Globalization and the Rule of Law

The Research Proposal

Globalization is increasing alarmingly with civilization in the world today. It is characterized by international corporations, consumerism and new means of communication. These are favored by market liberalization and the development of laws to govern capital flows throughout the world. The trade liberalization, local activity that aims at the global markets and technological developments are all aimed at improving the livelihoods of the people of the world. These are however changing with technological advancement. The new global players in modern globalization are; regional organizations, Non-Governmental Organizations and media corporations.

Globalization is happening so fast yet the marching laws to control global activities have not been well developed. Brietzke notes that new forms of globalization are emerging each day and these come hand in hand with new types of crime (Brietzke 634). There is a need therefore to study the different forms of globalization and the nature of the law or the marching rule of law.

The objectives of the study are to understand Globalization along with the rule of law and to find out what has been done by the international world to control crime in the global world up today. The paper also tries to find out what needs to be done to protect the people’s “human rights” with the growing globalization. This study is quite important because it seeks to find answers to the question regarding what needs to be done to ensure the law is followed to the later in the global environment as even globalization increases. A lack of a universal international legal system has led to infective global crime prevention and human rights violations as globalization increases. This paper is going to follow the MLA style of referencing.

Introduction

Globalization and the rule of law have a complex relationship. Globalization refers to the integration of various world societies, cultures and economies through trade, transportation and communication. This has led to widespread interaction between different people from different parts of the world to share knowledge, commerce and culture. Globalization has been high with increased civilization. Economic globalization is the common form of globalization as different world communities integrate through trade (See Scheuerman page 3). For most middle-income earning countries, most household property and clothes are usually imported from a given country. The rule of law on the other hand refers to a “legal maxim” that makes everybody act within the expectations of the law. Clapham points out that, if anyone breaches the law then they are punished accordingly (Clapham 12). A lack of a universal international legal system has led to infective global crime prevention and human rights violations as globalization increases

Globalization and its effects

Globalization has many positive impacts on the individuals and countries involved. For instance, it allows people to have access to a variety of products and not be limited to just the products of their country and this gives the people a cross-cultural experience (Monkevicius 198). For the nation, many economic opportunities are presented with globalization. Vietnam, Brazil and China are some of the countries that have had high economic growth rates which to a great extent are a result of globalization. These countries produce a variety of products that are exported to the rest of the world leading to high foreign exchange and consequently high economic growth that contributes greatly to poverty reduction in the entire country. Industrial production has been globalized to a point where some counties have industries producing products for the world. This has boosted international trade as these products are marketed internationally.

Foreign trade trends and investments have risen sharply in the past twenty years. This has improved the standards of living in the westernized countries while the developing countries’ poor residents have had increased poverty conditions. For example the people from developing nations’ rural areas have no access to electricity, leave alone access to computers and the internet. They are hence not able to access information on developments in the world and not able to access the benefits of globalization. This has led to, as Scheuerman points out, the argument that globalization has led to wider inequality conditions. This has increased competition in the global market where industries improve the quality of their products in order to compete highly in the market. This has led to access to the best quality products by the population (see Scheuerman page 5).

Job markets have today grown from local, national to international where one competes with other people from the world. In earlier times, one’s economic development was tied to the economic standards of his or her country but today, one’s earnings are not limited to the economic nature of his or her country of origin as one can work anywhere in the world. This has been made possible with the internet technology through which people can know what is going on in other parts of the world and what opportunities are available in which region. In terms of finance, people can have access to international financing for those who would want to borrow from international lenders. This has assisted many people to advance economically. Also with the freedom to exchange capital and goods, there is a common global market for the different populations from varied parts of the world.

According to Scheuerman (11), there are many forms of technological advancements in the world today and this has been growing with the interaction of people from various parts of the world sharing their ideologies. This view is supported by Jeffrey (6) who notes that, the development of the internet has made it possible for people from various parts of the world to easily interact. Internet is the main and most common form of international communication. Moreover, others like telephone, air transport and other forms of transport have boosted globalization). With this form of interaction throughout the world, there is a need to develop regulations to control the different relationships developed among different governments. This would guarantee those involved that they have laws that will protect them in event of any misunderstandings with those they interact or relate with. Over time, the United States, because of its economic prowess has always controlled the nature of international relations in other parts of the world. China has benefited greatly from the assistance of the United States hence it has had remarkable economic growth.

