedoms thus defined, the subsequent three chapters explore the institutional ways in which those rights can be protected, using a globalized version of the traditional balance of powers division into the global executive, the global legislature, and the global judiciary. In these chapters, the roles of national institutions in shaping and constraining international institutions are considered, as well as the roles of the international institutions themselves. The final chapter then presents a more detailed and explicit short-term reform package to help us protect our traditional freedoms as we live together in this new world.

Many have helped and encouraged me, but a number deserve especial credit. I’ve been privileged to consult on a number of issues with a variety of international organizations, including the Food and Agricultural Organization, the World Bank, the World Health Organization, and the World Trade Organization; these experiences provided nonacademic insights into the operations of international organizations. Participation in the Carnegie Foundation’s Commission on Preventing Deadly Conflict’s project on peacekeeping, and collaboration with Melanie Greenberg, Margaret McGuinness, and all my other colleagues on the resulting book, Words over War (2000), helped in my understanding the evolving role of the United Nations in international security. My coauthors of The Evolution of the Trade Regime: Politics, Law, and Economics of the GATT and WTO (2006), Judy Goldstein, Tim Josling, and Richard Steinberg, helped me to understand a variety of issues about the interplay of domestic and international politics.

Further, I want to thank Stanford Law School and my students in the International Institutions course I taught there three times, and the Reform of International Organization seminar—it was during these courses that many of the ideas in this book were developed. I owe a special thank-you to Frank Lovett and Larry Temkin, my colleagues during a year at the National Institutes of Health’s Department of Clinical Bioethics; they helped me immensely in finding my way into areas of political theory that were new to me. And I want to thank my clinical bioethics colleagues for their feedback during a seminar on the predecessor of Chapter 3, and many colleagues at Stanford for feedback during seminars in the law school, the philosophy department, and the Free-man-Spogli Institute, as well as friends at RAND for feedback during a similar presentation there. Thanks, too, to all those who came to critique the work at a special seminar funded by the Law School in October 2007. Most of all, I want to thank my wife, Julie, for all her encouragement.

The goal of this book is ambitious. Yet the needs of the time require an ambitious effort. The growth of the international order is far ahead of the debate about how we protect our freedoms in this new and changing world. I hope this book can contribute to that debate, most of all by the questions it raises.

J.H.B.

Introduction

John H. Barton (1936–2009) was our colleague and our friend. John had retired from full-time teaching at Stanford Law School in 2002, but, in his view, retirement was just an opportunity to become a more productive scholar, as well as a more active husband, father, and grandfather. His Golden Years were cut short by fatal injuries from a bicycle accident, cheating us of more good years and good works from John, but leaving us with warm memories and a lifetime of scholarship. As it turned out, his scholarly contributions have continued from beyond the grave. He had nearly finished this book at the time of his death. It has been our honor, and pleasure, to help guide his last contribution to publication.

John grew up in the Chicago suburbs, going East to graduate from Phillips Exeter Academy in 1954 before returning to the Midwest and Marquette University. His studies at Marquette presaged some aspects of his future career—he graduated in 1958 with joint majors in physics and philosophy. After college he served in the Navy for three years, then went to work as an engineer at Sylvania Electronic Defense Laboratories, a very secret defense contractor, in Mountain View, California.

John was a twenty-eight-year-old engineer, with a wife and four children, when he started Stanford Law School in 1965. During law school he continued to work thirty hours a week for Sylvania and to be an active parent in a growing family. (His and his wife, Julie, became parents of a fifth and final child during winter break of his second year of law school.) In spite of his other obligations, John was a spectacular student. Professor John Merryman remembered John Barton as a first-year Property student. It was the first time I realized the school was getting so good that some of the students were smarter than the faculty. He even had first-year student John teach one of his class sessions.

After graduation, John left Stanford for Wilmer, Cutler, and Pickering, a leading Washington, DC, law firm, but after only a year he came back to Stanford as a member of the law school faculty. He began teaching in fall 1969, won the teaching award (bestowed by a student vote) his first year, and stayed at Stanford Law School, with only temporary exceptions, for the next forty years.

John remained an excellent, and innovative, teacher until his 2002 retirement—and beyond, as he was regularly called back into service from retirement. He pioneered new courses, from Technology as a Business Asset, to Law in Radically Different Cultures, to Biotechnology Law and Policy. He was particularly important for Stanford Law School’s foreign graduate students. These students are lawyers from other countries who bring vastly different backgrounds, as well as widely varying knowledge of the American legal system and American legal thinking. Even in retirement, John always mentored far more than his share of foreign students. He was truly tireless in that role, through which he helped populate and improve law faculties and law firms around the world.

But in spite of his vital role as a teacher, John was first and foremost a scholar—not an ivory tower scholar, but one who wanted to help make policy, with the dirty hands and the occasional scar to prove it. John’s work covered a very broad range, but four aspects of it are especially noteworthy.

