Global Law and Governance
International Court of Justice in The Hague
The concept of global governance is contested in a number of areas: its meaning, its prescriptive merit, and its political viability. It does not mean ‘world government’ in a federalist sense, but rather a global framework of coordination among international organizations, national governments, civil society and the private sector, with the United Nations playing a central role. An exploration of the idea of global governance, and in particular global constitutionalism, can be found in a range of modern authoritative studies, most particularly:
- Global Governance: Ethics and economics of the world order, M. Desai & P. Redfern, Eds. (Pinter, NY; 1995)
- On Humane Governance: Towards a new global politics, R. Falk (Penn State UP, University Park; 1995)
- NGOs, the UN, and Global Governance, T. Weiss & L. Gordenker (Lynne Rienner, Boulder; 1996)
- Approaches to Global Governance Theory, M. Hewson & T. Sinclair, Eds. (SUNY Press, NY; 1999)
- Religion and Humane Global Governance, R. Falk (St Martins Press, NY; 2000)
- Global Governance and the Quest for Justice, R. Brownsword, Ed. (Hart Publ., Oxford; 2004)
- The Global Governance Reader, R. Wilkinson Ed., (Routledge, London; 2005)
- Governing the World: The History of an Idea, M. Mazower (Penguin, NY; 2012)
A useful series is the Routledge ‘Global Institutions’ series (New York; and Oxford, UK), notably:
- A Crisis of Global Institutions? E. Newman (2007).
- Global Think-tanks, Policy Networks, and Governance, J. McGann (2010);
- Non-governmental Organizations in World Politics, The construction of global governance, P. Willetts (2010);
Two journals directly related to the subject are:
- Global Governance (a quarterly journal published since 1995)
- Global Constitutionalism (three issues annually since 2012)
Global Governance, the UN and National Sovereignty
The relationship between global governance and the principle of national sovereignty is perhaps the single most critical, and contentious, issue of the modern era. The UN Charter opens in the name of ‘We the Peoples of the United Nations’ yet its first principle is the sovereign equality of its 193 member states which act on their behalf. This is explored in the following books:
- Between Sovereignty and Global Governance: The United Nations, the state and civil society, A. Paolini et al, Eds. (St Martins Press, NY; 1998)
- The Legitimacy of International Organizations, J-M. Coicaud & V. Heiskanen, Eds. (UNU Press, Tokyo; 2001)
- International Organizations and their Exercise of Sovereign Powers, D. Sarooshi (OUP, New York; 2005)
- Global Governance and the UN: An unfinished journey, T. Weiss & R. Thakur (Indiana UP, Bloomington; 2010)
In 1995, the Commission on Global Governance submitted a report to the UN Secretary-General on the subject. Its observation on the relationship is perhaps the most insightful made to date: “Sovereignty has been the cornerstone of the inter-state system. In an increasingly interdependent world, however, the notions of territoriality, independence, and non-intervention have lost some of their meaning. In certain areas, sovereignty must be exercised collectively, particularly in relation to the global commons”. Our Global Neighbourhood, Commission on Global Governance (OUP, Oxford; 1995), p. 337 The idea of collective sovereignty for the global commons is pursued further in the Global Sustainability Programme section.
The UN Secretary-General
The role of the UN Secretary-General has been a major focus in studies on global governance. Among the most authoritative studies of this subject, there are the following:
- Secretary or General? The UN Secretary-General in world politics, S. Chesterman, Ed. (CUP, Cambridge; 2007)
- The UN Secretary-General and Secretariat, L. Gordenker (Routledge Global Institutions series; 2010)
The Responsibility to Protect
Probably the most important issue that highlights the relationship between global governance and national sovereignty concerns the right, and/or the responsibility, of the UN to intervene in an internal issue of a member state on grounds of civilian protection. In 2001, the International Commission on Intervention and State Sovereignty submitted its seminal report, The Responsibility to Protect. The Report effectively reformulated the meaning of state sovereignty for the modern age, contending that sovereignty entails not only state rights but state responsibility, especially the protection of its own citizens from major violations of human rights. If a state proves unable or unwilling to protect its own citizens in this respect, the responsibility to do so falls, in the second instance, to the international community, including the right to intervene with force under a UN Security Council mandate. The R2P doctrine has been endorsed by the UN General Assembly (World Summit Outcome Document, A/RES/60/1, Sept. 2005), and appears in certain Security Council decisions and resolutions. The Centre’s International Advisory Panel member, Prof Ramesh Thakur, who was a member and principal author of the 2001 report, has written several books on the topic;
- The Responsibility to Protect: Norms, laws and the use of force in international politics, Thakur (Routledge, London & NY; 2010)
- Reviewing the Responsibility to Protect: Origins, implementation and controversies, R. Thakur (Routledge, London; 2018)
The idea of responsibility to protect is explored further in the Global Security Programme section.
