Governing Globalization

Volume 02 Governing 02 March 2021 Globalization Revue Européenne du Droit GROUPE Scientific Director D’ÉTUDES Mireille Delmas-Marty GÉOPOLITIQUES Revue Européenne du Droit ISSN 2740-8701 Legal Journal edited by the Groupe d’études géopolitiques 45 rue d’Ulm 75005 Paris https://legrandcontinent.eu/ [email protected] Chairman of the Scientific Committee Guy Canivet Scientific Committee Alberto Alemanno, Luis Arroyo Zapatero, Emmanuel Breen, Laurent Cohen-Tanugi, Mireille Delmas-Marty, Pavlos Eleftheriadis, Jean- Gabriel Flandrois, Antoine Gaudemet, Aurélien Hamelle, Noëlle Lenoir, Emmanuelle Mignon, Astrid Mignon Colombet, Alain Pietrancosta, Pierre-Louis Périn, Sébastien Pimont, Pierre Servan-Schreiber, Jorge E. Viñuales. Editors-in-chief Hugo Pascal and Vasile Rotaru Editorial Managers Gilles Gressani and Mathéo Malik Editorial Comittee Lorraine De Groote and Gérald Giaoui (dir.), Dano Brossmann, Jean Cattan, Pierre-Benoit Drancourt, David Djaïz, Sara Gwiadza, Joachim- Nicolas Herrera, Francesco Pastro and Armelle Royer. To cite an article from this Journal: [Name of the author], [Title], Revue européenne du droit, Paris: Groupe d’études géopolitiques, March, 2021, Issue n°2 absence of a comprehensive shared ideology underpin- ning the multiple, disparate and fragmented normative spaces, our societies are still seeking an appropriate le- Mireille Delmas-Marty • Professor Emeritus at gal narrative, able to both reflect and tame them, while Collège de France, Member of the Institut de France avoiding the twin pitfalls of the “great collapse” and of Hugo Pascal • PhD candidate, Panthéon-Assas the “great enslavement”. University Vasile Rotaru • Phd candidate (DPhil), Oxford Indeed, globalization is far from being limited to in- University ternational trade, and calls therefore for new rules of co- REVUE EUROPÉENNE DU DROIT REVUE EUROPÉENNE existence between heterogeneous political communities, without any hope that relevant normative guidelines (the “North Pole”) could arise out of the traditional “hearths” of shared values. During the bygone era of national communities, arising out of both shared memories and common oblivions, collective agreements and disagreements seemed to shape legal rules and structure political institutions, stabilized by shared (albeit evolving and some- A plural global governance times imposed) values and interests. These “national compasses” became increasingly ephemeral; today, they are disappearing one after the other, under the pressure of the corrosive forces of globalization, unable to meet At a first glance, it might seem anachronistic to write 2 the challenges that humanity faces as a whole. Without about global governance, since the era of grand univer- a new compass, humanity travels like a “drunken boat”, salist declarations, globalizations of trade and transna- carried by the four winds of the Earth, nostalgic of a van- tional agreements is on the brink of being replaced by ished memory and of undefinable common values. So, that of rediscovered national interests, isolationisms and where can be found the tools for such a reconstruction, the selfishness of the “Me First” politics. The crisis – or and how can we reinvent a form of global governance perhaps the polycrisis – in which we find ourselves, as a fitting for all the parties? result of the emergence of economic interdependencies uncoupled from the bonds of solidarity, is above all the Without doubt, reflections about a “global” law are reflection of a certain form of globalization, character- not new. They are apparent in theories seeking to con- ized by a structural fragility inherited from profound struct a global constitutionalism, a global administrative and precipitous transformations. A new world is already law, or a transnational non-State legal order. None of under way, a heterogeneous, unstable and unpredict- these (multiple and diverse) projects have yet succeed- able amalgam, whose features and fault lines could not ed, and their struggles testify to the inherent tensions, have been anticipated. This trend is apparent in the new even irrationality, of any attempt to rely on well-ordered protectionisms and the crisis of multilateral coopera- legal categories, stemming from idiosyncratic histories tion, but also in the emergence of numerous alternative and memories, in order to understand and act in a world but sometimes incompatible political, social and eco- that is fundamentally disordered, interactive, unstable nomic models. and non-hierarchical. Global challenges are multiplying, whether related In other words, the complexity of these unprecedent- to current and future pandemics, migratory crises, the ed challenges, as well as the diversity of lifestyles and fight against crimes against humanity, financial and so- particular