Multilateralism is not a solution to domination – “Great Powers” work together to hoard wealth and resources amongst a small elite group of individuals via economic and military imperialism

The shift from a colonial to multilateral international order was full of great promise. Colonialism was built on coercive domination. European colonial systems were famous for locating the most profitable economic elements in the metropole, while treating peripheral countries as producers of raw materials, as sites of grueling cheap and slave labor, and as captive markets for European finished products. The 1941 Atlantic Charter signaled the hopes of multilateralism, promising an end to territorial domination, a recognition of the right to self-determination, an effort to work collectively towards lowering trade barriers, improved labor standards and economic advancement, promoting freedom of the seas, and creating a world free of want and fear.1 The United Nations (UN) enshrined these goals, recognizing that nations would interact as sovereign equals drafting international law through multilateral processes.2 Multilateral institutions created new international legal rules to promote free trade, to keep oceans open for all, to create a stable currency exchange system, and to help secure peace and security. Colonial prerogatives including the right to use force to open markets or to compel the repayment of debts were eliminated. The shift to multilateralism created profound changes in international law, usually in the direction of creating international agreements and institutions that could garner greater international political support from states. Yet global capitalism operated alongside this international legal and institutional transformation. The forces of global capitalism served as a break on what was politically possible. Newly independent states hoped that their growing numbers would translate into a multilateral power to renegotiate the set of global economic rules that had been created by and for colonial powers. Their hopeful ideals—for permanent sovereignty over their own natural resources, for a New International Economic Order (NIEO), and for a set of more equal and fair international economic agreements—failed in large part because of the refusal of wealthy states to accede to developing country demands. Multilateralism therefore also served as a break on what was possible. This Foreword integrates international law (IL), international relations (IR), and global history conversations, using the global history of others to explore how the shift from the colonial to multilateral era influenced international lawmaking.3 I do this by creating an expansive definition of global economic law that includes categories that today’s legal scholars might call international law, transnational law and transnational legal orderings,4 and binding private contracts between firms, banks, and states that are then upheld by domestic courts. I need this larger category because state and economic actors have options. They can choose what I will soon develop as the category of multilateral international law, which must be made in a multilateral way and fit into a system of international law. Or they can choose the other legal forms that are part of global economic law—transnational law, private contracts, bilateral agreements—which can be more flexible and can better reflect the goals of powerful economic actors. To illuminate the normative and political tensions within global economic law, I construct a patchwork quilt review-essay of a new generation of scholarship, that is inserting a legal sensibility into the study of colonial systems or a capitalist sensibility into the study of international legal development. While a different seamstress could create a different quilt, this patchwork review-essay seeks to reveal the operation of global economic law by assembling studies where circumscribed examinations explicitly speak to and provide revealing insight about the larger whole of global economic law and the transition from the colonial to the multilateral international order. This Foreword’s analysis is a companion to a project that focuses on the post-World War II multilateral systems regulating global trade and money.5 As a prequel, the essay advances four main arguments. First, the scholarly gaze of IL and IR scholars includes blind spots that hide the legal infrastructure of global capitalism, thereby obscuring how states and firms use law, lawyers, and legal arguments to their advantage. What is thereby minimized is how the system of state-supported private contracting and the scholarly inattention to colonial law and private international law recreated certain colonial era practices. Also falling into the blind spot is the reality that a failure to collectively decide (what I call non-decisions) may be as important as collective decisions, especially when the topic is the global economy. Second, global economic law operates as an international regime complex—a form of global governance that has specific attributes.6 Regime complexes are usually not intentionally designed, rather they are incidentally created as different groups of actors construct agreements to their liking, and as international agreements get layered next to and over each other over time.7 While there are benefits to governing via an international regime complex, two challenges are salient for this study. Regime complexes generate holes that, despite their dysfunction, do not get repaired. Relatedly, regime complexes parcel authority and responsibility across elemental institutions so that sometimes no one institution or authority is fully responsible.8 In addition, a lack of an agreed-upon legal hierarchy across the elemental institutions and agreements allows actors within to play the different layers of authority against each other. For example, by moving from one institutional venue to another, actors can either escape or draw on legal obligations that are present in one system but lacking in another. These strategies are revealed when one studies how capitalist actors maneuver across the categories of law that are part of the global economic legal complex. Third, while both the laws and lacunae of the colonial and multilateral global economic systems reflect state decisions, economic actors can act independently in ways that constrain state action. In both the colonial and multilateral eras, global firms asked for and Sovereigns provided domestic and international law and international relations support to secure these firms’ global operations.9 Yet it is also true that firms have used jurisdiction jumping to escape state efforts to curb business excesses. The Marxist notion that states are mere handmaidens of capitalist interests misses how firms also work through and across the international regime complex to escape individual and collective efforts by states to regulate the global market. Fourth, this rearview-window analysis has its sights on the future. We should not expect these trends to change even if Western power declines and Asian power ascends. The nature of global capitalism is that it is adaptive and driven by an extractive and profit-seeking logic. Global capitalism can shed entire regimes—like slavery and colonialism—and then reform and reproduce inequality and exploitative relationships in new forms. Meanwhile global economic law, in its multilateral, bilateral, coalition of the willing and private law forms, remains the legal infrastructure that facilitates and structures global capitalism, enabling firms to jump jurisdictions to escape state regulation and to exploit gaps in the international regime complex of global economic law. If multilateralism remains the primary ordering principle of international relations, and if global capitalism remains a fundamental organizing element of the world’s economy and international relations, then new emerging powers (Brazil, Russia, India, China, and South Africa (BRICS), or states with rising economies) are likely to replicate or reproduce pieces of the American-led multilateral order, even as they aspire to get beyond it. And these powers are likely to do so using the existing tools of global economic law