International Order & Conflict
Strengthening the Rules-Based Global Order: The Case for an International Rule of Law Package
UN75 Global Governance Innovation Perspectives
An international rule of law reform package to reinforce multilateralism and enhance global governance capabilities
A key strategic measure of the international community needed over the next decade is the enhancement of the international rule of law in order to reinforce multilateralism and enhance global governance capabilities. A project to significantly upgrade the existing international legal architecture should be launched upon the occasion of the UN’s 75th anniversary, making good on core UN Charter and related international commitments. In this paper, we propose an ambitious, yet realizable “International Rule of Law Package” of reforms meant to significantly enhance the integrity of the international governance system.
A key strategic measure of the international community needed over the next decade is the enhancement of the international rule of law in order to reinforce multilateralism and enhance global governance capabilities. A project to significantly upgrade the existing international legal architecture should be launched upon the occasion of the UN’s 75th anniversary, making good on core UN Charter and related international commitments. In this paper, we propose an ambitious, yet realizable “International Rule of Law Package” of reforms meant to significantly enhance the integrity of the international governance system. Key international justice institutions—the International Court of Justice, the International Criminal Court, and the UN’s Human Rights architecture—should be strengthened in terms of both their jurisdiction and effectiveness. In addition, the UN75 anniversary represents an opportunity to pave the way for new institutions to fill existing institutional gaps. Hence, we support the creation of an international anti-corruption court as well as an international judicial training institute to ensure the requisite capacity, skills, and knowledge across international courts. The international community, on this historic occasion, should begin focused discussion on such an international rule of law reform package with the goal of modernizing and making more robust and legitimate the core international governance architecture, fitting it to the range of global challenges it now confronts.
A Priority Theme for UN75: Making Good on the International Community’s Commitment to the Rule of Law
[T]he cardinal feature of the Dumbarton Oaks Proposals is peaceful settlement of disputes… The maintenance of law and order among nations must not be pursued with less vigilance than the maintenance of law and order within nations if peace is to be assured. — Green H. Hackworth (1945), longest-serving Legal Adviser to the US Department of State, key architect of post-WWII order and the Statute of the International Court of Justice, first U.S. Judge on the International Court of Justice.1Hackworth, Green H. The Department of State Bulletin. Office of Public Communication Bureau of Public Affairs. 1945. Accessed August 12, 2020. https://play.google.com/store/books/details?id=0FNf0ffjiPQC&rdid=book-0FNf0ffjiPQC&rdot=1.
Countries, big or small, strong or weak, rich or poor, are all equal members of the international community. As such, they are entitled to participate in decision-making, enjoy rights and fulfill obligations on an equal basis. … We should adhere to multilateralism to uphold the authority and efficacy of multilateral institutions. We should honor promises and abide by rules. One should not select or bend rules as he sees fit.
—Xi Jinping (2017), President of the People’s Republic of China, keynote speech at the World Economic Forum in Davos, Switzerland.2The State Council Information Office of the People’s Republic of China. “Full Text: Xi Jinping’s keynote speech at the World Economic Forum in 2017.” April 6, 2017. Accessed August 12, 2020. http://www.china.org.cn/node_7247529/content_40569136.htm.