Many experts maintain that the ‘dilemma’ of global governance is rendered less challenging if the conceptual framework is re-focused on the more legal, and less political, concept of ‘multi-level jurisdiction’: the idea that legitimate governance is ensured so long as the scale of the institutional response is commensurate with the scale of the issue confronted. This idea rests on, among other concepts, the principle of subsidiarity. Studies on this subject include the following:
- Multi-level governance and European integration. G. Marks & L. Hooghe (Rowman & Littlefield, Lanham, MD: 2001)
- Unravelling the Central State, but How? Types of multi-level governance, Marks & L. Hooghe, American Pol. Sci. Rev. 97, no. 2 (2003), pp. 233–43.
- Multi-level governance, Bache & M. Flinders, eds. (OUP, Oxford; 2004)
Globalization is entirely different from the concept of ‘global governance’, but it does raise issues of governance of analysis and prescription. The effect of economic globalization on national sovereignty is also a major issue of debate. A useful reference, for New Zealand, is the following:
- Sovereignty under Siege? Globalization and New Zealand, Patman & C. Rudd, Eds. (Ashgate, Aldershot, UK & Burlington, US; 2005)
Closely related to ‘global governance’ is the concept of ‘world order’. Two authoritative academic studies on this subject are:
- Eunomia: New order for a new world, P. Allott (OUP, Oxford; 1990)
- A New World Order, A-M Slaughter (Princeton UP, NJ; 2004)
The concepts of global governance and world order are separate and distinct from the broader notion of ‘world government’ (or ‘world federalism’). The idea of world federalism dates back millennia in a theoretical sense, and several centuries in a structural sense (usually taken to commence with Kant’s Perpetual Peace, 1795). A spate of interest and activity among theoreticians and civil society occurred in the 1920s and ‘40s, coincident with official planning for the League of Nations and the UN. Modern studies include the following:
- World Federation? A critical analysis of federal world government, R. Glossop (McFarland, Jefferson, NC; 1993)
- The Idea of World Government: From ancient times to the 21st century, J. Yunker (2011);
Most, almost all, of the studies emerge from, and reflect, a Western liberal worldview. Few studies can be found emerging from China, Russia, the Arab world or Africa.
Global governance and ‘disruptive technology’
Many experts in both governmental and corporate worlds are warning that, in addition to the challenges confronting global security and global sustainability, the phenomenon of ‘disruptive technology’ is a third existential risk facing humanity in the 21st c. (see the Introductory section on Global Studies). As Harari notes: The revolutions in information technology and biotechnology are still in their infancy … the technological revolutions will gather momentum in the next few decades, and will confront humankind with the hardest trials we have ever encountered.” 21 Lessons for the 21st Century, Y. Harari (Jonathan cape, London; 2018), p. 17. The ability of the United Nations and its member states to handle this with due foresight, is very much an open question. A useful study on this issue is:
- Internet Governance: The new frontier of global institutions, J. Mathiason, Routledge Global Institutions series (2009);
All UN bodies are working to ensure that AI is properly handled. The two principal bodies have recently published studies on the subject:
- The International Telecommunications Union (ITU) has published a wide-ranging study on the subject, namely: United Nations Activities on Artificial intelligence (ITU, Geneva; 2018); and
- The World Intellectual Property Organization (WIPO) has recently published a study on the subject as part of its WIPO Technology Trends series. As the study observes: “… AI remains a challenging subject for many people: …. The technology is complex and wide-ranging, potentially affecting many different areas of human activity. And AI raises complex questions about privacy, trust and autonomy that are difficult to grapple with, and this has led to fears about humans themselves being under threat.” Artificial Intelligence (WIPO, Geneva; 2019)
The Centre’s Work
The Centre has been active in the area of global governance. It adopts no policy positions on the question of global governance (or global citizenship or law), other than encouraging rigorous research and reasoned debate on the subject; each Board member is entitled to advance personal judgement and opinion in their writing and presentations. Several of the Centre’s annual lectures have focused on this subject (see the Annual Lectures and Research sections for more detail):
- In March 2015, Prof. Ramesh Thakur (ANU, Canberra; former UN University vice-rector and former UN Assistant-Secretary-General) gave the Centre’s 2nd Annual Waiheke Lecture on the issue of UN Security Council Reform.
