The question of the relationship between international legal systems, transnational corporations (TNCs) and state sovereignty is vexed. One of the most interesting aspects of these fraught relationships is their increasing visibility within media and policy debates, partly a consequence in the European Union of the proposed Transatlantic Trade and Investment Partnership (TTIP) between the EU and the United States. Much of the public outcry at TTIP has been focused on the potential erosion of democracy, where sovereign states may not be able to legislate against the actions of corporations since this could leave the state open to litigation by TNCs for profit-limiting activities. This is a very good example of Barbara Oomen’s (2005) point concerning the ‘judicialization of international relations’, where she argued that diplomatic relationships are being increasingly replaced by the language and imperatives of legal obligations. While this shift may, at first glance, seem a logical step towards a more rational and accountable international system, of course it is also structured by the unequal ability of different actors (states, corporations, social movements, individuals etc…) to ‘make law’ and pursue one’s interests through legal avenues.
Of course, we must be careful not to think of TTIP as the starting point of the rise of corporate legal manoeuvres against sovereign states. The Guardian has published an extended article examining how corporations can, and have been for some time, suing states for breach of contract when government policies are considered to infringe profit making. There are a set of interesting geopolitical consequences of these processes, not least the ways in which legal instruments are undermining the independence of post-colonial states in ways that are hidden from public scrutiny and, consequently, democratic oversight. In tandem, these processes shine light on the long-established question of who is the subject of international law, in this case state territoriality is reasserted (through legal culpability) while individual accountability is erased. This is an interesting inversion of international criminal law, which often presents (or idealises) state territoriality as an irrelevance in the pursuit of justice.
Alex Jeffrey, June 2015