Friday, April 13, 2012

International Law and diversity

There was this refreshing piece in the Intlawgrrls blog by Mereille Delmas-Marty titled "Internationalisation of Law - Diversity, Perplexity, Complexity".

Regarding the Diversity in International legal systems she said:
“Diversity of legal orders” may be considered by reference to different levels of organization, different fields of legislation, and different speeds of evolution.The different levels of organization are the national, regional, and global legal orders. The relationship among these orders is vertical. Yet it is not linear. To the contrary, it is discontinuous, incomplete; there are many gaps between these levels of law. ... 
In recent years, Pascal Lamy (below right), Director-General of the WTO, has spoken of the “triangle of global governance.” (photo credit) In his words:       
'On one side of the triangle lies today the G-20, replacing the former G-8 and providing political leadership, policy direction and coherence."

'The second side of the triangle is the United Nations, which provides a framework for global legitimacy through accountability.

'On the third side lie member-driven international organizations providing expertise and specialized inputs be they rules, policies or programmes.'
I do not fully agree with Lamy’s metaphor.
In my opinion, global governance is even more complex than Lamy admits. It involves not only the triangle to which he refers, but also at least one other – a triangle of nonstate actors, actors who have quite a bit of political power.
► On one side of this triangle may be found multinational corporations, many of them more powerful than small states.
► On the second side are civic actors; for example, non-governmental organizations and trade unions.
► On the third side lie scientific experts.
Explaining that the impact of this diversity is on creating a perplexity, she continues:
"If we focus on one of its effects, fragmentation, the answer likely will be “disruption.” Diversity seems unhealthy, a disease of the previous legal order. By this view, diversity causes legal disorder – conflicts and inconsistency, as evidenced by the debate over the relation between the WTO and the ILO. It even may be seen to cause arbitrariness, in that it gives judges more discretion to choose the legal principle on which they will rely – a discretion to engage in what we might call, not “forum-shopping,” but rather “legal-order-shopping.”
 But if we focus on another aspect of diversity – its fostering of a plurality of sources of law – our answer likely will be “irruption”; that is, the bursting forth of a new model. Diversity may be good for us, necessary in a transitional period. It opens the way to combining different objectives in a pluralistic and open-minded spirit – something we have seen in the emergence of sustainable development. Diversity prepares legal orders for metamorphosis."
 The piece finally says that the complex legal systems must be transformed into a pluralistic legal order. One sees complex international systems pertaining to the environment, human rights, labour, currency manipulation and trade coalescing together with jurisdictional and ideological overlaps. How does one reconcile these seemingly conflicting forces in the rubric of international law? Is this a melting pot or atleast a meeting point? Altogether some fodder for thought!

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