This post concludes a symposium on international law under the second Trump administration. Read the rest of the posts here.
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It has been widely observed that a key characteristic of Trump 2.0 is the marginalization of international law. As the administration has turned away from the post-Cold War world order and undermined various international institutions, most notably the WTO, international law has become increasingly irrelevant as a language of justification. The significance of this shock to the “rules-based order” is beyond doubt. Yet as I explain in this brief post, its impact on specific sectors of the global economy has been far from uniform, in part because not all sectors have undergone the same degree of formal legalization and judicialization in the processes of neoliberal globalization. Instead, some have remained subject to highly informal and political forms of ruling.
To illustrate this argument, I will focus on two sectors in which legalization and judicialization have not been the predominant mode of ruling during their globalization: telecommunications and civil aviation. These two sectors, which have been called the “nerve systems” or the “arteries” of the global trade, are public goods that have enabled the expansion of global capitalism generally, as well as key levers of geopolitical competition during periods of capitalist transformation. This hybrid and intrinsically contradictory nature is reflected in the mixture of formal and informal, international and domestic, and legalist and political forms of ruling that govern them. Interestingly, international lawyers often refer to these two sectors as areas where international law functions relatively well even in times of (geo)political turmoil, without considering in more detail how these two sectors are governed in practice and through what forms. This suggests that international lawyers, who tend to focus on formal, legalised processes and institutions, will often fail to perceive the evolution of the global capitalist system and its legal order.
Without painting the full picture of the governance landscape of telecommunications and civil aviation, I single out the following two key elements: a lack of strong adjudicative functions in the formal international organizations for these sectors and the importance of privatization and commercialization.
Turning to the first element, while it is true that both sectors were brought under the world trade regime and subject to general trade disciplining (e.g., market access, non-discrimination) since the end of the Cold War, the rules governing these two sectors go far beyond what is provided by the WTO. Postwar international bodies, notably the international telecommunication union (ITU) and the international civil aviation organization (ICAO), remain important forums of multilateral cooperation, and importantly, these bodies, unlike the WTO, do not possess strong adjudicative functions. Given the primary importance of ensuring technical compatibility, safety, and global interoperability, dispute settlement appears to be secondary to dispute prevention. When disputes do arise, both sectors demonstrate a clear preference for diplomatic over judicial means for resolution.
In the case of telecommunications, for example, the Radiocommunication Bureau of the ITU may intervene in disputes related to interferences of radio frequencies, but per the ITU Convention (Art.12.2(2)(f)) the intervention is limited to issuing non-binding recommendations. The ITU Convention also provides the possibility of arbitration (Art.41), but there has been no formally initiated arbitration since the ITU’s reestablishment as a UN specialised agency; and notably, the ITU Convention does not refer at all to the International Court of Justice for dispute settlement. As for civil aviation, under the Chicago Convention (Art.84-86), the ICAO Council indeed has a quasi-judicial function, and disputant states can resort to ad hoc arbitration or appeal the decision of the ICAO Council to the ICJ (the most recent example, currently before the ICJ, is a high-profile case concerning the downing of MH17). But on the whole, this sector has a limited track record of adjudication: in its history, only eight disputes have been brought to ICAO Council; seven to ad hoc arbitration; and fifteen to the ICJ, the majority of which were Cold War period cases.
The general lack of judicial activism is not, I should stress, an indication that things mostly go smoothly in the two sectors. Specifically, for telecommunications and civil aviation, due to their highly technical nature and the fact that both are public goods that provide crucial enabling conditions for global capitalism, tensions and hurdles in governing these two sectors are manifested and managed differently, often in ways not quite perceptible to those who focus primarily on judicial processes. And, as shown by the recent increase of civil aviation cases at the ICJ, a reliance on judicial proceedings does not suggest purported depoliticization (as commonly observed in international trade or investment), but may instead be a signal of heightened political disagreement.
Turning to the second element of the governance landscape, the relative importance of the ITU and the ICAO has decreased due to significant privatization and commercialization since the 1980s. Partly, privatization was accompanied by the expansion of the world trade regime that began to discipline some aspects of these sectors to allow for new entrants and enable competition (telecommunication rates and the subsidization for aircraft manufacturing being two examples). However, more importantly, because of privatization and commercialization, the private sector significantly influences the ways these two sectors are ruled.