First, he was interested in how science and law intersected, including but not limited to intellectual property. Second, he was interested in the whole world, not just the United States. Third, John was thoroughly interdisciplinary before interdisciplinary was cool—when it was unconventional and even a bit odd. He did work that he thought was important, in the ways that it could best be done, whether or not that fit into the traditional mold of a law school, or law professor—a mold that has changed, in part because John helped break it. And fourth, he was interested in concrete problems, where solutions would make the world a better place. In the first three, he was decades ahead of his time—forty-five years ago he picked out fields that had not yet begun their enormous growth in importance to law schools. In the last, he was timeless.

John’s first topic as an academic was nuclear weapons control. He then became interested in agriculture—in the Green Revolution and its possible successors. And eventually he came to focus on human health, particularly but not solely through vaccines. To all of these he brought a close engagement with science along with a deep knowledge and interest in the legal tools that shaped these problems and their possible solutions—public international law, trade law, environmental law, antitrust law, and, increasingly, intellectual property law. He mastered these legal fields not just because they were fascinating but, primarily, because they were important for people’s lives—including the lives of billions of people who did not know they existed, and whose existence these areas of law often ignored.

And so he fought for more food, better drugs, and improved vaccines, but he did it by working with all sides: governments, nongovernmental organizations (NGOs), and multinational corporations. He idealized none of them, he demonized none of them—he recognized that all had essential roles to play in any solutions.

In his last decade, John may have been happiest about his role in 2001 and 2002 as chair of the Commission on Intellectual Property Rights. The Commission’s report, Integrating Intellectual Property Rights and Development Policy, was an evidence-based effort to understand what kind of intellectual property regimes could promote economic development. Its conclusions reflected John’s appreciation for the power of technology, and the incentives that create innovation, as well as his commitment to improving the lot of the poor:

We need to ensure that the global IP system evolves so that the needs of developing countries are incorporated and, most importantly, so that it contributes to the reduction of poverty in developing countries by stimulating innovation and technology transfer relevant to them, while also making available the products of technology at the most competitive prices possible.

The report was extraordinary; so is the fact that the British government, which created this commission, reached out to an American scholar to chair it. But then, John was an extraordinary American scholar.

It may seem ironic that this book, John Barton’s last publication, departs from his general approach. John’s work dealt mainly with specific, concrete problems and required rich descriptions of the settings of those problems. This book is a much more theoretical and normative effort. And yet, in a way, this book is the culmination of all his work, a result of John’s taking the insights he had gathered from a forty-five-year career in and around international law and using them to propose a whole new framework for international law—and, indeed, for the world.

Concern for human flourishing lay at the heart of everything John Barton did—whether teaching students who were eager to learn from him, in the many intellectual projects John tackled over his academic career, or in his personal relations with friends and colleagues. That concern underwrites the footprint of this book. Barton wished the affairs of the world, from the international to the individual, to be ordered by a global constitutional culture: one that would take seriously the goals of freedom, democracy, and participation in public deliberation.

While human rights are the normative heart of this book, the principal intellectual insight is that globalization has altered the nature of relationships between people and their government through the creation of international bodies and institutions. These institutions have arisen not only because the post–world war economy has encouraged national governments to formalize the ways in which they deal with other governments, but also because the last decades have seen a surge of human rights claims at the individual level, and these claims are increasingly being channeled through international organizations.

The first three chapters of this book provide a careful and balanced analysis of three different domains of human rights that have become crucial catalysts in both the formation and critique of international institutions. While these three domains are divided into the familiar categories of international human rights—civil and political rights, social and economic rights, and cultural rights—this division is not presented as a hierarchy. Rather, this book adopts an approach opposite to virtually all U.S.-based academic work on human rights. That work all too reflexively mimics the U.S. Constitution’s focus on civil and political rights and, as a result, diminishes social, economic, and cultural rights as lesser (sometimes even dismissing them as artifacts of socialism). Instead, this book notes that the formation and continuation of contemporary international institutions has in many ways elided these outdated divisions.

These first three chapters make a superb and lawyerly case for the need for intellectuals and policy-makers in the United States to step fully into a world that is less defined by the old categories of human rights and more defined by human well-being. Like the careful lawyer’s lawyer and academic that he was, John makes the case for a United States that opens itself to the new realities of rights and international institutions. John’s goal for the United States is that it both govern better at home and ensure that its footprints abroad are humane and appropriate. His goal for humanity is that international institutions learn to serve both individuals and governments.

