The rising tide of nationalism has reached new peaks in 2016. The continued ascent of anti-immigrant parties throughout Europe was eclipsed by Brexit and the nomination of Donald Trump as the Republican candidate for the U.S. presidency. Before making a series of uncouth remarks, Trump was leading in most of the polls. Experts were baffled by the unanticipated popularity of these stark anti-globalization sentiments that cut across the traditional political divide between left and right and united Trump voters with Sanders followers.
Several explanations have been offered, backed by serious attempts to rationalize these voting trends (such as Arlie Hochschild’s Strangers in Their Own Land and Mike Carter’s I walked from Liverpool to London. Brexit was no surprise). According to these explanations, the rise of the national reflects voters’ resentment towards neoliberal globalization served by multilateral institutions, which has benefitted others while depriving them of economic opportunities and social mobility and depleting national social safety nets. Multilateralism is blamed also for the failure to regulate the flow of migrants who add to these worries. The simultaneous rise of brazen unilateralism by national leaders of countries such as Russia and China, who have invoked Cold War-era notions of state sovereignty, and resorted to perilous tricks taken from the old Soviet script book, signaled to voters in the West that the world remains a dangerous place, one in which multilateralism might not be the most reliable means of containing external threats. These voters have suddenly come to realize that trust in multilateralism, which has encouraged states to commit to cooperation as the way to protect their interests, might be misguided and irresponsible in a world where competing nations continue to explore ways to increase their relative edge over others.
Analytically, voters’ disillusionment with multilateralism is grounded in three interconnected perceptions: first, that in an intrinsically Hobbesian world, multilateralism’s optimistic vision is based on shaky premises; second, that multilateralism has proven itself ineffective in promoting whatever neoliberal goals it was ostensibly designed to achieve; and third, more specifically, that multilateralism has failed the diffuse, politically weaker constituencies who were led to trust distant bureaucrats in remote global institutions that serve the narrow interests of “the one percent.” If voters in developing countries were consulted, they would undoubtedly have made additional valid claims against a Northern-dominated multilateral system that often disregards their needs and concerns, and only rarely respects their rights.
For multilateralism-sceptic voters, the reimagined nation-state promises a reassuring retreat to an imaginary safe past, where people could trust their co-nationals who were people “like us,” who spoke our language, were attentive to our worries, and were capable of reasserting full control over the borders and imposing taxes on the rich. Nations can be made “great again” by eschewing globalization and erecting walls to restrict the undesired movement of people, goods, services and capital.
Those of us, who retain the view that the resurgence of nationalism is misguided and that globalization cannot be undone, face a fork in the road that has three prongs. The first prong suggests accommodating the rising tide of nationalism by slowing down integration or even turning back on current arrangements. Perhaps an illustration of this is the statement issued on June 25, 2016 by the foreign ministers of the six founding members of the European Union. The statement “recognize[s] different levels of ambition amongst Member States when it comes to the project of European integration” and resolves to “focus our common efforts on those challenges which can only be addressed by common European answers, while leaving other tasks to national or regional levels.”
This prong would seem difficult to reconcile with what we have learned about the collective action problems facing us and about the proper ways to address them. Having studied the various collective action failures that have plagued humanity across the ages, and in the face of new critical challenges, many of us tend to favor multilateralism as the means to promote stability, prosperity and global justice. Reverting to unilateral measures would only exacerbate those challenges. “Splendid isolation” – if it remains a viable option in a world where supply chains have eviscerated political boundaries – will not be splendid nor will it achieve isolation. We have tried mercantilism, we have experienced the deleterious consequences of beggar-thy-neighbor policies, and we know that their harmful effects will be borne in particular by the anti-globalist voters. No new walls could insulate us from the adverse consequences of untreated global challenges, from rogue regimes and terrorism to climate change, global pandemics or food security risks. Moreover, turning away from the commitment to the universal protection of human rights is morally and legally wrong.
The second prong of the fork facing us would maintain the trajectory of post-Cold War multilateralism despite its growing unpopularity. With Trump disgraced, a victorious Hillary Clinton might attempt to continue the Obama administration’s policy of pursuing “partnerships” such as the Trans-Pacific Partnership (TPP) and the Trade and Investment Partnership (TTIP) that epitomize many of the just concerns of the anti-globalists (see here). But to ignore the rising domestic opposition is an increasingly risky endeavor for politicians. The surprising decision by the European Commission to have national parliaments ratify the EU–Canada Comprehensive Economic and Trade Agreement (CETA) is another indication that politicians and bureaucrats have finally, perhaps belatedly, started to rethink the continued expediency of fast-forward, unaccountable and therefore exclusive globalization.