- In May 2016, former Prime Minister and Victoria law professor, Sir Geoffrey Palmer, gave the 3rd Annual Waiheke Lecture on the subject ‘Global Society and the Challenges of Governance’.
Global Governance: The three branches of government
Studies of global governance raise the question of the role of the legislative branch of governance in addition to the executive and judiciary. At present, the UN and Bretton Woods systems focus exclusively on the executive and judiciary. The legislative branch of governance is to be found separately in the form of the Inter-Parliamentary Union (IPU) in Geneva. A movement exists for a UN Parliamentary Assembly, and this has attracted some academic focus. Board chairman, Ass Prof Graham Hassall, has written on this in the 2017 Policy Quarterly:
- Reviewing Principles of Governance: branches of government at the global level, G. Hassall, Policy Quarterly 13 (1), Feb. 2017, pp. 15-19
Collaboration with Victoria University
The Centre has also worked with Victoria University in this area. In July 2016, the Centre convened a conference on the subject of the relationship between global citizenship and global constitutionalism.
We the Peoples: Global Citizenship and Constitutionalism July 22nd, 2016 Victoria University, Wellington.
Conference Powerpoints and Texts:
Dr. Kennedy Graham: Global Constitutionalism: a challenging concept
Rod Oram: Seeking Order – Towards Global Economic Governance
Kevin Clements: Universal Peace and Global Governance
The idea of ‘global law’, as a development of traditional, consent-based, international law, is a challenging subject in the early 21st century. The stress from the deteriorating global environment, the burgeoning global population, and widespread socio-political instability are causing inter-regional migration resulting in heightened nationalism and diminished universalism. This notwithstanding, the rational approach to inter-human relationships, including international political and diplomatic relations, requires a strengthened rule of law. Many of the young generation of leaders at the 73rd UN General Assembly in 2018, including the NZ Prime Minister, called for retention and indeed strengthening of the ‘multilateral rules-based order’. In the early 21st century, five levels of law might be discerned, namely:
- ‘Global law’ (or ‘supranational law’), involving issues of the global commons that transcend direct jurisdictional control by the nation-state. Traditional treaties cover the legal status and usage of these areas (Antarctic Treaty System, Outer Space Treaty, Law of the Sea Convention, Ozone Treaty and Climate Change Convention).
- ‘Transnational law’, involving issues of common concern to humankind as a single group, but covering actions that fall mainly (though not exclusively) in international relations among states and within areas of domestic jurisdiction: such as transnational crime, drugs trafficking, human trafficking, terrorism, health and human rights.
- ‘International law’, the traditional approach to legal relationships among sovereign nation-states, commencing in the 16th and culminating in the 20th century with the 1945 UN Charter (covering state responsibility for relations among states – inter alia, self-determination, the use of armed force, humanitarian law and trade law).
- ‘Domestic law’, national laws that are legislated and enforced within the domestic jurisdiction of the sovereign nation-state.
- ‘Individual law’, international criminal law, applying criminal liability to individuals including political leaders, for the (four) ‘crimes of gravest concern to humanity’ under the 1998 Rome Statute.
