The changing concept of sovereignty

Contrary to what many globalizers think, the State is not vanishing with globalisation; it has only stopped acting as a monolithic structure.

The state is not disappearing; it is disaggregating into its separate functionally distinct parts. These parts - courts, regulatory agencies, executives, and even legislatures - are networking with their counterparts abroad, creating a dense web of relations that constitutes a new, transgovernmental order. Today's international problems - terrorism, organized crime, environmental degradation, money laundering, bank failure, and securities fraud - created and sustain these relations.

In other words, global problems are highly complex and in order to solve them efficiently and effectively, a new form of international cooperation is needed: Transgovernmentalism. The state as a unitary actor is no longer able to deal with these issues. The principles of speciality and expertise have led government institutions to establish direct contact with their counterparts in other latitudes. At the same time, global challenges can only be addressed in a sphere of liberty where people with different interests (even contradictory interests) can join efforts to find rational solutions that avoid violent conflict.

Political and economic freedoms allow individuals to form transnational associations and to influence policy in light of the resulting interests, inhibiting their governments from acting violently toward one another.

Transgovernmentalism is only possible among liberal democracies. Only if all interest groups enjoy political and economic freedoms, can these networks flourish. Formal democracy and an active engagement of civil society are essential requirements of transgovernmentalism. The state can only be disaggregated where real separation of power exists, and where all branches of government are accountable to the people generally, but especially to their own constituencies. National courts applying international law must be mindful of the interests of lawyers, pressure groups, business persons, human rights organisations and other courts, irrespective if their nationality.

With this emerging concept of sovereignty, foreign policy will be shaped by these networks and not only by the government institution in charge of foreign affairs.

Disaggregation of the State is what really differentiates the Liberal concept of judicial globalisation from that advanced by the Realist approach.

Now that the basic ideas of this kind of judicial globalisation have been expounded, a brief commentary of its implications in world governance is in order.

Judicial globalisation and its implications in world governance

Firstly, judicial globalisation would imply a shift from traditional Interstate Dispute Resolution processes to a Transnational Dispute Resolution model, which is integrated with supranational and national judicial and quasi-judicial bodies, characterised by high levels of independence from the states that have given birth to them.

The resolutions of supranational bodies would be recognised and implemented with relative ease in domestic law. But more importantly, individuals, national courts, and legal persons, other than states, would have standing in supranational fora. Access by non-state actors is the key element to this new kind of adjudication. Participation of civil society as litigants in international tribunals offers a series of advantages over IDR. As opposed to governmental representatives, private parties do not have to remain loyal to their nation's interests, but rather to their own individual rights. Therefore, the involvement of private parties may reduce the problem of diplomatic frictions. Since the political problem between states is eliminated, natural and legal persons are encouraged to litigate more frequently in these forums. This very fact increases the caseload of courts, which in turn, generates a robust body of jurisprudence that can be adopted not only by other supranational judicial entities, but also by domestic courts in general. Compared to interstate dispute resolution, transnational dispute resolution tends to generate more litigation, jurisprudence more autonomous of national interests, and an additional source of pressure for compliance.

The legal principles advanced by these courts and tribunals can be shared through formal legal channels (legal links between supranational tribunals and domestic courts as in the case of article 177 of the Treaty of Rome; judicial comity or constitutional cross-citation), or by means of more informal exchanges. Political pressure by interest groups and the exchange of shared values between judges are meta-juridical ways of consolidating this change.

Secondly, judicial globalisation would imply that a good share of international relations would be legalised, and that the margins for political manoeuvre by governmental institutions, in guiding foreign policy, would be considerably reduced, especially in the areas of human rights (individual rights) and economic liberties. However it is not clear whether this scheme of legalisation includes areas such as social, economic and cultural rights, poverty, security of states, among other important international issues. It would be a regime that only applies to liberal democracies. If that is really the case, then a huge part of the world would be let outside of its advantages. The regime would be the European experience writ large. But European institutions were viable, in part, because the nations that have formed them had a common heritage from the legal, ethical, cultural, religious and economic standpoint.

In sum, judicial globalisation as construed by this strand of Liberalism, would transform courts and tribunals around the world into discrete but significant centres of power that would dictate the canons of what the "free world" understands as fundamental individual economic and political liberties. These canons would not be established by Western states as such, but by one of their most important by-products: Tribunals. However, it seems that outside proponents of economic freedom and human rights, there is no interest in demonstrating that TRD is a good idea for widening a space where different cultures may broaden their dialogue and legal communication. Regarding this point, Slaughter tries to universalise the idea of transgovernmentalism, and therefore of TRD, by stating that:

The problem with this position is not so much that liberal democracies are undesirable, but that two discourses overlap: the objective analysis that tries to describe how phenomena take place and the subjective-ethical discourse that advances a particular political agenda. This and other critiques to the Liberal approach to judicial globalisation will be developed in the following section.

Finally, these Liberals hold that this new form of adjudication seems to have an expansionary character; that is, it not only reproduce itself, but plows fertile ground for creating new legal norms, often in unintended ways. To acknowledge the uncertainty surrounding judicial globalisation is a sign of prudence by these liberal authors. They are aware that that the evolution of the major European courts would not have been predicted when they were created. Both ECJ and ECHR were established to function as most IDR resolution processes. The Liberal authors assert that things are changing but do not try to appear as prophets. This approach gives them leeway to continue elaborating on their theories. The following section elaborates a critique to judicial globalisation as conceived by them.