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Contributions from
the Column
Monitor
Hong Kong: near failure
Strengthened individual, weakened state
Budget crisis averted
Fewer landmine victims
Health services:
passing by the poor
NGOs claim Iraq
is selling oil reserves
More people infected with HIV
French NGOs take stock
of government action
Millennium Goal still a long way off
01/2006
01/2006
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[ International law ]
Strengthened individual, weakened state
Lawmaking is one of a government’s most important tasks. The law helps the government to provide its citizens with a framework for action and to pursue the majority of its goals. What are the consequences for a government’s ability to act and for the wellbeing of its citizens if it is bound by an increasingly dense network of international laws? This question was raised with regard to criminal and commercial law at a conference of German Technical Cooperation (GTZ) and the UN trade organisation UNCTAD at the end of November in Berlin.
According to René Blattmann, a judge at the International Criminal Court in The Hague, the most significant innovation in criminal law is the perception of the individual as a legal subject at the international level. According to the traditional understanding, only countries are subjects of international law. With the Nuremberg war crimes trials and the tribunals of Bosnia-Hercegowina and Rwanda, however, individuals have now also become subjects of international rights and duties. This development was fully formalised with the Rome Statute and the formation of the International Criminal Court in 2003. However, this individualisation also has its drawbacks. According to Klaus Günther from the University of Frankfurt, for example, this process of juridification entails the risk that social conflicts become depoliticised and “reduced to a relationship between the accused and the victim”.
International criminal law only comes into effect if national criminal prosecution does not work. On the other hand, the legally binding liberalisation of world trade increasingly restricts nation states’ powers. And unlike the Hague Criminal Court, which is dependent on the cooperation of the nation states, the World Trade Organisation (WTO) has an effective instrument in its Dispute Settlement Body to enforce trade rules.
For a long time, the effects of the world trade rounds on national law presented few difficulties because the main concern was the reduction of tariffs, which only affected the countries’ border regimes. However, today WTO law has assumed another quality, according to Elisabeth Tuerk of the UNCTAD Secretariat. Since services also become more and more liberalised and the protection of intellectual property is on the WTO agenda, trade laws interfere with nation states’ regulatory powers. The consequences are more and more difficult to deal with. Even the language of the rules is a problem: while at national level legal texts are drawn up in a precise manner, WTO laws are based on political compromises and are often very vague.
A complaint by the Caribbean country Antigua and Barbuda against the USA over a licence for online gambling makes clear how complex the situation is. WTO mediators had to spend a long time checking to what extent the USA had actually agreed to open the market in this sector. Elisabeth Tuerk says: “If even industrialised countries aren’t able to assess the consequences of commitments to the WTO, how are developing countries, which have far fewer resources, supposed to be in a position to do so?”
It is therefore predominantly the rich countries that use the WTO’s mediation mechanism. The USA, the EU, Canada and Japan alone have initiated 185 of the 324 mediation proceedings over the past ten years. Whereas emerging economies such as Brazil and Thailand have recently had remarkable successes in proceedings against industrialised countries, the least developed countries are barely represented, according to information from the WTO secretariat.
Better training for trade experts, as is offered by the World Trade Institute in Bern, could change this. The Geneva-based Advisory Centre is following a different path for WTO law. The institute, which is supported by several WTO members, offers developing countries legal opinion in trade disputes at affordable costs.
Matthias Rumpf
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