Yet the four levels of law identified above (excepting ‘domestic’ law) still rely on treaty-making among nation-states for codification of law, even though their application and their consequential impact extends beyond the traditional national interest. At present only customary international law goes some way to ameliorating this shortcoming. Apart from domestic law, the other levels of law reflect serious weaknesses in terms of legislative and enforcement capacity and effectiveness.
- Global Law is subject to far-reaching proposals for a fresh approach in both legislation and enforcement. (see Global Sustainability Programme section).
- Transnational law reflects issues of serious concern to the global community, but the legislative response remains subject to negotiation among nation-states through traditional treaty-making procedures.
- International Law remains subject to the International Court of Justice (with 193 Member States) and the right of a State to submit to a case or withhold recognition. There are three principal sources: treaties, custom and general principles. Judicial decisions and teachings may also be used as subsidiary means for the determination of rules of law.
- Individual law, through the International Criminal Court (with 123 Member States) also remains vulnerable to non-recognition, and to a complex relationship with both domestic courts and the UN Security Council.
The weaknesses of traditional international law render it inadequate for the 21st century, in particular:
- The near-exclusive reliance on treaty-making, involving some 200 sovereign entities, usually employing a consensus-based procedure;
- The option of acceding or not to most treaties, and subsequently withdrawing on grounds of national interest that is subjectively determined;
- The weak investigative, arrest, and prosecutorial powers that make enforcement power ineffective.
How the law can be conceived, drafted and codified, and observed and enforced, at the global level is the quintessential challenge for today’s international lawyers, diplomats and political leaders. Authoritative studies on the subject include the following:
- The Law of the United Nations, H. Kelsen (Praeger, New York; 1964 4th edition)
- The Changing Structure of International Law, W. Friedman (Columbia U.P.; 1966)
- World Peace through World Law, G. Clark & L. Sohn (Harvard UP, Boston; 1966 3rd ed.)
- United Nations Legal Order, O. Schachter & C. Joyner (CUP, New York; 1995)
- International Organizations as Lawmakers, J. Alvarez (OUP, New York; 2006)
- International Law, M. Evans, Ed. (Oxford U.P., Oxford; 2006)
- General Jurisprudence—Understanding Law from a Global Perspective, W. Twining, (CUP, Cambridge; 2009)
- International Judicial Institutions, R. Goldstone & A. Smith (Routledge, NY; 2009);
- Theorising the Global Legal Order, A. Halpin & V. Roeben, Eds. (Hart Publishing, Oxford; 2009)
- The Charter of the United Nations: A Commentary, B. Simma et al Eds. (OUP, Oxford; 2012 3rd edition)
- Legality and Legitimacy in Global Affairs, R. Falk et al, eds., (OUP, Oxford; 2012), pp. 45–71.
Legal concepts at the supranational level draw from three areas of thought: jurisdictional responsibility, customary law, and constitutionalism. Each is subject to active exploration within the academic and policy communities.
1. Jurisdictional responsibility and the ‘common interest’
The UN Charter is in the name of ‘We the Peoples of the United Nations’. Its preamble contends that armed force shall not be used ‘save in the common interest’, and Article 1 requires the Organization to be a centre for harmonizing the actions of nations in the attainment its ‘common ends’. Since then, juridical thought has increasingly engaged with the notion of the ‘common interest’ of humankind, specifically:
- The Antarctic Treaty (1959) refers to the ‘interest of all mankind’;
- The Outer Space Treaty (1967) regards the celestial bodies as the ‘province of all mankind’;
- The Law of the Sea Convention (1982) introduced the concept of the ‘common heritage of all mankind’; and
- The conventions on climate change and biodiversity (1992) each perceives its subject area as a ‘common concern of humankind’.
The challenge remains for UN member states to refine the positivist approach to treaty-making in a manner that faithfully responds to this higher interest.
