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Two features have characterised International Economic Law during the recent period of rapid and seemingly unrestrained economic globalization: its emergence as the most important field of international law and its close association with the ruling paradigm of development, as embodied in the celebrated Washington Consensus.
Its importance is confirmed by three different measures: volume, scope and efficacy. The volume of new international economic rules is reflected in the large number of multilateral and bilateral treaties on matters relating to trade, finance and investment and in the numerous decisions by international economic organisations and other bodies that set standards and voluntary codes in areas as varied as banking, corporate governance and food standards.
The scope of International Economic Law rules, perhaps one of its most novel and distinctive characteristics, is related to the extent to which the rules address matters hitherto regarded as part of the exclusive domestic jurisdiction of states. The greater efficacy of International Economic Law rules is reflected in the significant improvements in their enforceability, due to the establishment of numerous international tribunals with jurisdiction to resolve international economic law disputes.
Thus, today, there are more International Economic Law rules and they reach deeper into the national policymaking process and are taken seriously because they are more readily enforced. The prominence achieved by International Economic Law in the late twentieth century is noteworthy because, throughout the 1960s and 1970s, developing countries tried, unsuccessfully, to make use of international legal institutions to support their development efforts.
At the time, most developing countries relied on a development model in which the state played a leading role in steering the economy. By the 1980s, however, developing countries began to embrace a set of International Economic Law rules predicated upon a radically different amodel which is based on the principles of Neoliberalism and drastically restricts the role of the state and transfers control over key economic decisions to international agencies or to markets.
This model of development is generally known as the Washington Consensus. In the areas of trade and investment liberalization, economic deregulation and protection of property rights, International Economic Law rules and institutions faithfully reflect the Washington Consensus. This is precisely the reason why today most governments and international legal scholars take International Economic Law seriously and why anti- globalization activists deride it.
This set of principles has also provided the basis for the emergence of a new economic paradigm for developing countries. Indeed, according to leading proponents of globalization, the rapid economic integration of the world economy has made it necessary to harmonise rules and standards in order to create a level playing field. These rules and standards which are largely derived from economic science have been applied to all states across the world regardless of their level of economic development.
According to Larry Summers, the influential US economist, policymaker and former chief economist of the World Bank, this approach is justified because the rules of economics are like laws of engineering: one set of rules works everywhere. International Economic Law has thus become the main vehicle through which the principles of the Washington Consensus have been translated into international binding rules and policies.
The recently acquired status of International Economic Law in international law is also significant because the set of rules that currently govern the world economy seem to be slowly departing from traditional assumptions underlying the conceptual framework of international law. While hitherto international law has relied on the consent of states to legitimise its rules and institutions, today International Economic Law rules and practices have become increasingly removed from the notion that the consent of states is a prerequisite for the validity and enforceability of international law.
A more powerful source of legitimating for International Economic Law rules seems to be the imperative of global economic integration and the needs and interests of the leading developed states and international power brokers. Thus, for example, today it is not easy to discern a clear link between the profuse number of conditionalities imposed on developing countries and the traditional view that under international law states are only bound by rules that they freely accept.
Regardless of whether this development signals the demise of state sovereignty, as some observers suggest, it is interesting to note that the current transformation of International Economic Law has been accompanied by a revealing shift in the description of states and the content of International Economic Law rules. States are now often no longer referred to as actors, but merely as economies; those that are successful are described as emerging economies and those that are not are either ignored or described as failing or fragile.
Likewise, International Economic Law rules, along with numerous decisions of questionable legal validity, are described as disciplines, thus suggesting that states no longer enjoy the prerogative of opting out of international rules. It is also revealing that the rhetoric employed by developed states and by international economic organisations suggests that one of the main purposes of International Economic Law rules is to ‘lock in’ the process of structural reform that these states are supposed to implement so as to ensure that chronically volatile developing states do not undermine the predictability and stability of the word economy. Developing countries have been required to implement a strict set of rules, while developed countries, especially those that have played a leading role in the promotion of globalization, have embraced these rules half- heartedly.
Instead of tackling the urgent need to reform old international institutions and build effective new institutions to manage the process of globalization, these countries have pursued, through a range of bilateral and regional arrangements, a strategy that gives them ample political space to secure advantages over their close economic competitors. This process has undermined the ideal of multilateralism and made a mockery of the much flaunted objective of creating a level playing field.
Paradoxically, the weakness of the prevailing international institutional framework bodes well for the future of International Economic Law. Indeed, because International Economic Law rules are not deeply embedded in dynamic, efficient or legitimate institutions, they cannot stand in the way of major reform. Indeed, if the world’s leading powerbrokers take seriously the task of building new and more effective institutions for the world economy, and if there emerges a new consensus on development that takes into account the needs and capacities of developing countries, there will then be a unique opportunity to develop new International Economic Law rules and procedures to steer and manage globalization.
This is a difficult task which will succeed only if it is carried out in consultation with all interested parties. One reason to be optimistic is that, today, developing countries will not be taken by surprise as they have learned the hard way that International Economic Law rules, even the most technical, have a major impact on development. In this respect, one of the most important questions is the following: has International Economic Law gone too far? This will be our agenda for next discussion.