Other effects of globalization include ecological ones where different states of the world come together to find solutions to environmental concerns like global warming, pollution, climate change, overfishing among others. With globalization, regulations on how to manage industrial development with the environment in mind will reduce the impacts of industrial pollution on the environment hence by adoption of sustainable development ideas (see Monkevicius page 201). However in the past developing countries were allowed to make industrial developments without any regard to the environment but instead about improving the living standards of the people. International movements and organizations have been developed to watch over the environment by making regulations to be observed internationally. According to Alston (118) , there is also the widespread distribution of international organizations that aim at improving the livelihoods of the poor and the needy in society. This is done with the help of NGOs. There are also international courts and justice movements that watch over the rights of the people and protect humanity.

The rule of law

The rule of law in this regard can be viewed as mean the existence of a legal system to regulate the interaction of the people internationally and reduce crime that may come as a result of globalization. It is not only the people who are entitled to the law but also those in authority or rather in the government who are affected by these laws. This law can be said to be supreme to the law of state hence everybody is answerable to the rule of law; as Dias points out, “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government” (page 120).In order to acquire benefits of engaging in trade, as a key requirement, there is need to have in place a legal system as well as the “political order” which ensures enforcement of, as Alston notes, “contracts, protects property rights, carries out mortgage agreements, provides for limited liability corporations, and facilitates a lasting and widely used capital market that makes the investments and loans more liquid than they would otherwise be” (Page 185). There should be expectation that the arrangements of this nature are supposed to be there for some time. Alston further points out that, in order acquire the benefits that accrue from the transactions that are complex and long term;

the individuals in a society not only need the freedom to trade but also the right to establish secure title of property and to mortgage property. They must have guaranteed access to impartial courts that will enforce the contracts they make, as well as the right to create new forms of extended cooperation and organization, such as the joint-stock corporation (Page 185).

Globalization and the rule of law

Globalization and the rule of law basically analyze how laws have been made or are in the process of being made globally. There are no international legal frameworks recognizing the rights of property (see Jayasuriya page 442). There is no legal system that defines and describes the punishment for crimes relating to property. There are no judges, courts or tribunals for appeal to for protection of such cases either. As much as finance and capital can be acquired from international bodies, the entitlement of this money is still under domestic laws (see Brietzke page 640). Besides these, the legal framework that contains the impact of human activities on the environment like the formation of acidic rain is limited to the national level as well. Basically this means that as much as globalization is growing each day and the impact of one’s activities impact on the international environment, these are still controlled by just the domestic laws without any special international legal system. Communication, commercial/trade and social interaction that has led to globalization that is irreversible in nature have not had a parallel accompaniment of the sufficient legal framework. Hence, globalization and the accompanying actions have not been subjected to the required norms and laws that form the framework to contain globalization. Dias points out that, there should be a strong link between “socio-economic and judicial globalization” (page 66)

The domestic laws that apply to issues relating to globalization are however not effective to regulate global actions that may affect the international population. Since these activities affect the international community, there should be a form of legal framework from the international community to protect people, the economy or the environment that is beyond the local setup (see Aykaç page 830). Kukoc (80) points out that, the development of the rule of law on globalization should be based on the domestic/national laws on which they operate and from which they emanate. This development will make international corporations to be confident in investing in the various countries as their safety will be guaranteed by international law (see Jayasuriya page 442). This scenario may leave some countries marginalized from economic and financial support that comes along with globalization (Held and McGrew [a] 16). On the other hand, a lack of international/ supranational laws to regulate globalization can have some countries developing in their industries using the wrong/crude mechanisms that may lead to increased negative impact of the gasses produced. This will impact the environment through air or water pollution and since this flows beyond limited national boundaries, there will be increased pollution and have a global impact rather than a national one. Besides industrialization other activities done locally but tend to affect the globe include; deforestation, the spread of infectious diseases, effects of increased refugee population, acid rains among others. In communities where there is no sound law, a lot of things are bound to happen and these are spread to other places depending on the strength of the legal system in place.

International terrorism is also another issue of concern in the world today and many countries are threatened, this is not just a result of a weak local legal system but also a result of a lack of the rule of law. With globalization, international terrorism cannot be eliminated as a major issue of concern. According to McKeever (363), since the domestic laws of different countries differ internationally, there is a need for the international community to harmonize these and develop an international legal system. This would protect people from performing international crimes. He gives out an example that , we might be having a case where commercial sex is illegal in one’s country and when one travels to another country, he might find out that commercial sex is not a big deal in the new country. Following this, some people may travel to such countries and perform an act that is a crime in their own country. Basically, with globalization one is able to use whichever domestic laws favor him to do anything they want to do as long as the domestic laws of the country in which they do this favor them.