John is clear on issues that for some remain controversial: he clearly believes that new media technologies have a vital role in expanding international freedom of speech; that a balance can and must be struck between intelligence and security concerns and the international prosecution of the harmful actions of governments; and that much greater attention must be paid to the democratic deficit in international organizations through expanding participatory rights. Within the United States, the iconoclastic and oftentimes parochial actions of U.S. policy-makers must be routinely tested against countervailing international trends. And at the level of the United Nations, the UN Security Council must loosen the stranglehold of its five permanent members.

John’s approach to administrative matters is similarly practical. People, rather than governments, should be able to present their human rights claims to international institutions in ways similar to how Europeans can take their claims to the European Court of Human Rights in Strasbourg. The international system must provide participatory mechanisms not only for governments but also for citizens. To ensure that participation in such institutions is effective, new international scientific and statistical institutions must be created—all people must have the chance to know about the fundamental health and environmental issues that confront them, and that will confront future generations. And John calls urgently for an international freedom of information act, in part to keep international institutions honest, but also to national governments to apply international principles consistently over time. Within the United States, this could be achieved by simply ensuring that the U.S. Administrative Procedure Act demands U.S. participation in the international regulatory process, as John explains in his treatment of Economy and Equality in Chapter 3.

Most important, John argues, consistent with key philosophers, sociologists, and anthropologists, that one can no longer assume that the dotted line of a nation-state’s border is in any way coterminus with a single homogeneous culture of its citizens. Rather, countries contain myriad cultures that need to be encouraged to engage in constant dialogue—within and across national borders. That dialogue is most fairly conducted within institutional frameworks that are not overdetermined by any particular religious ideology; John makes clear that he believes secularism supports the best procedural mechanisms for ensuring equal representation in a heterogeneous country.

And in a world of shifting populations, the basic rights of the immigrant must be protected within a system that bestows full citizenship rights within a reasonable timeframe—even if longer-term residents retain voting and subsidy preferences over noncitizens. Crucially, cultural disputes within and between nation-states need international forums in which they can be properly aired. These locations may quite likely be outside formal international institutions such as the World Trade Organization (WTO) and the International Monetary Fund, but they must nonetheless have channels to the social and economic institutions that vitally affect the daily lives of the world’s poor and underrepresented.

The second half of this book adopts the governance template that began first in the U.S. and French constitutions and has since become the taken-for-granted model of good governance: the traditional division of government into the three branches of the executive, legislative, and judicial. The purpose in so doing is to note the differences in their operation at the national and international levels, and to restructure all of them so that the protection of human rights is at the heart of how they work.

John’s sweeping analysis of international organizations includes the United Nations, most especially the UN Security Council; the WTO; the World Bank (together, and with ancillary agencies known as IFIs, or international financial institutions); and the International Court of Justice. John makes a brilliant and novel proposal, in two steps. First, that these institutions have bills of rights and judicial procedures that apply to both governments and individuals; and second, that the G-8—those countries in the world that among them hold all the power that the United Nations, the World Trade Organization, and the World Bank so often neutralize—should form a de facto international executive that would oversee pre-existing international institutions. This new body ought similarly to ensure procedural rights to both governments and individuals.

Perhaps the most challenging, or possibly incomplete, chapter of this visionary book is Chapter 6, which deals with the prospect of an international legislature. This currently comprises the treaty system, and also the WTO, which means therefore that it is driven by the interests of governments—both good governments, representative and functional, and bad ones, autocratic and dysfunctional. John would temper this with national mechanisms that ensure the voice of civil society as represented by international NGOs and subject it to an international budgetary oversight process. These are laudatory aims, but of all John’s hopes for the international community, this one seems farthest from reach, not least because of the multiple incentives, both good and bad, that drive political parties within national governments.

The third branch of international organization is the judiciary. In short, John foresees the development of an international common law. He argues that greater development of human rights norms is essential at the level of national systems, both in receiving more of the standards adopted in current international judicial bodies like the International Criminal Court, and also in sharing the jurisprudence coming from regional human rights courts and from the most human rights–respecting national systems.

Lest it be thought that this book proposes wildly utopian aims that will never gain traction, each of John’s design proposals and normative injunctions functions to strengthen already existing institutions, taking the best of what already exists and adapting it elsewhere. At heart, John’s starting wish is to strengthen national constitutions with real democracy and participation, and to extend such participation to international institutions that themselves have bills of rights—especially procedural rights. Such bills of rights notwithstanding, John wants an international organization watchdog agency that ensures democratic participation and due process as a necessary check on national interests.

John Barton’s last work is a tour de force that fully reflects his spirit. Just as he held everything he did to a high standard of meticulous care, so he holds us all—and all our governments and international organizations—to a high standard of care for our world and for each other. His valedictory is both the culmination of his forty-five years of scholarly work and a distillation of his own, fundamentally caring and decent approach to the world. We are all bereft by his death; we are all enriched by his parting gift of this, his last work.

H.M.S.

H.T.G.