2. Customary international law
The relationship of customary international law to global constitutionalism is a central focus of study in the development of global law. The ICJ Statute defines customary international law as ‘a general practice accepted as law’, deriving from either of two sources: the general practice of states and what states have accepted as law. There are two levels of customary international law: a custom that reaches the level of a ‘peremptory norm’ (ius cogens) and one that does not. Peremptory norms are of universal validity and are non-derogable. They are generally accepted as including prohibitions on slavery, torture, genocide, wars of aggression, and crimes against humanity. Such peremptory norms might be seen as a legitimate part of the contextual foundation of global constitutionalism. Much of international law including customary law, however, is regarded by some as unduly Western in origin and influence. Prof. Yasuaki Onuma, for example, has been critical of the role played by ‘traditional West-centric international law’ in the development of global law. As he put it: “ [I]mportant notions in the global constitutionalism and legal order, such as jus cogens, obligations erga omnes and hierarchy of norms in international law, all presuppose the notion of international law with universal validity. How and to what extent can norms of international law assert universal validity, transcending national, regional, cultural, religious and civilizational boundaries? How can they be realised in international society where power, interests and value judgements of its members are so diverse? These constitute crucial problems in the deliberation of global legal order in the 21st century.” Y. Onuma, A Trans-civilizational Perspective on Global Order in the 21st Century (In Macdonald & Johnston, p. 172). Useful articles on the subject, both supportive and critical, include:
- Custom, Power and the Power of Rules: Customary international law from an interdisciplinary perspective, M. Byers, Michigan 17(1) Jnl. of Int. Law (1995), p. 110
- The Precautionary Principle as a Norm of Customary International Law, O. McIntyre & T. Mosedale, 9 Jnl Envtl Law (1997), p. 221
- The Twilight of Customary International Law, J Patrick Kelly, 40 Va Jnl Int’l Law (1999), p. 449
- The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law, J.Lee, 25 Columbia Jnl. Envtl. Law (2000), p. 283
- Hidden anxieties: Customary international law in NZ, T. Dunworth, 2 NZJPIL (2004), p. 67
- The Rising Tide of Customary International Law: will New Zealand sink or swim? T. Dunworth, 15 Publ. Law Review (2004), p. 3.
- Customary International Law: A new theory with practical applications [book review], N. Baird, 8 NZ Yrbk. Int. Law (2010), p. 365
- The Responsibility to Protect Doctrine: Customary international law, an emerging legal norm, or just wishful thinking, P. Stockburger, 5 Intercultural Hum Rts Law Rev (2010), p. 365
- The Dominance of the ICJ in the Creation of Customary International Law, L. Chan, 6 Southampton Stud. Law Rev (2016), p. 44
3. Global constitutionalism
The concept of global (or world) constitutionalism has been a central focus of progressive thinking in international law, relating to the concept of global governance. This includes, but is not confined to, the question of the extent to which the UN Charter might be seen as an incipient version of such a constitutional document.
- Towards World Constitutionalism: Issues in the legal ordering of the world community (R. Macdonald & D. Johnston, Eds., (Martinus Nijhoff, Leiden; 2005)
- The Constitutionalization of International Law, J. Klabbers, G. Peters & G. Ulfstein (OUP, Oxford; 2009)
- Ruling the World: Constitutionalism, international law and global governance, J. Dunhoff & J. Trachtman, Eds. (CUP, Cambridge; 2009)
- The United Nations as the Constitution of the International Community, B. Fassbender (Martinus Nijhoff, Leiden; 2009)
- Globalization and Sovereignty: Rethinking legality, legitimacy, and constitutionalism, J. Cohen (CUP, Cambridge; 2012)
- The Future of International Law: Global government, J. Trachtman (CUP, Cambridge; 2013)
- Handbook on Global Constitutionalism, A. Lang & A. Wiener, Eds. (Elgar, Cheltenham; 2017)
Articles & chapters:
- The UN Charter as Constitution of the International Community, B. Fassbender, Columbia Jnl. of Transnational Law 36 (3) 1998, pp. 529-619
- Is the UN Charter a Constitution? T. Franck in Verhandeln fur den Frieden, J. Frowein et al, Eds. (Springer-Verlag, New York; 2003), pp. 110-19
- The UN Security Council as World Legislature, S. Talmon, American Jnl. of International Law 99 (1) 2005, pp. 175-93
- Dialectics of a global constitution: The struggle over the UN Charter, M. Doyle, European Jnl. of International Relations 18 (4) 2012, pp. 601-24
The Centre’s Work
The Centre has been active on many fronts in respect of the relationship between global governance and global law, in particular in two areas: the global commons and individual criminal law.