The affirmation of the value of a rules-based international order, including by the world’s most powerful countries, has been reiterated more recently by International Heads of State and Foreign Ministers through the Alliance for Multilateralism3Alliance for Multilateralism. “Alliance for Multilateralism.” Accessed August 12, 2020. https://multilateralism.org/; Atlantic Council. “D-10 Strategy Officials Meet in Berlin to Advance a Ruled-Based Order.” May 30, 2019. Accessed August 12, 2020. https://www.atlanticcouncil.org/news/press-releases/d-10-strategy-officials-meet-in-berlin-to-advance-a-rules-based-order/. and otherwise.4Laya, Arancha González. “As we fight the pandemic, it’s clear the world wasn’t ready. Here’s how to fix that.” Washington Post, March 25, 2020. Accessed August 12, 2020. https://www.washingtonpost.com/opinions/2020/03/25/we-fight-pandemic-its-clear-world-wasnt-ready-heres-how-fix-that/. As the international community confronts a range of intensifying global challenges, this urgent call to deepen a shared commitment to multilateralism and international rules-based cooperation has been echoed by numerous well-known former statesmen and women.5Gorbachev, Mikhail. “Mikhail Gorbachev: When the Pandemic is Over, the World Must Come Together.” Time, April 15, 2020. Accessed August 12, 2020. https://time.com/5820669/mikhail-gorbachev-coronavirus-human-security/; Ki Moon, Ban. “I Was the Secretary-General of the U.N. Here’s how the Coronavirus Can Bring the World Together.” Time, April 16, 2020. Accessed August 12, 2020. https://time.com/collection/finding-hope-coronavirus-pandemic/5820650/ban-ki-moon-global-relations-coronavirus/; Elliot, Larry. “Gordon Brown calls for global government to tackle coronavirus.” The Guardian, March 26, 2020. Accessed August 12, 2020. https://www.theguardian.com/politics/2020/mar/26/gordon-brown-calls-for-global-government-to-tackle-coronavirus?CMP=Share_iOSApp_Other; Albright Madeleine. “Madeleine Albright: Coronavirus Should be a Wake-up Call for World Leaders to Work Together.” Time, March 20, 2020. Accessed August 12, 2020. https://time.com/5807169/madeleine-albright-coronavirus-cooperation/; Power, Samantha. “Samantha Power: How the COVID-19 Era Will Change National Security Forever.” Time, April 14, 2020. Accessed August 12, 2020. https://time.com/5820625/national-security-coronavirus-samantha-power/; Kissinger, Henry A. “The Coronavirus Pandemic Will Forever Alter the World Order.” Wall Street Journal, April 3, 2020. Accessed August 12, 2020. https://www.wsj.com/articles/the-coronavirus-pandemic-will-forever-alter-the-world-order-11585953005. The co-facilitators of the intergovernmental declaration of the United Nations (UN) General Assembly for its declaration upon the 75th anniversary of the UN, indeed, noted the need “to strengthen multilateralism and reinvigorate the functioning of global governance”6Permanent Missions of Qatar and Sweden to the United Nations. “‘Food for thought’-paper for the UN75 Declaration.” Attached to a letter of February 7, 2020. Accessed August, 29 2020. https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/02/UN75-First-consultation-invitation-21-Feb-2020-Letter-from-the-co-facilitators.pdf. as well as to “strengthen governance and collective action across borders in light of ongoing and new challenges (e.g. through pacific settlement of disputes; … upholding international law and human rights; strengthening international institutions and regional arrangements).”7Permanent Missions of Qatar and Sweden to the United Nations. “‘Food for thought’-paper for the UN75 Declaration.”
Within this call, strengthening the international rule of law should form a cornerstone of discussions launched on the occasion of the 75th anniversary of the United Nations. Like-minded states and their supporters should put an “International Rule of Law Package” at the center of the international community’s agenda as a main plank for bolstering multilateralism and reinvigorating the functioning of global governance. We argue that a better functioning international justice system is a key to an inclusive, responsive, and effective world body, fit for the challenges and the opportunities of the 21st century. A more predictable, rules-based international order would unlock new potentials for further global economic and social development, more meaningful protection of human rights, protection of the environment, and greatly enhanced peaceful settlement of disputes, among a myriad of other crucial goals.8See, for example, the range of policy areas within which the UN is currently active, where the rule of law is a key component: United Nations and the Rule of Law. “United Nations and the Rule of Law.” Accessed August 12, 2020. https://www.un.org/ruleoflaw/. Most elements of this proposed package can be realized in the years following 2020 without having to overcome near-impossible legal or political hurdles, such as amending the UN Charter.
With the adoption of the UN Charter in 1945, a compelling new international legal regime was established for the world community, underpinned by a clear commitment to the conduct of international affairs in conformity with international law and to the obligatory peaceful settlement of international disputes. There is today an overwhelming commitment to the rules-based order established in 1945; United Nations membership has grown from 51 Members to 193 Members today, embracing virtually all nations and peoples of the world.
Essentially all nations of the world have already committed to the principle of the rule of law at the national and international levels through numerous statements and instruments elaborated under the auspices of the UN, as well as under the UN Charter itself. Strengthening the international rule of law through a sensible reform package would, indeed, make good on Goal 16 of the 2030 Sustainable Development Agenda, the 2005 World Summit Outcome document,9United Nations. General Assembly. Resolution Adopted by the General Assembly on 16 September 2005…60/1. 2005 World Summit Outcome. A/RES/60/1. October 24, 2005. other recent high-level UN statements and reports, as well as the vision of the Charter itself on the progressive development of international law. It is now time to take the next practical steps to further this shared commitment, in the service of mutual, global well-being.
