Redefining Sovereignty in International Economic Law

Citation

Arnell, P. (2008), "Redefining Sovereignty in International Economic Law", Journal of International Trade Law and Policy, Vol. 7 No. 1, pp. 93-95. https://doi.org/10.1108/14770020810918237

Redefining Sovereignty in International Economic Law is a collection of papers which add to the Sisyphean academic assault on the concept sovereignty. It is novel, however, in that its focus is upon how, or if, international regulation in the field of economic law is able to, in effect, pierce the veil of sovereignty. The recent growth of international economic law, certainly since the establishment of the World Trade Organisation in 1995, makes this examination timely and appropriate.

The book is the seventh in the studies in international trade law series published by Hart Publishing. It follows volumes addressing, for example, the question of human rights and the World Trade Organisation and labour rights in international economic law. Redefining Sovereignty in International Economic Law is comprised of papers that were presented at a conference at Oxford Brookes University in May 2006. Amongst the 17 authors who have written chapters are leading academics in the fields of international economic law and public international law more generally, including Vaughan Lowe from the University of Oxford and John Jackson from Georgetown University.

The work is divided into five parts and 17 chapters. The five parts, to a greater or lesser extent, relate to distinct aspects of the overall subject matter – how international economic law affects traditional and current notions of state sovereignty. The first of the five parts is entitled Sovereignty and International Economic Law. This is the most interesting and relevant of the five parts. Here Lowe, Jackson, Ernst‐Ulrich Petersmann and Robert Howse each address the underlying subject matter of the book in general and theoretical terms. In various degrees the authors question both traditional and modern notions and analyses of state sovereignty.

Jackson, in his chapter, avers that the traditional Westphalian notion of sovereignty is out‐dated, but then suggests that the concept retains value and needs to be reconceptualised. In regard to the first point Jackson notes that very few would be willing to accept, for example, that states have the unlimited power to “…violate virgins, chop off heads, arbitrarily confiscate property, torture citizens … ” (p. 11). The model suggested by Jackson centres upon power allocation conditioned with reference to doctrine of subsidiary. Here, states (and horizontal component parts of states) are merely one level of power base, along with other international and national (provincial and municipal, etc.) legitimate and actual receptacles of power. “Sovereignty‐modern”, writes Jackson is a concept that can be used to describe and perhaps legitimise the exercise of power by any one of these levels of authority. The other chapters in Part 1 follow Jackson's literally and thematically – in the sense of taking a general and theoretical approach to the subject matter.

Parts 2‐5 address specific subjects within international economic law that arguably impinge upon or affect state sovereignty. Part 2, Trade Liberalisation and WTO Reform, contains four chapters related to the World Trade Organisation. Perhaps, the most interesting contribution in this part is that by Philip Nichols of Wharton School of Business, entitled “Sovereignty and reform of the World Trade Organisation”. Here sovereignty is discussed in relation to possible reform of the membership criteria of the WTO. Nichols uses the example of the state of California, noting that its GNP puts it eighth largest in a ranking of WTO members (p. 155). That state, he writes, also has Foreign Trade Offices and enacts legislation related to many aspects of WTO law. Clearly, were it not for the requirement for membership of an entity being a “customs union” then California would be eligible to play a leading role in the WTO. Nichols concludes that at present the existing criteria for membership are valid, and that sovereignty as a concept itself remains largely intact. What has evolved, he notes, is a more sophisticated and less dogmatic understanding of it.

International Treaties and Investment Arbitration is the title of Part 3, containing three chapters. Of these, that which the reviewer most enjoyed reading was by Joachim Karl, entitled “International investment arbitration: a threat to state sovereignty”. Karl, an UNCTAD employee, brings an interesting perspective to the subject he discusses. The author takes a pragmatic approach, for example, by making suggestions for reforms that could help states reassert sovereignty where investment agreements and the arbitrations they have spawned have affected it. Interestingly, Karl by and large discusses the conclusion and amendment of investment agreements having assumed that a concommitant of sovereignty, the equality of states, is a given. In reality, of course, state parties to many bilateral treaties are far from equal in relative wealth and stage of development.

Part 4 of redefining sovereignty in international economic law is entitled Banking Regulation and International Financial Institutions. Notable amongst its three chapters – not least because the other two chapters fail to explicitly and fully relate to the subject matter of the book – is that by Jorge Guira, “International financial law and the new sovereignty: legal arbitrage as an emerging dimension of global governance”. Guira adopts an approach that largely equates sovereignty with power, referring to sovereignty in the sense of being increased or decreased according to a state's financial standing.

The final part of the book is Human Rights and International Economic Law. Again, there are three chapters in this Part. Penelope Simons' “Biting the hand that feeds them: the agreement on agriculture, transnational corporations and the right to adequate food in developing countries” is, perhaps, the most germane and interesting chapter. Here Simons addresses and conflates three distinct and arguably hostile things, a WTO agreement, companies acting internationally and the human right to food. This is done within the context of the sovereignty of developing states. Interestingly Simons notes an inherent conflict between the right to food in the International Covenant on Economic, Social and Cultural Rights and the WTO Agreement on Agriculture. She concludes that, as WTO law stands, international trade rules are and remain inimical to the right to food and development more generally.

Overall, Redefining Sovereignty in International Economic Law is a worthy book. It is an amalgam of essays largely but not exclusively tackling the issue of the nature and future of state sovereignty in light of developments in international economic law. The strengths of the book are found in several particularly well‐written, referenced and authoritative accounts of aspects of the subject, such as those by Jackson, Lowe, Nichols and Simons. Here, in various ways, the now perhaps orthodox subject of the putative demise of sovereignty is put into the context of international economic law. The weakness of the book is its lack of clear and consistent focus on the stated subject throughout (together with variable approaches to referencing). Diversity of approach and subject is of course what is to be expected in a collection of essays, however this is perhaps too great – at least to result in a coherent work that one would profitably digest from cover‐to‐cover. Instead, Redefining Sovereignty in International Economic Law is best suited to being consulted as a reference when one wishes to examine certain defined issues relating to sovereignty and existing at the crossroads of general public international and international economic law.