“Third Spaces”
Whether you agree with her or not, Saskia Sassen has always written interesting things on globalization/transnationalism - often by thinking about it from unusual angles and geographies. Her recent article on “third spaces” is no exception and should be of particular interest to international lawyers. Earlier works, such as on the global city, should also be of interest since they crack open the divide between “national” and “international” and show how regimes and networks overlap, interact, concentrate power in new ways and have different applications — some of which we usually consider “legal” and some of which we do not.
With respect to formal law and regulation, it is worth thinking about her arguments that “[a] fresh type of segmentation is occurring inside the state apparatus, characterised by a growing and increasingly privatised executive branch of government aligned with specific global actors (notwithstanding nationalist speeches), alongside a hollowing out of the legislature whose effectiveness is at risk of becoming confined to fewer - and more domestic - matters.” This decline of legislative power (and the privatization of government) is a big issue for domestic law in the US, with extensive “executive power” debates (small examples include this recent NYTimes article here and a Boston Globe article on the presidential candidates here - though many have argued that this increase was a trend under Bill Clinton as well), all too often without considering whether or not this is happening with respect to more “international” issues, whether increased power and privatization are linked, whether this is happening elsewhere in the world and if there is something larger to be considered. And this should all be considered beyond the hot-button issues of the war on terror and include executive power in economic matters as well.
This also fits in nicely with notions of transnational regimes for economic policy-making (run by “experts”… “elites” might also be appropriate… perhaps these experts are more at ease in executive branches than in legislative… or are more able to get what they want?) per David Kennedy’s work. Alas, the wonderful former HLS/Fletcher prof and student is now at Brown as VP for international affairs and a prof of international relations. Congratulations to him, but surely a loss for HLS.
Jürg Gassmann
July 29, 2008 @ 3:14 am
In order to be academically useful, the concept of “third space” does need a clear definition. I don’t think that definition arises from the discussion presented. Even in the heyday of the nation-state, there were innumerable very significant cross-jurisdictional developments that defy the national-supranational divide: The Latin Monetary Union, the Hague Conventions, the unification of laws on bills of exchange and cheques, admiralty law in general and marine insurance, the Customs Union of 1860 (predecessor to the German Empire of 1871) and the internationalisation of Imperial Chinese customs are such examples. They were not classifiable then, and would not be now. Some (especially the treaties dealing with shipping and border demarcation of rivers) can be seen as formalising feudal practices, but by no means all. Prior to World War I, personal travel was essentially free - the system of passports was only comprehensively introduced after the war.
I’m not saying the concept of “third space” is without merit; the issue of “third space” has existed ever since the nation-state replaced the Roman Empire, with an awful lot of fuzziness in between. I believe it is a useful concept if we focus on the question of legal remedies. This links into, but is not synonymous with, the term “self-executing” - if we look at, for instance, the issue of the rights of European citizens with respect to personal data transferred to the third parties (e.g. the US) in connection with international travel, and the recipients’ obligations and liabilities, the matter of “third space” comes into focus.