The Pillars of Global Law

Giuliana Ziccardi Capaldo

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138376496
• eBook ISBN: 9781317021339
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book deals with the transformation of the international legal system into a new world order. Looking at concepts and principles, processes and emerging problems, it examines the impact of global forces on international law. In so doing, it identifies a unified set of legal rules and processes from the great variety of state practice and jurisprudence. The work develops a new framework to examine the key elements of the global legal system, termed the 'four pillars of global law': verticalization, legality, integration and collective guarantees. The study provides an in-depth analysis of the differences between traditional international law and the new principles and processes along which the universal society and world power are organized and how this is related to domestic power. The book addresses important changes in key legal issues; it reconstructs a complex legal framework, and the emergence of a new international order that has still not been studied in depth, providing a compass that will prove a useful resource for students, researchers and policy makers within the field of law and with an interest in international relations.

PART I Verticality and Sharing of the Decisional Processes

SECTION I Global Law-Making

Chapter 1 Dynamics of Global Rule-Formation Processes*

DOI: 10.4324/9781315554679-2

Introduction

Since the 1990s, several new rules of general international law have been added to international human rights law.¹ The fact that many of them came into being directly and instantaneously, by way of the immediate transformation of the will of the international community into law, without the need for custom (i.e., omisso medio), raises critical questions as to their ultimate nature. In particular, this begs reconsideration of the widespread notion that rules of general international law are almost exclusively customary international law norms. Both the International Court of Justice (ICJ)² and the overwhelming majority of scholars hold rules of general international law to be customary norms. ‘General principles of law recognized by civilized nations’ (Article 38 (1)(c) of the ICJ Statute) are also regarded by some authors as a sort of sui generis custom.³ Yet, what is more relevant here is that rules of general international law, which have emerged immediately, are subsumed under the so-called ‘instant custom’ rubric.⁴

The epochal events in the East at the end of the 1980s are at the basis of the current development of international human rights law. They swept away the previous anorganic structure of the international community based on antagonizing blocs, to give way to a process of ‘verticalization’ of the international legal order driven by the rekindling of the UN.

As will be illustrated in this chapter,⁵ the development of international human rights law experienced in the last two decades can be largely attributed to this process of verticalization. It was brought about by the ever-increasing role the UN and other international organizations play in the management of world power, including the creation, ascertainment, and enforcement of general international law. The development of substantive and procedural norms to guarantee the fundamental interests of the international community as a whole is the result of the increasing integration between the ‘organized community’ (i.e., the UN and other intergovernmental organizations) and the ‘substantive community’ (i.e., the states and other new international actors). This marks the dawn of the global governance era, which is characterized by deep changes to international law-making processes. This phenomenon started in the second half of the twentieth century and was accelerated by the demise of the bloc-based international structure, the reduction of the hegemony of superpowers, and the emergence of new dominant global agents.⁶

The Principle of Democratic Legitimacy: Changes During the 1990s

In the second half of the 1980s, the Soviet Union formally recognized the principle of democratic legitimacy, the first steps being the Geneva summit of November 1985 between Reagan and Gorbachev and the subsequent meetings between the two leaders (i.e., Washington summit of 7 December 1987; Moscow summit of 29 May 1988; and Malta summit of 2 December 1989). These events marked the onset of the profound transformation of the regimes of Eastern Europe.⁷

The end of the Cold War was the result of the radical transformation of the communist and socialist countries into liberal and market-based democracies, where individuals’ civil and political rights are constitutionally guaranteed.

The change of attitude of the former Soviet Union had an immediate impact on the content of international human rights law, substantially widening it. As it is known, during the Cold War, because of the opposition of the communist bloc, certain civil and political rights could not acquire the status of customary international law. Despite the attempts of Western countries within the UN and other international organizations (e.g., NATO, OAS, and CSCE), during that period the only rules in the field of international human rights law that could claim customary status were those banning gross violations, like torture, apartheid, and genocide.⁸

At the behest of Western countries, as of the early 1950s, the UN and certain regional organizations secured the conclusion of international agreements providing for the international guarantee of those human rights that were guaranteed by the promoters’ own constitutions (e.g., the 1966 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights; the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms; and the 1969 American Convention on Human Rights). However, until the early 1990s, this remarkable array of international agreements fell short of producing an equally remarkable guarantee of human rights at a general level. The opposition of the Eastern bloc, sternly defending domestic jurisdiction and sovereignty, prevented the enlargement of the notion of gross violations of human rights to include serious and systematic violations of civil and political rights, as proposed by the Western bloc.⁹

It is only with the acceptance by the Soviet Union of the principle of democracy, at the above-mentioned summits, that general international human rights law suddenly changed.