Developments and Challenges
International commentators and contemporary leaders have observed ongoing geostrategic tensions as well as shifting global power relationships, breeding uncertainty and potential instability in the global system. One think tank has noted of the current international landscape that:
Beyond tensions between dyads of rivals or within specific geographic zones, there is a bigger picture of shifting geopolitical and geostrategic relationships and power dynamics. Neither the bipolar global model of the cold war era nor the unipolar model following its end is useful for explaining what is happening now. While it is clear that change is under way, it is not clear what the outcome will be.10SIPRI. SIPRI Yearbook 2018 Armaments, Disarmament and International Security Summary. 2018. Accessed August 12, 2020. https://www.sipri.org/sites/default/files/2018-06/yb_18_summary_en_0.pdf.
Given such uncertainty, the time is opportune to reaffirm key international norms, the rules-based international order, and to take the next positive steps to strengthen this order.11See also, for example, proposals for a substantial and comprehensive upgrade of the global governance system in the interests of a more durable and long-term international stability and security, set out in Lopez-Claros, Augusto, Arthur Dahl, and Maja Groff. Global Governance and the Emergence of Global Institutions for the 21st Century. Cambridge: Cambridge University Press, 2020. The current rules-based order is exposed to severe pressures. According to the French and German Foreign Ministers, the “multilateral order is experiencing its perhaps gravest crisis since its emergence after the Second World War.”12Maas, Heiko and Jean-Yves Le Drian. “Who, if not us?” February 15, 2019. Accessed August 12, 2020. https://www.diplomatie.gouv.fr/en/country-files/germany/events/article/who-if-not-us-15-02-19. According to their outlook, “it can no longer be taken for granted that an international rules-based system is seen by all as the best guarantor of our security and prosperity.”13Maas and Le Drian, “Who, if not us?” The fate of the Appellate Body, the highest dispute settlement organ of the World Trade Organization (WTO), is a cautionary tale in this regard. It was rendered dysfunctional in December 2019 by the persistent refusal of the U.S. government to appoint new members. At the same time, the International Criminal Court (ICC) continues to face harsh criticisms from the United States and some non-Western countries—though a mass exodus from the Rome Statute, spearheaded by the African Union (AU), has not occurred.
The rules-based framework that the UN Charter set out seventy-five years ago is clear. The Charter’s preamble notes that it seeks “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” The core purposes and principles of the United Nations are: “To maintain international peace and security, and to that end: […] to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace” (Article 1, paragraph 1); and, that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” (Article 2, paragraph 3)
In the seventy-five-year history of the United Nations, there have undoubtedly been many significant accomplishments stimulated by the framework of the Charter related to the rule of law and to the progressive development of international law. The UN International Law Commission’s work spans a plethora of topics important to the international community, and numerous multilateral treaties have been adopted under the auspices of the UN and related bodies. The international community has also adopted a range of progressively evolving governance regimes where stronger and more effective dispute settlement along with monitoring and enforcement mechanisms have been incorporated. Examples include the UN Convention on the Law of the Sea (UNCLOS), the World Trade Organization (WTO), or the Organization for the Prohibition of Chemical Weapons (OPCW), among others. The International Criminal Court (ICC) and various ad hoc or hybrid international criminal tribunals, whether established by the UN Security Council, by treaty, or otherwise, have shown the international community’s capacity for innovation in the international justice sector, as well as vision and persistence in complex circumstances. The International Court of Justice (ICJ), like the Permanent Court of Arbitration (PCA), has seen steady and increasing caseloads for the resolution of important international disputes, with states from every region of the world seeking recourse at these and other international dispute resolution venues. There is widespread acceptance of international dispute settlement by a critical mass of nations, and all of the core international legal institutions should keep pace with these developments.
