What is specific about putting global power relations in the hands of lawyers?
Arguably, this “legalization” is a defining feature of our era. International organizations have been given a great deal of delegated power, a lot of which is not readily reclaimed by national governments. States have put down on paper the rules of the game when it comes to commerce, investment and other topics, and the paper is not readily burned. Indeed, if a state wanted to burn the paper, it would feel the need to justify the action in accordance with the paper’s protocols. (Witness all the handwringing in the Bush and Obama administrations about how to ensure the War on Terror is being fought in accordance with international law.)
In the near-decade I spent as an advocate on Capitol Hill, I was often accused of crying wolf – imagining up a WTO or international threat to sovereignty over sensitive domestic issues where none had yet materialized. Nations wouldn’t challenge each others’ financial regulations, I was told by folks on the left, center and right – it was risky, impolite and would just boomerang back on them.
Reading the diplomatic and political tea leaves can be a fun game. But in an era of “legalization”, it matters less than it used to.
What do I mean? Lawyers and dispute-settlers have certain professional norms that they follow: use and give effect to legal texts; represent your client; resolve the dispute once it is initiated. Thus, once a nation or investor decides to use WTO rules to attack financial regulations, the WTO panelists will not typically refuse to apply the WTO law, or refuse to resolve the case.
That is what is interesting about the recent WTO case by Panama against Argentina over the latter’s anti-tax haven initiatives. While Panama and Argentina may not matter much in some realpolitik theory of international relations, they are equal members of the WTO, and have the right to launch cases on the bases that were laid out in texts from the Uruguay Round. The WTO panelists must resolve the case and apply the law – however inconvenient for the “great powers” that may prefer these rules to be kept under wraps. Precedent and norms will be created as a result of this process, like it or not.
This is part of what is specific about leaving the major tasks of global governance to the lawyers – they will actually do their job. Politicians, however, can choose at useful moments to not do their job, and save themselves and the planet the occasional headache.