Some of this private sector influence is still mediated through formal international bodies. For instance, in developing and updating technical and safety standards, the ICAO has developed a collaborative relationship with the International Air Transport Association. The ITU, owing to its reform in the 1980s and 1990s, has also become particularly amenable to the needs and interests of the information-related industries, which include not only telecommunication companies but their large corporate user groups that demand reliable and cheap telecommunication services.
In other cases, however, industry-led governing takes place entirely outside formal international bodies, through groups and associations of technical experts and industry actors, such as the Internet Engineering Task Force and the Institute of Electrical and Electronics Engineers, which adopt crucial technical standards for new information and communication technologies. These largely informal processes—developed by the private sector, reinforced by market uptake, and sanctioned by domestic authorities that incorporate them into licensing or certification requirements—enable powerful companies to ‘lock-in’ global markets and effectively entrench their dominance, which has long raised questions about legitimacy and fairness. It is also, unsurprisingly, a site of intense inter-capitalist competition. This has been particularly visible in the case of telecommunications in recent years, as Chinese companies are increasingly assuming the role of norm entrepreneurs in these informal standard-setting bodies, a development that has generated anxiety about the splintering of universal standards. Such competition highlights how informal processes obscure the role of the state, which is either entirely absent, giving free rein to commercial actors, or somewhat omnipresent, instrumentalizing those private actors. In any case, international lawyers have largely overlooked how such informal, industry-led rulemaking contributes to and is reflective of the current geopolitical shifts.
In yet other cases, the private sector exerts power neither through formal international institutions nor outside them, but by forcing more radical transformations of such institutions – even effectively killing them. One example of this, which I discuss in my forthcoming book, is the privatization of the International Telecommunications Satellite Organisation, established as a formal organization in 1973 under US leadership to provide global communications satellite services. Thanks to relentless pushing by major American telecommunication companies and the Federal Communications Commission, this organization was restructured in 2000 into a company, Intelsat, and hence completely stripped of any privileges and accountability mechanisms of international organizations. The global governance of telecommunications was thus transformed into a matter of corporate governance, a subject on which most international lawyers have little expertise.
Another consequence of privatization is that these two sectors have become more deeply integrated into a wide range of commercial activities and global value chains. As a result, they are increasingly connected with finance, insurance, and taxation, all of which are subject to highly diverse forms of ruling, and they have become intertwined with global financial markets and speculative capital. The privatized Intelsat, just mentioned above, was subject to financial engineering by hedge funds and private equity firms and had to file for bankruptcy in 2020. Another example, particularly pertinent since the US/Israel war against Iran, is the financialization of jet fuel purchases. While such financial markets are indeed legally structured, this occurs primarily through contract enforcement by the domestic courts of powerful states, which so far, have not been subject to the kind of formalist legalization at the international level as we observe with international trade.
The foregoing analysis shows that these two sectors, telecommunications and civil aviation, have never been fully brought under the legalist model of governance that is commonly considered characteristic of the post-Cold War neoliberal world order. Yet the governance of these two sectors also demonstrates important neoliberal features, notably, the proliferation of informal and industry-driven rulemaking that often purposefully avoids state-based institutions, the enforcement of such rules and private contracts by powerful domestic authorities without multilateral processes, and the profound change of formal international institutions themselves to better accommodate the needs and interests of the private sector. This mixed picture of formal and informal, legal and political, and international and domestic ruling is not surprising given the multifaceted nature of these sectors. On the one hand, they are public goods fundamental to the capitalist world system which requires connectivity, stability, low cost, and interoperability to organize and ensure the flow – often asymmetrical – of goods and capital. These requirements in turn lead to close administrative and technical coordination between jurisdictions and between private actors. On the other hand, these sectors are highly capital- and technology-intensive industries subject to the imperative of profitmaking and competition, while also often embodying the state capitalist ambitions of powerful countries.
While the governance matrix mapped in this short post is necessarily incomplete, some questions can already be asked. If the formal, legalist model of governance has not dominated the most crucial sectors of the global economy, why does it occupy such a prominent position in the minds of international lawyers, and what material and ideological factors have contributed to its prominence in the past five decades or so? How can international law treat informal or hybrid processes on their own terms as important terrains of experimentation and contestation, rather than as exceptions or aberrations? Which features of particular sectors—their history, social relations, positions in the value chain, etc.—contribute to the (sometimes hyper) legalization and judicialization, and which point in the opposite direction? How might such contrasting processes of legalization and informalization be nevertheless interconnected and holistically assessed and explained? Finally, and more urgently, how might new mixtures of formal legalization and informal governance emerge in response to Trump 2.0?