Global Law and the Commons
In the 2017 Special Edition of Policy Quarterly, Board members focused specifically on the manner in which contemporary law is striving to meet the challenges of the global commons. In particular:
- The Atmosphere: the Paris Agreement and global governance, A. Macey (Policy Quarterly 13 (1), Feb. 2017, pp. 26-31)
- The Oceans: the Law of the Sea Convention as a form of global governance, D. Currie (Policy Quarterly 13 (1), Feb. 2017, pp. 32-36)
Other comparable contributions can be found in the Global Sustainability section)
In 2022 the following new project has commenced: Antarctic Marine Resources
In May 2022, the Centre agreed to undertake a research project for ASOC (Antarctica & Southern Ocean Coalition) on the effectiveness of the Antarctic Treaty and its Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).
The project’s title is: Fit for Purpose? Political and legal aspects of global-regional marine conservation frameworks
The Project Managers for this project, expected to last from 1 June to 31 August, are two Board members, Dr Kennedy Graham and Dr Jeremy Webb, and a team of student researchers and experts providing background papers are working with them.
Centre affiliate and former board member Prof. Neil Boister, has earned international recognition in this area of work, in particular with his book:
- An Introduction to Transnational Criminal Law, Boister (OUP, Oxford, 2nd ed. 2018).
The book gives an introduction to the subject and then covers, in addition to the above issues, new challenges such as cyber-crime, wild-life and pollution offences and trafficking in cultural property. It also analyses new techniques of investigation, including surveillance.
Individual Criminal Law
The Centre has been especially active in exploring one aspect of international law in particular, namely, the accountability and liability of the human individual, particularly political leaders, in international law, rather than simply state responsibility. The establishment of the International Criminal Court, under the Rome Statute 1998, and its assumption of jurisdiction in 2002 over three of the four major crimes in the Statute, has been a matter of focus.
- Neil Boister completed a research report for the Centre in April 2016: Building Criminal Accountability at the Global Level: The historical experience of a small island state – New Zealand. This paper may be found in the Research section.
- Prof Chris Gallavin, former Dep. Pro-Vice Chancellor at Massey University, wrote his Ph D thesis on Prosecutorial Discretion in the International Criminal Court. His current thoughts on the ICC (Building Criminal Accountability at the Global Level: The ICC and its discontents) can be found in the 2017 Policy Quarterly’ Special Edition (pp. 50-65) referred to on the Home Page (co-authored with Dr Kennedy Graham).
The Crime of Aggression
The Centre has been especially active on the fourth crime under the Rome Statute, namely aggression (in manifest violation of the UN Charter) as an individual leadership crime. In July 2016, the Centre convened a symposium in the Beehive Theatrette at the NZ Parliament, collaborating with the International Law Association (NZ Branch). Advisory Panel member, Prof Roger Clark gave the keynote, with two respondents replying — Attorney-General Hon. Chris Finlayson and former Justice Minister Hon. David Parker. See below to listen to a recording of Prof Roger Clark’s lecture.
In July 2018, the Centre convened a seminar, at the Law Faculty of Victoria University of Wellington, to mark the entry-into-force of aggression as a crime under the Rome Statute.
In February 2020, the Centre’s Director lodged a submission to the Parliament’s Foreign Affairs Committee on the subject of ratification and domestic implementation of aggression as a domestic crime in NZ law. A Bill is currently before the House. The submission can be found in the Programmes Section (Global Law; The Centre’s Work).
Professor Roger Clark lecture:
“Making Aggression a Leadership Crime in 2017: The Rome Statute and the Kampala Amendment” at Parliament on 11 July 2016, at invitation of the New Zealand Centre for Global Studies.