CHAPTER ONE

Prolegomenon

Under a series of resolutions beginning in 1999, the United Nations Security Council, acting under its powers to issue mandatory decisions, has authorized creation of a list of individuals and entities designated as associated with terrorist networks. These individuals and entities are subject to asset freezes and travel sanctions. Individuals and organizations have no right to contest their designation. If a nation applies a sanction against an individual, should that individual have the right to contest the designation as a matter of a fundamental human right to due process or should the sanction stand without judicial review on the grounds that the Security Council resolution overrides national law?¹

Our emerging global political system governs at several political levels: local, national, and international. At the national level, a number of nations, most particularly the United States, exercise significant power well beyond their borders. At the same time, and even in spite of the U.S. Bush administration’s emphasis on unilateral rather than multilateral action, the power of international organizations is increasing. The United Nations has been playing an increasingly important role since the end of the Cold War and seems likely to gain new power in nation-building contexts. The World Trade Organization (WTO) has become a dominant world legislative body, and international financial institutions, such as the International Monetary Fund (IMF) and the World Bank, are essentially shaping the economies of all but the wealthiest nations of the world. At the regional level, the European Union (EU) retains enormous power, in spite of the failure of the proposed new European constitution, and is being imitated in several other areas such as Mercosur in the Southern Cone of Latin America.

Even though international organizations are increasing their power, the nation-state is not disappearing. Moreover, international organizations are often dominated by a few members, so that they respond to the interests of those members. The world will necessarily therefore have power divided between different levels of government. This can be a source of conflict; it can also be a source of opportunity, because divisions of authority can help avert misuse of power.

This book begins by exploring multilevel governance itself, building in particular on the two leading historical examples—the construction of the United States and the construction of the European Union. But before detailing the lessons of these histories, it is essential to explore the shift of power to international organizations, the meaning of freedoms in a multilevel context, and the incrementalism through which the international order is being built and through which freedoms can be protected. The chapter begins, therefore, by reviewing these areas and then exploring the possibility of dividing sovereignty. It next looks at the specific processes that are shifting power to international organizations, and then turns to the factors that strengthen or weaken international institutions, looking at those factors deriving from the interests of the member governments, and at those deriving from citizen loyalty to the different levels. It then turns to some of the practical issues that affect the sustainability of dividing governmental responsibility. It finally draws lessons for the analysis of the current global governance system.

The key lessons are that the effective authority of centralized government systems derives in large part from political evolution that takes place separately from, and after the formal creation of, the centralized authority, and that creating new protection for freedoms generally requires a constitutional crisis. Institutions become facts that create their own dynamics; control of the dynamics requires confrontation.

1.1. Globalization and international organization

In today’s world, the exercise of power beyond national boundaries and the transfer of power from the traditional nation-state to international organizations are neither avoidable nor per se undesirable. Much economic activity achieves economies of scale only at levels beyond the size of most nations. Important environmental effects occur on global levels and not just on national levels. Security threats may be posed in a poorly governed area of one nation, and yet be a threat to all. There will thus inevitably be action beyond national boundaries. In this book, globalization will be taken to describe all these trends that effectively override national boundaries.

Likewise, there will inevitably be stronger and stronger international mechanisms for the coordination of national policies and sometimes for direct international action. For industry to provide the benefit of economies of scale, there must be ways to negotiate over the political costs of economic change and to define mechanisms to resolve trade disputes. For the environment to survive, there must be new mechanisms of exchanging information and shaping economic development. For security threats to be met, there must be ways to authorize national and international action—even, sometimes, at the cost of impinging on traditional national sovereignty.

These developments are often good, and they can bring benefit to all human beings. Hence, this book starts with a presumption that globalization and international organization are generally good things. Yet we traditionally protected our rights through mechanisms that operated within nation-states and sometimes only within the territory of nation-states. Obviously those mechanisms need to be revised to deal with globalization and international organization. And developing and strengthening such new mechanisms will help make it politically possible to expand the powers of international organizations.

1.2. Rights

In order to deal with global issues, it is necessary to distinguish four groups of rights. Each group translates in a different way to the international order. The first group, or inherent rights or freedoms, comprise those that inhere specifically in the individual—that is, rights of freedom of religion, of speech, of privacy, and protection against unreasonable searches, and of freedom from torture, together with trial-oriented rights such as rights to hearings, to counsel, to confront witnesses, not to be forced to testify against oneself, and the like. These are the rights found in the eighteenth-century U.S. Bill of Rights, in the French Declaration of the Rights of Man, and in more recent formulations such as the 1966 International Covenant on Civil and Political Rights; they can be viewed as at the heart of any rule of law. The even more recently formulated rights against torture and the right against capital punishment (accepted in Europe but not in the United States) clearly also belong in this category, as do the rights of business and individuals to hearings and to due process in