The State and Economic Globalization: Any Implications for International Law?

States today confront a new geography of power.' The associated changes in the condition of the state are often described as an overall decline in the state's significance, especially the decline in its regulatory capacities. Economic globalization, for one, has brought with it strong pressures for the deregulation of a broad range of markets, economic sectors and national borders, and for the privatization of public sector firms and operations. But in my reading of the evidence, this new geography of power confronting states entails a far more differentiated process than notions of an overall decline in the significance of the state suggest. And it entails a more transformative process of the state than is indicated by the notion of a simple loss of power. These transformations inside the state and in the state's positioning are partial and incipient but strategic. As a political economist rather than a legal scholar, I would think that these new conditions carry consequences for the role and content of international law. The effort in this brief essay is to map some of the elements for a new conceptual landscape through which we can detect these conditions and consequences. I will focus primarily on conditions that are likely to affect the scope, exclusivity, and normative power of international law and the organizational architecture for its implementation. But I will not focus on the question of international law per se; I leave that to the experts on the subject. Some of the scholarship on international law has begun to address these issues on its own terms and in its own language. The work of legal scholars as diverse as Aman,2 Cassel,3 or Perritt4 comes to mind here, and this is just focusing on legal scholarship concerned specifically with economic globalization and international law, as distinct from legal scholarship concerned exclusively with international laws or with globalization in domains such as the environment and human rights. I. THE CHANGING WORK OF STATES The structural foundations for my argument lie in the current forms of economic globalization. Economic globalization, in my conception, has emerged as a key dynamic in the formation of a transnational system of power which lies in good part outside the formal interstate system; one instance of this is the relocation of national public governance functions to transnational private arenas. But I argue that the system also lies, to a far higher degree than is usually recognized, inside particular components of national states. This second feature can be recognized in the work done by legislatures, courts, and various agencies in the executive, to produce the mechanisms necessary to accommodate the rights of global capital in what are still national territories under the exclusive control of their states For me then, economic globalization does not have to do only with crossing geographic borders, as is captured in measures of international investment and trade. We are seeing a repositioning of the state in a broader field of power and a reconfiguring of the work of states. This broader field of power is partly constituted through the formation of a new private institutional order linked to the global economy, but also through the growing importance of a variety of other institutional orders, from the new roles of the international network of Nongovernmental Organizations ("NGOs") to the international human rights regime.7 As for the work of states, raison d'etat-the substantive rationality of the state-has experienced many incarnations over the centuries. Each of these transformations has led to significant consequences. We cannot take raison d'etat for granted: we need to specify its characteristics in the current phase and at least consider the possibility that it might be constituted differently from what it was in an earlier period, for instance the period up to the 1980s when the global economic system had not yet been implemented on its current scale. …