However, while there have been significant developments in international law and international dispute resolution, such developments have been haphazard and uneven. For example, while scholars note the valuable and prolific norm-setting efforts of the international community since 1945, they also point to a lack of serious and systematic attention to implementation and enforcement across the international legal system. For example, it is argued that the “lack of adequate implementation of international human rights agreements is one of biggest scandals of our time.”14Prof. Shekhar Saxena’s cover endorsement of Rubin, Neal S. and Roseanne L. Flores, eds. The Cambridge Handbook of Psychology and Human Rights. Cambridge: Cambridge University Press, forthcoming 2020. As a vision of a renewed global governance system, the international community must lift standards in relation to the rule of law and to existing international legal commitments in order to be considered as credible and legitimate, with the rule of law at the core of the international community’s practice.
It is a basic principle of rule of law systems that there should be no “double standards” in the application of laws—international law should be applicable to all and the binding nature of international obligations should find more expression in practice. The concept of global “hegemons” does not have a place in a contemporary international system; such a notion is anachronistic and inappropriate in a modern international order. The current “multipolar” uncertainty should be an invitation to establish a yet more ordered collective life, as well as to affirm and redouble a commitment to the core principles of the Charter.
Despite the progress made in the last seventy-five years, core international legal institutions, legal architectures, and approaches to the international rule of law are, in general, out of date and often not up to the global challenges that the international community is now confronting. Therefore, we argue that a modernizing “International Rule of Law Package” should be prioritized on the post-UN75 agenda, with 2020 taken as a starting point—or “launch pad”—to establish a mechanism, such as a High Level Panel, by which to consult and work on this topic with a wide range of experts possessing of both vision and practicality. The goal should be to design the next generation of international legal institutions, re-doubling and confirming the international community’s commitment to the rules-based international order. Below we suggest specific reforms for some of the world’s central justice institutions. Moreover, we support the creation of two new organs—an international anti-corruption court and an International Judicial Training Institute.
Strengthening the International Court of Justice
Despite a diverse and varied caseload of significant legal matters brought before the International Court of Justice (ICJ) throughout its over seven decades of operation—many involving complex and sensitive matters of international, regional, and national concern—basic ICJ reform has to date been largely overlooked. This is, among other reasons, because the ICJ Statute is annexed to the UN Charter. There exist a range of sensible, practical reform suggestions to draw from, proposed by international judges, former heads of state, academics, bar association or professional study groups, and others, which include, for example: expanding powers for various actors to request advisory opinions; procedural reforms to modernize the court; mechanisms for meaningful enforcement supervision of decisions of the court; the possibility of expanding standing at the court and the submission of amicus briefs to include actors beyond states; enhancing judicial independence and appointment procedures; and, generally increasing funding and technical support for the court.T15he pathways to various desired reforms and enhancements of the ICJ should be the subject of study by expert groups, including near-term reforms which could be accomplished without amendment to the Statute of the ICJ, or those which may require specific, focused amendments in the medium term, to a thorough review of the Statute in the longer term.
As of the writing of this brief, seventy-four states have made a declaration to accept the compulsory jurisdiction of the ICJ, which includes only one permanent member of the UN Security Council (see Figure 1). The international community should now take the next step in the court’s evolution. The ICJ should be reformed, and over time become a mandatory universal court, such that all UN members are subject to its compulsory jurisdiction, as argued by various states at original Charter negotiations.16International Court of Justice. “Declarations recognizing the jurisdiction of the Court as compulsory. Australia.” Last modified March 22, 2020. Accessed August 12, 2020. https://www.icj-cij.org/en/declarations/au.
Such enhancements of the ICJ should also be put in the context of longer-term reforms to fundamentally strengthen Chapter VI of the UN Charter on “Pacific Settlement of Disputes” as a fundamental mechanism for international stability and a too often overlooked “cardinal feature” of the Charter.17Hackworth, The Department of State Bulletin, and see Claros. “Strengthening the International Rule of Law,” 208–36.
Figure 1: Map highlighting countries that accept the ICJ’s compulsory jurisdiction under the “Optional Clause”
Strengthening the International Criminal Court
The ICC remains a beleaguered institution. The Philippines and Burundi have withdrawn from the Rome Statute. Universality remains an ambition as Asian countries remain underrepresented at the ICC (China, India, Indonesia, Pakistan, Nepal, Vietnam, and Myanmar, among others, are not parties to the Rome Statute). Renewed U.S. opposition to the ICC continues to threaten the Court’s operation, including its independence.18UN News. “US sanctions against international court staff a direct attack on judicial independence” June 25, 2020. Accessed August 12, 2020. https://news.un.org/en/story/2020/06/1067142. Enforcement of the ICC’s arrest warrants and judgments remains difficult under these challenging circumstances.