The third and final prong of the fork calls for institutional reforms leading to what may be termed inclusive multilateralism. Instead of multilateralism that excludes and disregards domestic constituencies such as factory employees, local service providers and other middle-income consumers (in both developed and developing countries), inclusive institutions will be accountable to all of them, provide them with opportunities to convey their concerns and assert their demands, and enable them to regain faith in multilateralism.
Indeed, it has become increasingly apparent that a substantial number of multilateral institutions have functioned to further disempower domestic electorates by expanding the authority of the executive branches of powerful states active in multilateral initiatives. Furthermore, all too often the move to global institutions has led to an erosion of the traditional constitutional checks and balances found in many democracies. The new global sources of democratic deficits increasingly deprive individuals and collectives of the opportunity and capacity to shape their life opportunities. While multilateralism is good in principle, the current type of exclusive multilateralism which benefits the few and fails most others has reached its limits.
Inclusive multilateralism is also likely to be more effective in reaching its goals than the exclusive model. In Why Nations Fail, Daron Acemoglu and James Robinson distinguish between two types of national economies: “extractive” economies that allow small groups of individuals or narrow interests to exploit the rest of the population (e.g., the colonization of South America), and “inclusive” economies which empower individuals and integrate many constituencies in governance (the colonization of North America). Extractive economies fail because they are not sustainable. We now can see how the same dynamics work in global institutions to explain the unsustainability of extractive multilateral institutions. Since voice brings with it political clout, it can be expected that inclusive institutions will adopt policies that allocate burdens and benefits more equitably. Inclusive institutions are likely to be not only more attentive to the diffuse voters, but also potentially more effective than the extractive ones in promoting collective goals.
This third approach, of inclusive multilateralism, specifies the goals in a rather abstract manner. But what does it actually mean to include constituencies thus far disregarded by multilateral institutions? Herein lies the challenge for lawyers – international lawyers, but also domestic lawyers. As lawyers trained in decision-making processes and in remedying the problem of the disregard in public and private law, in domestic as well as in international law, we have acquired sensitivity to the ways in which norms and institutions operate conceal power and suppress the politically feeble, but also how they can curb power and manage conflicts between rival interests. As a consequence, we can ascertain whose voices should be included in decision making processes and what the failures of existing institutions are and how to remedy them. In fact, this was exactly the motivation behind the scholarly efforts to explore the law of global governance in recent years by scholars of international organizations and of global administrative law.
Inclusive multilateralism can at least somewhat mitigate mass migration, a human catastrophe that remains unresolved. Whether caused by war, corrupt governments or climate change, migration is often a symptom of domestic or global governance failure that can be corrected by inclusive multilateralism that is attuned to the needs and rights of distant strangers. Genuine inclusion of Southern stakeholders in policymaking increases the likelihood that their needs will be recognized and addressed. By having voice in global bodies, chances are that these individuals and communities will not have to literally vote with their feet when they give up hope for a decent future in their land. Multilateralism that includes distant strangers could ease the consequences of neglecting these likely migrants.
We do have examples of multilateral institutions that operate to increase the voice of unrepresented stakeholders. International tribunals and other review mechanisms have to some extent managed to amplify their voices and attend to their concerns. As lawyers, we can analyze the promise and limits of such interventions and suggest means to make them more inclusive and more effective. The new political climate could make policymakers more open to considering such recommendations.
So we should thank the shrewd politicians on both the left and the right who have skillfully translated the deep-seated resentment and anxiety of frustrated citizens into a successful, if ultimately misguided, political platform. These trumpeters of nationalism have reinvigorated the domestic public sphere as a force that multilateralists must reckon with. The same trumpets must also call our attention to the lost voice of those who have voted with their feet and to the need to include them as well in an inclusive multilateralism. The new political landscape throughout Europe and in the U.S. should be seized as a long overdue wakeup call for the architects of multinational institutions: they must return to the drawing board and explore ways of including those left behind in the multilateral decision-making processes. We lawyers are among these architects of change.