From Colonial to Multilateral International Law: A Global Capitalism and Law Investigation
iCourts Working Paper Series, No. 248 (2021)
Forthcoming, An invited Forward to be published in I•Con, the International Journal of constitutional Law (volume 19, issue 3, 2021 )
91 Pages Posted: 24 May 2021 Last revised: 15 Sep 2021
Date Written: May 17, 2021
This Forward integrates international law, international relations, and global history scholarship to understand two global trends that are in tension with each other: 1) the shift from European colonial dominance to a law-based multilateralism, which enabled a more equal and inclusive international law and 2) global capitalism which across time has been a political and economic force that, left to its own devices, promotes exclusion and inequality. Alter builds an encompassing conception of global economic law to show the interplay of colonial law, private law, domestic law and international law in enabling and constraining global capitalism across time. The investigation looks backwards so as to think forward. The larger goal of the endeavor is to imagine how an Asian law-based capitalism might continue past trends and recreate continuities despite a professed desire to be different. Just as capitalism once locked in colonial features despite the shift to multilateral international law, multilateralism and capitalism may be forces that sustain the very features of the Western Liberal International Order that China seeks to move beyond.
Theoretically, the article argues that we need to conceive of global economic law as an international regime complex that in the colonial era included colonial law and private contracts, and in the multilateral era includes private contracting and extraterritorial domestic law. The various elemental units in the complex provide states and firms with options, and these options create an incentive to block or circumvent multilateral solutions. Blocking leads to multilateral non-decisions, which then unleash power-based bilateralism, coalition of the willing preferential international law, and private and market forces that step into the void. The non decisions are thus as consequential as the decisions— yet non decisions tend to fall into the blind spots if IL/IR debates. The options alongside the legal and market developments they unleash then constrain states from encasing markets so as to protect domestic, social, and political priorities.
The Forward will be published in 2021, with responses appearing in 2022.
Keywords: International Law, TWAIL (Third World Approaches to International Law), history of international law, International Regime Complexity, Global economic law, international political economy
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