Does Public International Law Have Anything to Say About the Economic Crisis?

by Kenneth Anderson

Like many OJ readers, I am anxiously reading the newspapers on the sovereign debt crisis in the Eurozone.  My international law teaching is almost entirely international economic law, so I have reasons to follow these events closely.  In important ways, crises of these kinds make one feel as though our fates lie in the hands of central bankers, and the armies of macroeconomists supporting them.  At the same time, however, the current crises are governance events – in the sense of domestic voting populations, parliaments, ministers, and the interactions of these actors with national, international, and transborder institutions.  My question is what, if anything, international law scholars have to offer in understanding and interpreting these events, and what international law scholars might think they imply for transborder and international institutions, for governance and its theorizing, and for the future of the European Union as a governance project.

One answer is, not much.  The economic realities will shape institutions over the long term, and international law scholars will have to see what emerges over time.  Alternatively, these kinds of crises can be seen to confirm whatever one’s prior view was – particularly on the question of whether the problem was trying to do too much politically in European unification, or too little.  But it seems to me that there should be things to be said about such things as the possibilities and limits of inter-governmental bargaining through regulator networks, for example, or the limits of collective action, or the re-shaping of governance relations in a multipolar world and the role of the BRICs, or the future possibilities for governance in the EU, etc. I don’t mean that lawyers should play macroeconomist – or that lawyers who do governance issues should suddenly decide that they can interpret sovereign debt contracts.

But there are governance issues here. One answer is that it is way too soon to know what happens and scholarship has to wait.  Fair enough; I’m more or less content anxiously to read the newspaper and wait on events; I do read sovereign debt contracts and their covenants as part of my studies, though for anything complicated I consult my colleague Anna Gelpern, and I can’t predict what will happen or even who exactly will adjudicate them.  Haircuts? Defaults?  Sovereign eurobonds?  Leveraged borrowing against the rescue fund?  Northern euro and southern euro? Quite apart from the economic law questions, I have broader questions – what are the possibilities of emigration from Greece to more prosperous parts of the EU, for example, and the implications for welfare states?  What about free movement of people within the eurozone in the teeth of radically differentiated austerity conditions across the EU?  What about Barroso’s speech on ever closer union as the solution?

There are a lot of folks in our scholarly world who write about forms of governance, global and EU constitutionalism, network regulatory theory, etc.  I wonder where these fields go next.  Will we see a wave of cases in the ECHR and the ECJ that seek to address welfare austerity issues? Or economic migration?  I don’t know, but these are the sorts of questions that keep nagging at me as a scholar in trying to understand the crisis in Europe.

Regular readers have heard me say before that I sometimes think a lot of public international law has collapsed into international criminal law in international tribunals, at least as scholarship goes. This might be a moment to ask what happened to the rest of it.  Not that I’m offering anything – and I am happy to say that it’s too soon to say much.  Also, unsurprisingly, I find that events confirm remarkably closely my views of governance.  But I have this nagging question as to whether we as scholars ever will find something to say about the crisis of today and its long term implications for governance.

Note to young and aspiring scholars: The national security-terrorism decade is over in international law, transborder law, and domestic constitutionalism, even if there are many dangling issues that haven’t been worked out, such as the scope of covert action, drones, targeted killing, trying terrorists, detention, etc.  The 90s were liberal internationalism; the 00s were non-state actor terrorism and state counterterrorism.  Like it or not, questions answered or not, events have moved on.  It is now the turn of two different things, which are nonetheless closely intertwined: International, transborder, and domestic constitutional economic law, on the one hand, and the international law of competitive and jostling rising great powers, on the other.

(PS. One blog that does engage these areas is The Multilateralist, by my estimable American University colleague, David Bosco. Here is David’s sobering takeaway from the IMF meetings in DC  over the weekend.)

http://opiniojuris.org/2011/09/28/does-public-international-law-have-anything-to-say-about-the-economic-crisis/

6 Responses

  1. Ken,
    Good question. I think the sleeper story of the summer – at least in international economic law – is the decision by a (divided) arbitral tribunal to take jurisdiction over claims brought by holders of Argentine bonds to the International Centre for Settlement of Investment Disputes (ICSID).
    At issue are fundamental questions about Argentina’s breach of international law vis a vis its default and restructuring last decade. Not too many people in the sovereign debt world saw this coming. But, suddenly, the prospect of ICSID arbitration is a wild card thrown into the debt crisis mix.
    See one of several reports we did on this at Investment Arbitration Reporter:
    http://www.iareporter.com/articles/20110819_2

  2. Ken,
    With regard to your note to the young and aspiring, you have an uncanny ability to be where the action is, so I’m not inclined to doubt your recommendations.  I would like to know, however, whether this assessment supersedes your previous anticipation of a law of war litigation push against the next Republican administration.

  3. I have an article coming out in the Columbia Journal of European law that touches on many of these issues, available here:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1780591

  4. Matt – I welcome a chance to read your new article, congratulations, and I encourage OJ readers to look at it too.  

    Well. This post is partly a plea for general international law blogs like OJ to take in a wider discussion of topics – and partly an admonition to myself to do so.  it’s not a suggestion that we stop talking about the rest of it, but a suggestion that we should take on a wider range rather than oddly allowing our conversation to gradually narrow, without quite noticing it.

  5. Note to young and aspiring scholars:  Write about what interests you.  When it is all said and done what you write and whom you teach is what will remain. Make all of it count.
    Best,
    Ben

  6. Ben,
    What interests Ken is frequently what everyone else is talking about.  But he is blessed with the ability almost always to have something substantive to say about it, just in time.

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