At the same time, the ICC continues to discharge its mandate. At the time of writing, it is conducting twenty-two ongoing and preliminary investigations on four continents, with twelve cases at pre-trial and seven ongoing cases (of which two are on appeal).19International Criminal Court. “Situations and cases.” Accessed August 31, 2020. https://www.icc-cpi.int/Pages/cases.aspx#. Moreover, contentious issues such as head of state immunity have been clarified by the court20See Mudukuti, Angela. “Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal.” American Journal of International Law 114, no. 1 (2020): 103–09. —after which opposition by AU countries faded—and the Assembly of States Parties (ASP) agreed on a reform to prosecute starvation in non-international armed conflicts as a war crime21Previously, starvation was already recognized as a war crime in international armed conflicts. Swiss Federal Government. “Swiss initiative: intentional starvation of civilians in civil wars is now a war crime.” December 6, 2019. Accessed August 31, 2020. https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-77442.html. and has elected a new prosecutor.
In order to strengthen the ICC’s reach and effectiveness, we propose a set of three reforms. Firstly, a comprehensive study should be undertaken to gain a better understanding of the reluctance of states around the world (not just the P5) to join the Rome Statute, so that their concerns can be taken into account in efforts to expand the ICC’s jurisdiction.
Secondly, the ASP should adopt a protocol—or, alternatively, a code of conduct—that outlines factors that could guide the UN Security Council when it deliberates on the referral of a situation to the ICC. The Accountability, Coherence and Transparency (ACT) and French-Mexican initiatives for a (voluntary) code of conduct on the use of veto powers at the Security Council, each of which is supported by more than a hundred countries, can serve as a template.
Thirdly, the enforcement of ICC arrest warrants and judgments should be strengthened at different levels. Cooperation through regional organizations to execute ICC arrest warrants should be reinforced, drawing on instruments such as the European Arrest Warrant. In addition, in analogy with “nuclear weapons free zones” that already exist in different parts of the world, regional organizations and forums could declare “impunity free zones” and commit to jointly give effect to ICC arrest warrants. At the international level, building on the abovementioned protocol or code of conduct, the UN Security Council should convene a specialized committee to better support ICC action against perpetrators, including on how to support states and regional organizations in enforcing ICC arrest warrants.
Upgrading the International Human Rights Architecture
Upon the occasion of the UN’s 75th Anniversary, the international community should, in the words of the preamble of the UN Charter, “re-affirming faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women,” put centrally on its agenda a substantial reform and enhancement of its current human rights architecture. Laudable reform efforts have taken place in the past, catalyzed in particular by the 1993 Vienna Conference, in 2006 with the reform of the Human Rights Commission to the Human Rights Council and the UN Secretary-General’s Human Rights Up Front initiative launched in 2013. However, these initiatives have fallen short of keeping pace with modern standards of governance legitimacy and expectations of citizens around the world while at the same time, we are witnessing rapid backsliding in the protection of human rights in many countries.
A renovated system should be designed by leading international human rights experts, which ensures reliable standards of impartiality, independence, transparency, and the highest levels of expertise employed throughout a next generation of 21st Century UN human rights institutions.
