International Law and the Future of Freedom - Hardcover

Barton, John H.

Hardcover

ISBN 10: 0804776695 ISBN 13: 9780804776691

Verlag: Stanford University Press, 2014

Inhaltsangabe

International Law and The Future of Freedom is the late John Barton's exploration into ways to protect our freedoms in the new global international order. This book forges a unique approach to the problem of democracy deficit in the international legal system as a whole-looking at how international law concretely affects actual governance. The book draws from the author's unparalleled mastery of international trade, technology, and financial law, as well as from a wide array of other legal issues, from espionage law, to international criminal law, to human rights law.

The book defines the new and changing needs to assert our freedoms and the appropriate international scopes of our freedoms 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. Barton explores 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.

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Über die Autorinnen und Autoren

Author: John H. Barton was the George E. Osborne Professor of Law at the Stanford Law School. His many books include The Evolution of the Trade Regime: Politics, Law, and Economics of the GATT and the WTO (2006) and The Politics of Peace: An Evaluation of Arms Control (1981). Editors: Helen M. Stacy is Affiliated Faculty at the Stanford Law School and Senior Fellow of the Center on Democracy, Development, and the Rule of Law, Freeman Spogli Institute for International Studies, Stanford. Henry T. Greely is the Deane F. and Kate Edelman Johnson Professor of Law at the Stanford Law School.

Author: John H. Barton was the George E. Osborne Professor of Law at the Stanford Law School. His many books include The Evolution of the Trade Regime: Politics, Law, and Economics of the GATT and the WTO (2006) and The Politics of Peace: An Evaluation of Arms Control (1981).Editors: Helen M. Stacy is Affiliated Faculty at the Stanford Law School and Senior Fellow of the Center on Democracy, Development, and the Rule of Law, Freeman Spogli Institute for International Studies, Stanford.Henry T. Greely is the Deane F. and Kate Edelman Johnson Professor of Law at the Stanford Law School.

John H. Barton was the George E. Osborne Professor of Law at the Stanford Law School. His many books include The Evolution of the Trade Regime: Politics, Law, and Economics of the GATT and the WTO (2006) and The Politics of Peace: An Evaluation of Arms Control (1981)

Helen M. Stacy is Senior Fellow of the Center on Democracy, Development, and the Rule of Law, at Stanford University's Freeman Spogli Institute for International Studies and Affiliated Faculty at the Stanford Law School

Henry T. Greely is the Deane F. and Kate Edelman Johnson Professor of Law at the Stanford Law School

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International Law and the Future of Freedom

By John H. Barton, Helen M. Stacy, Henry T. Greely

STANFORD UNIVERSITY PRESS

Copyright © 2014 Board of Trustees of the Leland Stanford Junior University
All rights reserved.

ISBN: 978-0-8047-7669-1

Contents

FOREWORD BY JULIE BARTON, 
PREFACE, 
Introduction, 
1. Prolegomenon, 
Part I: Defining Freedoms, 
2. Security and Freedom, 
3. Economy and Equality, 
4. The Intangibles of Governance, 
Part II: National and International Institutions, 
5. The International Executive, 
6. The International Legislature, 
7. The International Judiciary, 
8. Where to Begin?, 
NOTES, 
INDEX, 

CHAPTER 1

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?

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...

Details zur Ausgabe

• Verlag: Stanford University Press
• Erscheinungsdatum: 2014
• Sprache: Englisch
• ISBN 10: 0804776695
• ISBN 13: 9780804776691
• Einband: Gebundene Ausgabe
• Anzahl der Seiten: 280
• Kontakt zum Hersteller: Mare Nostrum Group B.V.; gpsr@mare-nostrum.co.uk; ; Doelen 72; Breda; 4831 GR; Niederlande