The Judicial System
The heart of a judicial component of a governance system is what happens when a person or an institution acts in violation of an agreed law, regulation, or rule; when two parties differ over how to carry out an agreement; and what special steps need to be taken to get discretionary state approval. In common law terms, a judicial system normally has a criminal justice component, a civil law component and an administrative law component. To implement these functions at the national level, a system of courts, judges, lawyers, and juries examines the facts, interpret the legal standards, and make judgments. The outcome of a judicial system is generally backed up by the policing power of the nation-state.
When the UN was established, the post-WWII victorious states knew that they needed an institution that could compel actions when other states chose to threaten or act militarily against another state. In the United Nations Charter, the Security Council’s decisions are the only ones that are obligatory on all member states. 1
Today, a global governance system needs a set of institutional arrangements to manage a wider array of conflicts. These conflicts range from economic conflicts over land and water to commercial conflicts over genetic resources and from environmental disputes to human rights challenges.
This section identifies the key elements of the formal intergovernmental juridical system and its complementary de facto system, largely within the corporate sphere. It then summarizes the changes that GRI recommends for the rule of international law and concludes with a brief list of global rule of law matters that were not discussed in the GRI report.
The official judicial functions of the current international system can be seen as having:
- A formal court system for states (International Court of Justice);
- A formal international criminal court for very serious human rights crimes (International Criminal Court);
- A state-created court to address trade disputes between countries (WTO Dispute Settlement Body);
- A commercial and travel sanctioning system operated by the UN (Security Council and the Counter Terrorism Committee); and
- A series of convention-sanction systems operating by the conference of parties to a limited number of conventions (e.g. the trade sanction provisions in the Montreal Protocol and in CITES, the endangered species convention).
The de facto juridical system consists principally of:
- A series of arbitration courts to address disputes among businesses and between businesses and nation-states (e.g. World Bank hosted arbitration panels; The International Chamber of Commerce hosted mediation and arbitration panels, and the Hague arbitration court; and
- A system of restrictions operated by key financial institutions and multinational corporations to restrict the flow of capital to non-approved firms, countries, or investors.
There are many different types of civil society institutions involved in quasi-judicial international functions. These include:
- A consortium of civil society organizations that orchestrate boycotts and disinvestment campaigns against objectionable state actions (e.g. boycotts and disinvestment campaigns involving South Africa, Burma, and Israel);
- Civil society organizations that ‘target’ misbehaving multinational corporations or industrial sectors with commercial market penalties (e.g. Nestle infant formula boycott; Greenpeace’s anti-whaling campaign, and campaigns against nuclear power);
- Civil society organizations that sanction through adverse publicity those governments which deny their citizens basic human rights (e.g. Amnesty International, Human Rights Watch); and
- A series of civil society, academic bodies, and media institutions which host public hearings and focus public opprobrium and market penalties on a specific corporate practices (e.g. Jubilee campaign on unpayable debts of developing countries)
This section continues with Options for the Future.