As with the ICJ, a wide range of analyses and substantive critiques exist of the current human rights architecture, as well as sensible and forward-looking proposals for systemic reform.22See, e.g., the range of reforms suggested in: Bassiouni, M. Cherif and William A. Schabas, eds. New challenges for the UN human rights machinery: What future for the UN treaty body system and the HumanRightsCouncilprocedures? Antwerp: Intersentia, 2011; and Subedi, Surya P. The Effectiveness of the UN Human Rights System: Reform and the Judicialisation of Human Rights. London and New York: Taylor & Francis, 2017, among many others. It is clear that funding for human rights institutions and programs must be substantially increased,23UN Office of the High Commissioner for Human Rights. “OHCHR’s Funding and Budget.” Accessed August 12, 2020. https://www.ohchr.org/en/aboutus/pages/fundingbudget.aspx: “And yet, the regular budget only allocates a tiny percentage of the resources to human rights that are extended to the other two pillars. With approximately half of all regular budget resources directed to these three pillars, human rights receive less than eight per cent of those resources. The approved regular budget appropriation for the Office in 2018-2019 is US$201.6 million, just 3.7 per cent of the total UN regular budget.” as well as further rationalization and consolidation of the current treaty body entities and systems of state reporting and evaluation, with an effort to systematically connect all UN entities involved in human rights promotion and protection.24Including the entities listed in Office of the High Commissioner for Human Rights. “Other United Nations Bodies.” Accessed August 31, 2020. https://www.ohchr.org/EN/HRBodies/Pages/OtherUnitedNationsBodies.aspx. The Human Rights Council should be reformed yet further, to ensure that its composition, membership, and activities are reliably impartial, representative of the world’s peoples, and not susceptible to claims of bias and politicization.25See e.g., proposals in Subedi, Surya, The Effectiveness of the UN Human Rights System: Reform and the Judicialisation of Human Rights; and earlier Schwartzberg, Joseph E. Transforming the United Nations System: Designs for a Workable World. Tokyo and New York: United Nations University Press, 2013, 110–28 (Chapter 6 “A Credible Human Rights System”). An expert group—held at arm’s length—should be convened by like-minded states who wish to champion human rights, to study and recommend ambitious, next generation reform proposals of the Council and the entire UN human rights architecture (e.g., such as those proposed by Surya P. Subedi, OBE, QC).26Ibid.
Furthermore, proposals such as that for an international human rights court made in 2011, supported by the Swiss government, the former High Commission for Human Rights Mary Robinson, and many other prominent persons, should be given new impetus and moved forward as a longer term goal.27Geneva Academy of International Humanitarian Law and Swiss Federation. Protecting Dignity: An Agenda for Human Rights. 2011. Accessed August 12, 2020. https://web.sonoma.edu/users/s/shawth/Panel%20Human%20Dignity. Preparations for the establishment of such a court should be undertaken, charting an implementation/activation path with incremental steps, which might include strengthening regional systems, systematic preparatory capacity building and technical assistance, and wide-ranging consultation on optimal design. As with other areas of international law, the time is now ripe for states to make good on their human rights commitments, keeping pace with the aspirations and legitimate expectations of populations around the world.
Establishing an International Judicial Training Institute
Oscar Schachter famously posited in 1977 that there would be an “invisible college of international lawyers” dispersed throughout the world.28Schachter, Oscar. “The Invisible College of International Lawyers.” Northwestern University Law Review 72, no. 2 (1977): 217– 26. However, too often both practicing and academic lawyers remain focused on national perspectives, interests, and narratives, depriving international law of a truly “international” character.29See Roberts, Anthea. Is International Law International? Oxford: Oxford University Press, 2018. There is a current need for a skilled and well-trained international judiciary, which will increase even more by strengthened international judicial bodies and mechanisms. Better training, creating shared bodies of knowledge, and professional ethics are essential to lending legitimacy to and confidence in the genuine impartiality and detachment from national political concerns of international justice institutions.
Therefore, we propose the establishment of a modern and well-resourced International Judicial Training Institute, dedicated to the formation of judges who are to sit at key international courts (including the ICJ, the ICC and ad hoc criminal tribunals in particular, but also, for example, offering training modules or programs relevant to the International Tribunal for the Law of the Sea, WTO dispute resolution, international arbitration venues where states are parties to litigation, regional courts, and dispute resolution bodies, etc.). Such an institute would ensure that judges (as well as their clerks) sitting at all international courts are subject to the necessary formation, including with respect to judicial ethics, independence, core legal principles of the international system, and specialized knowledge in various branches of international law, as well as developed skills of case management suited to large, complex, and multi-cultural international cases.
Such a training institute, moreover, could serve as a convening space for regular dialogues between judges from different international courts and representatives and officials from other relevant bodies such as the UN Security Council and the Human Rights Council. Such meetings could also serve to improve cooperation between New York and Geneva-based institutions.