interests, make legal transplants, or extrapola- cial crises, tax evasion, or the ambivalence of power- tions of national solutions to the global level, ineffective ful new technologies, to cite but a few. Together, these and, above all, inappropriate. challenges, which show a humanity able to threaten its The two pitfalls of globalization, the hegemonic order own future, create, in fact, an (involuntary) community of a universal monarchy, what Kant called “despotism”, of fate. Whether one likes it or not, they call for a global on one hand, and the great disorder of a world that is not concertation and, without doubt, a break with national- only divided, but fragmented, on the other, can only be ist reflexes in favor of new rules of coexistence between avoided through a contextualized universalism, where different communities. Rather than a denial of these in- legal rationality would not provide “ready-made” solu- escapable realities, the current polycrisis is an opportu- tions, but rather the tools for a rational deliberation and nity to question, before a new acceleration, the concepts cross fertilization, able to create unity out of plurality. In underlying the unflappable race towards an increased other words, acknowledging that diverging national legal globalization. systems cannot be unified and replaced by a single mod- It seems necessary, in this regard, to acknowledge the el, a true global governance of the commons, if possible, growing inadequacy of traditional legal thinking. In the can only be plural and unstable, hybrid and flexible. Issue 2 • March 2021 Groupe d’études géopolitiques GOVERNING GLOBALIZATION GOVERNING On closer inspection, this call for a plural governance principles that must be respected in order to acknowl- is merely the reflection of a common practice, that of edge the proximity beyond the diversity. the legal “tinkering” engaged in by the actors of global- One can find traces of this search for guiding princi- ization, that is to say, the attempt to “globalize” national ples in the long (but somewhat overlooked) tradition of legal orders through harmonizations rather than unifi- the ius gentium of Roman antiquity, supposed to reflect cations, and to “contextualize” international norms by the requirements of natural reason, that is, the needs adapting them to local circumstances. Its incarnations common to all humans as rational beings. The tradition are numerous. continued in the Middle Ages through the ius commune, This effort of mutual tolerance is apparent, for in- the result of a hybridization of Roman law, canon law stance, in private international law, where the opera- and lex mercatoria, applied as a method of reasoning and tions of qualification and recognition are based on the a guide to the interpretation of diverse and complex lo- acknowledgement of a certain proximity of legal con- cal norms. cepts and institutions, beyond the diversity of their This last point leads us to another dimension of a plu- national manifestations, provided, however, that such ral global governance, which requires that formal valid- operations do not offend the fundamental principles ity, a notion intertwined with the definition of common (or the international public order) of the “recognizing” standards of deliberative rationality, be combined with authority, in other words, that the latter can accommo- an axiological validity tolerant of divergent approaches, date in its national legal order the foreign concepts and insofar as they are mutually comprehensible. It also im- institutions without thereby denying its own core values. plies procedural requirements, aimed at ensuring that A similar story can be told about the methods used in the final decision, whatever its content, is rationally ac- 3 the implementation of international instruments when ceptable: fair representation of the parties, transparency any uniformization is unfathomable. Such is the case of in the motivation of decisions, rigor and coherence in the so-called “functional equivalence” method, building the use of weighting methods, as well as, where appro- on a fruitful mix of legal realism and systemic function- priate, respect for reliable scientific data. alism. When the OECD took the initiative of a Conven- These are the sine qua non conditions of a rational tion on Combating Bribery of Foreign Public Officials, deliberation, which substitutes contextualization for its drafters, aware of the deep divergences between the uniformity and compatibility for pure and simple con- legal cultures of member states in criminal matters, lim- formity, without falling into arbitrariness, based on an ited themselves to defining a system of basic principles updated formalism relying on non-classical logics,

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