Post-Cold War International Law

GRAD PLANNING CONFERENCE

DEMOCRATIZATION IN THE CONTEXT OF GLOBAL AND REGIONAL CONFLICTS

Working Group # 1:

Human Security, Governance, and Rule of Law

Convener: Keyvan Tabari

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 Suggested Plan for Discussion

Note: In your review of this Suggested Plan please note that (a) this is a draft for discussions and not a definitive statement of my views, (b) it is a rough and embryonic text that needs to go through many phases before it even submits postulates, (c) to the extent that it says something original (and it does, and that is its merit, if any), unavoidably it is controversial, and (d) it aims to provoke not to convert.

Introduction 

These introductory comments aim at explicating the outline for discussion that follows.

 The purpose of this meeting is to form a working group (Group) that could undertake one aspect of the GRAD project on “Democratization in the Context of Global and Regional Conflicts.” That aspect is “Human Security, Governance, and Rule of Law.” In light of the assignments of the other working groups, the emphasis here would be on the Rule of Law in the context of, inter alia, human security and governance.

 This plan suggests a course of discussion premised on the assumption that a system of global rule of law is emerging which is distinct from the traditional international law and various systems of domestic law. The jurisprudence of this new system is dictated by the new realities born out of remarkable recent changes in international relations. The implosion of the Soviet Union has cleared the way for the universal and comprehensive dominance of the United States in an unprecedented fashion. It might be argued (subject to acceptance by this working group) that, especially under President George W. Bush’s administration, the U.S. perceives its ideology of free market and democracy as unchallenged in a world that has become increasingly dependent on its economy as a result of globalization, while smart weapons have made it virtually immune to even its domestic critics of foreign policies, as American casualties are kept negligible. The tempting prescriptions that have been intoned provoke the metaphor of a global empire, “democratic” only in being accountable to the American electorate, and ruling with the help of anointed “satraps”.

It appears that the United States would like the world to be managed by what may be called the Global Rule of Law (henceforth used here as a term of art). Many from other countries disagree with that desire. The areas of contention are widespread: environmental law (e.g., balancing consumer’s rights and the protection of the common heritage), economic regulations (e.g., conditions of assistance from the World Bank and the International Monetary Fund, regimes of sanctions, and prerequisites to participation in the World Trade Organization), definition of international crimes (e.g., terrorism), modality of dispute resolution and global courts (e.g., asymmetrical jurisdiction and burden of proof), the rules of warfare (e.g., the definitions of self‑defense and just war, application of the Geneva Convention, and proliferation/right to weapons of mass destruction), reforming existing domestic legal systems ( e.g., compatible legislation, independent judiciary, and the principle of judicial review), human rights (e.g., extent and scope of “inalienable/natural,” political, civil, economic/social, and displaced persons’ rights), to name the major ones. At the core of the disagreement, the issue is joined on the changing nature of sovereignty and its implications for both international/global relations and the rule of law. The novelty of the Global Rule of Law is in the fact that unlike international law it denies equality among nation‑states, and unlike a modern (consensual) domestic legal system it rejects subjection of the ruler to the law ordained by the ruled.

 The tasks of this working group should begin by enumerating the “elements” of the Global Rule of Law. In thus defining the subject, its contrasts as well as similarities with the traditional legal systems should be discernable. The common jurisprudence should delineate, further, the borders with other global rules of conduct, such as the protocols of civility, commands of faith, and standards of morality. In recognition of the organic basis for any legal system, the salient characteristics of the global relations that provide the context for the present and future viability of these new laws must be reviewed.

 The goal is first to assess realistically and objectively what obtains today as the Global Rule of Law, and its critique. The normative consideration and articulation of alternatives would come next; and in that exercise, to be productive, those concerned should aim their dialogue toward a desired consensus that would hold the promise of persuading a wide and empowered enough constituency, including disparate segments of the global civil society. It might also be noted that inasmuch as American jurisprudence dominates, the naked truth of its adversarial system is that the meek or the weak will not shape the law. Politics of self‑abnegation, victimhood, or reckless defiance will none be consequential; and compassion will have an impact only as a means of soothing the inequality in order to ensure stability.

 The merits of this project lie in its timeliness. The rate of change has made past efforts obsolete, and a contemporary forum for collaborative interaction of the qualified from diverse perspectives could be justifiably beneficial.

 The logistical issues in carrying out this program are several. The dialogue among the participants in the Group could be primarily conducted in the electronic forum, using email as the medium of the exchange; when appropriate, the more traditional forums, specially conferences, would also be used. The Internet provides access to participants from many countries with incomparable ease and speed. Technical and management assistance would facilitate such essential tasks as defining discussion themes, building agendas, designing time‑lines for specific discussion strands, creating a research and reference archive for each theme, identifying and contacting targeted participants, providing ongoing encouragement for the members of the Group to participate, summarizing the key points of a discussion, formulating practical policy recommendations, and setting up the talking points for a call to action for each theme. In addition, a service is available to deliver customized information that participants specify, digitally clipped from a collection of selected web sites, to help participants add context to the ongoing discussions.

 The Group should appoint a rapporteur to manage the project, with specific tasks that include facilitating the exchange, and moderating and compiling submitted “views,” and preparing periodical reports (“Report(s)”) on the results.

 Progress of the project should be measured by milestones. The first milestone could be the first Report by the rapporteur in a year to be reviewed at the next conference of the Group. These Reports would include studies and policy recommendations. The initial term of the project could be three years. The free modality of dialogic discourse needs the balancing discipline of the Group’s commitment to specific scheduled outputs. As a repository of contributions by expert representatives of many legal cultures and experiences, the Reports could be the fount of books, articles, position papers to be used in teaching, advocacy, and policy formulation. Depending on the provision of the logistics, this conference should determine the outputs above the minimum of a publishable multi‑authored book a year.

 This meeting should establish a realistic estimate of the costs of the project, and specify admissible items of expenses. Equally important, the sources of funding should be determined. At present, there is no firm promise of any financial support. The Group should strive to obtain at this conference an adequate amount of “seed money” and pledges sustaining a viable budget.

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 Outline

I. Definition of the subject

 A) The basic elements of the “rule of law” 

 B) Global Rule of Law, and its relationship to International Law and Domestic Laws

 II. Context: from “international relations” to global relations

  A) Collapse of the communist empire leaving a sole and assertive superpower 

 B) Globalization of the market economy causing heightened interdependencies

 C) Technological revolutions in

  1) Communications: inducing democratic aspirations

  2) Warfare; smart weapons and unilateralism

 D) Anti‑terrorism: imperatives of security

 III. Goals of the project

 A) Taking stock: realistic assessment of the present

 B) Dialogue of the concerned: consensus in persuasive hopes for the future

 IV. Logistics

 A) Forum 

  1) Electronic platform

  2) Conferences

 B) Management 

  1) Facilitating the collaborative dialogue

  2) Reporting

 C) Funding 

  1) Estimate of costs

  2) Resources

 D) Measuring progress: milestones (publications, conferences, policy recommendations)_________________________________________________________________________________________

This article is a 2002 proposal for a working group to study the emergence of a “system of global rule of law” which is distinct from the traditional international law and various systems of domestic law. The working group was convened by Keyvan Tabari in March 2002 at the University of Oxford, England, under the auspices of the Toda Institute.

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