International Anti-corruption Court
Good governance around the world is fundamentally compromised by the widespread prevalence of corruption.30Goldstone, Richard J. and Mark L. Wolf. “Coronavirus presents bonanza for kleptocrats.” April 6, 2020. Accessed August 12, 2020. https://accountabilitynow.org.za/coronavirus-presents-bonanza-for-kleptocrats/. Corruption, including acts such as bribery of public officials, embezzlement of funds, or abuse of functions among governing elites in many countries has been linked to human rights violations, international security threats, and the undercutting of the accomplishment of even basic societal goals. A staggering sum of money is lost globally each year to corruption, with some estimates running at U.S. $1 trillion annually.31Rotberg, Robert I. “Accomplishing Anticorruption: Propositions & Methods.” Dædalus: Journal of the American Academy of Arts & Sciences 147, no. 3 (2018): 5. As one former High Commissioner for Human Rights has expressed: “Corruption kills . . . The money stolen through corruption every year is enough to feed the world’s hungry 80 times over . . . Corruption denies them their right to food, and, in some cases, their right to life.”32United Nations Human Rights Office of the High Commissioner. “Opening Statement by Navi Pillar, High Commissioner for Human Rights: Panel on ‘the negative impact of corruption on human rights’.” March 13, 2013. Accessed August 12, 2020. https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13131.
The international community should, as soon as possible, take forward proposals for the establishment of an international anti-corruption court, to implement the number of legal instruments that are already adopted and ratified by a wide range of nations, but that have not been effectively implemented to achieve their crucial aims.33United Nations Office on Drugs and Crime. “United Nations Convention Against Corruption.” Accessed August 12, 2020. https://www.unodc.org/unodc/en/treaties/CAC/; OECD. “OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.” Accessed August 12, 2020. http://www.oecd.org/corruption/oecdantibriberyconvention.htm. The setting up of an such a court should be considered a necessary step to curb the spread of what can now be understood as an unrelenting global epidemic, affecting developing and developed countries alike.
A prominent proposal to be taken up is for a new, standalone International Anti-corruption Court (IACC) that would, in broad brush, follow the model of the ICC, as advocated for by U.S. Senior Judge Mark Wolf and colleagues supporting the Integrity Initiatives International (III). Like the Rome Statute of the ICC, such a Court could be created by way of a stand-alone treaty open for ratification by States. Within the U.S. national system, Judge Wolf notes that federal jurisdiction is commonly used to address corruption at the state level. The federal system allows the deployment of specialized expertise and substantial resources along with the independence to root out entrenched corruption at the local level. By analogy, to ensure effective prosecutions of corrupt national officials in countries around the world, a higher level of surveillance, investigation, and enforcement is required on the international plane.34Wolf, Mark L. “The World Needs an International Anti-Corruption Court.” Dædalus: Journal of the American Academy of Arts & Sciences 147, no. 3 (2018): 149-153.
The IACC model proposed by III would embrace the complementarity principle of the ICC, investigating and prosecuting only when national courts are unwilling or unable to fulfill their duties. Such a court would prioritize the most serious cases, targeting “grand corruption” or the abuse of public office for private gain by a country’s leaders. Such a focus breaks national patterns of systematic corruption and impunity as the highest tier leaders control the law enforcement and justice system, thereby blocking meaningful national efforts to fight corruption.35Wolf, “The World Needs an International Anti-Corruption Court.”
The 1945 UN Charter itself (in Article 109, paragraph 3) envisioned a comprehensive revision and assessment of its provisions within ten years of its adoption. UN75 is an inflection point to reflect on how such an assessment could now be carefully prepared and undertaken, with a particular focus on the key “system characteristic” of the international rule of law and re-affirming the rules-based international order.
Returning to and strengthening the international community’s core architecture is overdue and presents a compelling opportunity within today’s “multipolar” dynamics. Indeed, the global community now has an opportunity to set a course for positive change away from an unstable, power-based approach to international relations, —the dynamics of which are not fit for the modern world nor for the set of highly difficult problems on the international agenda. The revised draft text of the UN75 commemorative declaration unambiguously affirms that the “purposes and principles of the Charter of the United Nations and international law remain timeless, universal and an indispensable foundation for a more peaceful, prosperous and just world.”36United Nations. General Assembly. Declaration on the Commemoration of the Seventy-Fifth Anniversary of the United Nations. June 17, 2020. Accessed August 12, 2020.https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/06/[email protected]. Therefore, the international community commits to “strengthening transparent and accountable governance and independent judicial institutions.”37United Nations. General Assembly. Declaration on the Commemoration of the Seventy-Fifth Anniversary.
