This chapter contributed by Alexandru Zgardan brings the perspective of trained jurist to bear on the ideas outlined in the book. Echoing the points made in a number of earlier chapters regarding enforcement, it is noted that the International Court of Justice (ICJ), far from having real enforcement powers, can only adjudicate in international disputes when the states and other parties concerned agree to accept its jurisdiction; and if that is agreed, then the eventual of the court relies for their application on moral suasion. The UN Security Council which has in theory some powers of enforcement has never exercised these when it really matters because of the veto powers allocated to the five permanent members of said Council (USA, UK, France, Russia, China). If this points to the need for a fundamental rethinking of the nature and functioning of international law in the face of the increasingly transnational problems of the twenty-first century, it is argued that we are not starting from a tabula rasa in respect of such reform. We already have at least four entities which seek to determine legality above the level of the nation state: the ICJ, the International Criminal Court, the World Trade Organisation’s (WTO) Appellate Body (for dispute resolution) and in Europe the European Court of Human Rights as well of course as the European Court of Justice for the EU member states. The ECJ already has of course full-blown enforcement powers as noted in earlier chapters; for all of the others, one could imagine a path of gradual evolution towards real enforcement powers culminating in a fully supranational World Court of Justice capable of responding to the legal challenges of a complex and highly interdependent globalised digitally interconnected world.

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Making the Leap from an Agreement-Based World to Supranational Legality: Towards a Global Rule of Law

  • Alexandru Zgardan

摘要

This chapter contributed by Alexandru Zgardan brings the perspective of trained jurist to bear on the ideas outlined in the book. Echoing the points made in a number of earlier chapters regarding enforcement, it is noted that the International Court of Justice (ICJ), far from having real enforcement powers, can only adjudicate in international disputes when the states and other parties concerned agree to accept its jurisdiction; and if that is agreed, then the eventual of the court relies for their application on moral suasion. The UN Security Council which has in theory some powers of enforcement has never exercised these when it really matters because of the veto powers allocated to the five permanent members of said Council (USA, UK, France, Russia, China). If this points to the need for a fundamental rethinking of the nature and functioning of international law in the face of the increasingly transnational problems of the twenty-first century, it is argued that we are not starting from a tabula rasa in respect of such reform. We already have at least four entities which seek to determine legality above the level of the nation state: the ICJ, the International Criminal Court, the World Trade Organisation’s (WTO) Appellate Body (for dispute resolution) and in Europe the European Court of Human Rights as well of course as the European Court of Justice for the EU member states. The ECJ already has of course full-blown enforcement powers as noted in earlier chapters; for all of the others, one could imagine a path of gradual evolution towards real enforcement powers culminating in a fully supranational World Court of Justice capable of responding to the legal challenges of a complex and highly interdependent globalised digitally interconnected world.