The Conference on Security and Cooperation in Europe, known today as the Organization for Security and Cooperation in Europe (OSCE), was the arena where the démarche taken by the two superpowers in Geneva was taken to the next level. Once ideological barriers between the two powers had been broken down, the Conference received a spur to place high on the agenda the promotion of human rights. The meetings of the CSCE held in Vienna from 1986 to 1989 paid much greater attention to human rights than the previous meetings held in Belgrade and Madrid (1980 and 1983). The subject of human rights, which from the beginning had been considered one of the essential areas covered in the Helsinki agreements, was prominent in the three meetings of the Conference on the Human Dimension (Paris in June 1989, Copenhagen in June 1990, and Moscow in September 1991). In a new climate of understanding and cooperation, the multitude of proposals, presented both by individual states or collectively, was gradually integrated, leading to fewer and more homogeneous submissions. The ideological division gradually disappeared as consensus grew over proposals underwritten by states of both blocs, with the exception of Rumania, which eventually remained completely isolated. The Copenhagen document (1990) not only restated basic freedoms and rights, such as the freedom of expression, the right of assembly and of association, freedom of thought, of conscience, of religion, and the right of every individual to leave his or her country. It also ensured their implementation by introducing control mechanisms and procedures (i.e., the Human Dimension Mechanism), and by acknowledging that they are the ‘foundations of the rule of law and of the principle of pluralistic democracy’.¹⁰

Once the basic rules aimed at the creation of a ‘European public order’ had been agreed upon, the CSCE states, during the Moscow meeting of 1991, made wider and bolder statements of principle. The remarkable acceleration of the process of democratization of Central and Eastern Europe evidently gave the impetus. Hence, in the Moscow meeting’s final document, participating states emphasized that ‘issues relating to human rights, fundamental freedoms, democracy and the rule of law are of international concern, as respect for these rights and freedoms constitutes one of the foundations of the international order’.¹¹

Parallel to the CSCE’s work, coordinated action was being taken by the then 12 members of the European Communities¹² and by the members of NATO.¹³ Links were established between the promotion of the human dimension of the CSCE and the protection of human rights in the Council of Europe.¹⁴ Meanwhile, at the UN, the idea of democracy based on human rights and fundamental freedoms was being discussed in depth.¹⁵

In hindsight, those landmark events are the source of the principle of democracy as a norm of general international law.¹⁶ It should be stressed that, currently, states conceive ‘democracy’ as fundamentally unique in its guiding principles.¹⁷ In actuality, the template is the Western democracy model, where both political freedoms (e.g., free and secret elections, multi-party systems) and civil liberties (e.g., expressions of the individual personality, such as freedom of thought, of speech, and of association) are guaranteed.

At the international level, the instantaneous creation of the principle of democratic legitimacy was limited to certain political freedoms like the exercise of free and secret universal suffrage, and the freedom to form political parties. Evidence of this can be found, besides the statements of political leaders throughout the world, in the adoption of multi-party systems and the incorporation of the principle of pluralistic democracy in the constitutions of former socialist countries, as well as in the strengthening of democratic regimes between 1989 and 1990 in many Latin American countries. Moreover, all the most developed countries of Africa, Asia, and the Pacific have since adopted, or are in the process of adopting, constitutional systems based on the democratic paradigm. Since 1991, free elections with universal suffrage have taken place in the great majority of states.

Scholars consider the global democratic revolution as the most significant development of the end of the twentieth century.¹⁸ This is also the opinion of the UN General Assembly, which regards democracy as a universally recognized value to be protected by the UN, with assistance aimed at supporting and strengthening new or restored democracies.¹⁹ Internationally, respect for political freedoms is assured by direct UN supervision of elections,²⁰ by pressuring non-democratic states,²¹ and by firmly demanding respect for the freely expressed popular will.²²

However, the definition and guarantee of civil freedoms, which is a constituent element of contemporary democratic governments, took longer to turn into a norm of general international law, although the constitutions of some Eastern European states referred to the rights listed in the 1948 Universal Declaration of Human Rights or in the 1966 UN Covenants.²³

Although most modern constitutions contain lists of fundamental civil rights, they are of varying length and detail, changing from country to country. There is not yet a universally accepted catalogue of such rights.²⁴ The problems experienced by the Human Rights Committee (now Council), which monitored compliance with the 1966 Covenant on Civil and Political Rights, are particularly significant in this regard.²⁵ Although the Committee stepped up its activities as of the 1980s, states have proven to be reluctant to modify their domestic laws to conform to the provisions of the Covenant and to set up mechanisms, at a national level, that would make the rights recognized in the Covenant justicia...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• List of Abbreviations
• International Law Journals
• Introduction: The Four Pillars of Global Law: Verticality, Legality, Integration, and Collective Guarantees
• PART I: Verticality and Sharing of the Decisional Processes
• PART II: Legality Principles and Common Global Values
• PART III: Integration of Legal Systems in the Direction of Global Law
• PART IV: Collective Guarantees: An Embryonic New System
• Conclusions
• Tables
• Bibliography
• Index of Case Law
• Documents
• Analytical Index