The “International Rule of Law Package” we propose in this paper contains specific, ambitious, but realizable steps to make real progress in reaching this goal.38The issue of funding and the expenses of international judicial institutions is frequently raised as a barrier. However, there are a range of funding solutions that should be explored to provide this most fundamental global public good. See, e.g., those suggested in Lopez-Claros et al. “A New United Nations Funding Mechanism,” 264–91. It responds to recent concerns voiced in international fora at the highest levels of leadership and addresses the fragility of our current rules-based international order.
Within the frame of Agenda 2030 and Sustainable Development Goal 16—“Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”—the international community itself should be the preeminent leader in implementing this Goal in its legal institutions. In the recent UN Secretariat UN75 public consultation (Preliminary Assessment), among the top areas of concern for a shared future that global populations “want to create” are: environmental protection, protection of human rights, and less conflict,39Office of the Under-Secretary-General and Special Adviser on Preparations for the Commemoration of the UN’s 75th Anniversary. Resolved to Combine our Efforts: Preliminary Assessment of the UN75 Survey and Dialogues. New York: United Nations (April 2020), 2. all areas susceptible to significant remediation through better international rule of law regimes such as those described above. The current management of climate and related global environmental risks is one compelling example of the need for the substantially enhanced implementation of international law;40It has been recently reported that there is a 97 percent chance of overshooting the 2 percent upper target of the Paris Agreement based on countries’ actions to date. The CAT Thermometer Climate Action Tracker (available at Climate Action Tracker. “The CAT Thermometer Explained.” Accessed August 12, 2020. https://climateactiontracker.org/global/cat-thermometer/. the international community should systematically cultivate a habit of establishing sound enforcement regimes for all agreed international obligations. UN75 should be a moment of critical self-reflection and stock-taking for the international community, and the starting point for the pursuit of ambitious new plans in harmony with the values upon which the Charter and the United Nations were founded. Given the gravity of the global challenges now confronted, decision-makers should be ambitious in contemplating re-commitment to core UN Charter principles. And indeed, international law is currently at a point of maturity where the next productive steps of improvement can be made. There have been substantial achievements in the sphere of the rule-based international order, but there is undoubtedly more work to be done. Fortunately, the international community, and essentially every nation of the world, has already committed to the vision of a rules-based international order.
On the Series
UN75 Global Governance Innovation Perspectives
This series, inspired by the Working Group on Global Governance Innovation and Renewal meeting held on 15 December 2019 at the Doha Forum, seeks to highlight authors writing on topics that stimulate debate and influence: (1) the UN 75 Political Declaration, (2) the 21 September 2020 UN 75 Leaders Summit in New York and its follow-through, and (3) follow-up activities such as a proposed 2023 UN Conference on Multipolar Governance and Global Institutions, as recommended in the 2019 Doha Forum Report. 41Reimagining Governance in a Multipolar World. The Doha Forum, 2019. Accessed June 3, 2020. https://dohaforum.org/docs/default-source/default-document-library/reimagining-governance_doha_forum-for-print.pdf. Views expressed here do not necessarily reflect those of The Stimson Center, its Board of Directors, any of the partners who supported this project.
Editorial Team: Joris Larik (Series Editor), Maheera Siddique (Copy Editor), Richard Ponzio (Project Lead), and Cristina Petcu (Communications and Advocacy Lead)
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Leiden University, Faculty of Governance and Global Affairs
Leiden University was founded in 1575 and is one of the leading international research universities in Europe. Located in The Hague, the city of peace, security, and law, the Faculty of Governance and Global Affairs studies current topics such as climate change, terrorism and economic crises. With its interdisciplinary approach, the faculty connects with the surrounding national and international organizations.
Maja Groff is an international lawyer based in The Hague. She has worked on the development and administration of multilateral treaties, at international criminal tribunals, taught at the Hague Academy of International Law and is currently a visiting scholar at Leiden University. A graduate of Harvard, Oxford, and McGill Universities, she has drafted a broad range of international legal policy documents and published on private and public international law, human rights, and global governance, co-winning a major international prize in 2018 on global governance innovation.42 The views expressed in this paper are individual and do not reflect the views of any organization or institution. Joris Larik is Assistant Professor at the Faculty of Governance and Global Affairs of Leiden University and Senior Advisor and Nonresident Fellow for the Just Security 2020 Program at Stimson. Dr. Larik has published widely in international law, EU foreign policy, and global governance reform. In 2014-15, he served on the core project team for the Albright-Gambari Report of the Commission on Global Security, Justice & Governance. Contact: [email protected]