However, there is an international legal system that puts into consideration serious crimes like “crimes against humanity”, genocide and war crimes. The system basically applies to citizens of member countries or states that accept the jurisdiction of the international court (Magen 55). This form of jurisdiction is brought to play when the national jurisdiction of the country of origin of the suspects fails to attend to the crimes mentioned. Held and McGrew [b] (42), Magen (60) note that, China and United States are not members of this international jurisdiction which threatens their independence and financial support since the two are major economies of the world.

The most ancient effort towards declaration towards international human rights was made in 1997 in Cape Town by Tun Daim Zainnuddi, an economic advisor in the Malaysian government. This declaration has one-eighty members today from the original forty members. It is desired to be made relevant to present times and acceptable to more states. This declaration draws from several cultural perspectives as Cumaraswarmy notes;

It is true that at this time large parts of the developing world were under colonial tutelage. But they had their champions and spokespersons among the drafters of the Universal Declaration, who did them proud. The Universal Declaration, beyond a doubt, drew on the intellectual patrimony of the peoples of the world (page 111).

The declaration goes further to talk about its existence and importance in protecting the victims of human rights violations from criminals. Cumaraswarmy states; “It is important to bear in mind that it is never the victims, but the violators of human rights principles and their advocates who invoke the relativist argument against the principle of universality” (page56).

The Cape Town declaration came after the development of the “UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court”

On 2001, the 13th of November, US president then, Bush declared “an extraordinary emergency” and this would give him the power to order a military trial for suspects of international terrorists who bypass the American legal system. In instances of war, the American territory has intervened even when that is not within the law. No law gives the US the right to control other states criminal affairs but the American constitution is flexible enough to protect the rights of the people and hence its Supreme Court has the power to look into crimes of humanity and America being a world superpower, it has the right to intervene in event of another country being involved in war crimes or terrorism that affects the world peace (Magen 77).A comparative analysis of the way different states handle crimes related to terrorism revealed that the United Kingdom, the United States and Israel’s Supreme Courts end up resorting to the balancing of the judiciary system in cases that relate to war on terrorism. This balancing is purely for ensuring that legislative and executive approaches are used by the judiciary in handling crime suspects using rigid criteria provided by law. Further comparison between the Canadian and British systems of anti-terror revealed that their trade-offs between security and liberty are normal. These trade-offs are unavoidable in some cases and the only way fairness is realized in these cases is through judicial use of proportionality standards. Generally, there is a varied view of terrorism from various states as the standards of terrorism differ from one state to the other and hence their experiences determine how the state approaches issues of terror in its judicial system. But still there are many basic similarities in the constitutions of the various nationalities. Basically due to the similarities of the understanding of terrorism, then different countries have similar approaches to the issue but due to variations in culture and experiences of these states, they at the same time have different approaches to issues of terrorism. However, according to Cumaraswarmy (68), terrorism is a major violation of humanity and it has severe impacts which include loss of life and property as experienced in terror attacks that have occurred the years that have passed, there is a need for internationally recognized laws. This is especially more important as the criminals are mainly from countries where terror or loss of life is not a big deal due to their religious beliefs. They do not, however, realize that other states attach importance to human lives and therefore since terror leads to loss of lives, they are very serious crimes against humanity that may cost the offender their lives. These criminals will then be judged using the international law that applauds humanity instead of their local laws that ignore the consequences of the impact of terrorism.

Environmental and economic crimes are usually not committed by individual persons that can be subjected to the law and punished accordingly but by large organizations. This complexity hence makes it difficult to hold any persons liable for the crime offended. The organization is supposed to be put in such positions that can make them be held responsible for activities they engage in even if the offensive activities that can come are not linked to the purposes for which the organizations were set up (Monkevicius 210). However international movements, as Kinley points out, which have a tendency to offer protection to human rights “from issues of globalization but states have to be members for them to be held responsible if they do not adhere to the requirements of these organizations…serves to check pollution levels and to control economic frauds worldwide” (page 240).

Conclusion

The lack of a universal international legal system has led to infective global crime prevention and human rights violations as globalization increases. Globalization is an irreversible event of modern civilization where people interact beyond the boundaries of their home countries. This has made it possible for people to share different cultures especially over the internet and free movement from one country to the other. This interaction however needs some form of regulation to prevent people from committing crimes and getting away with it. This will also make it easy for people to be guaranteed their safety by the appreciation of human rights. Efforts have been made but it is realized that, in most cases, each country has put in place its own set of laws. What might be a criminal activity in one nation might necessarily be a criminal activity in another nation. The ICC has been set to deal with some serious international crimes but not all states have agreed to be members and it is not also effective in dealing with all crimes occurring in the world. Therefore, there is a need to set up international laws that are uniform and applicable in all nations of the world, as globalization increases.

Annotated Bibliography

Alston, Philip. Development and the Rule of Law: prevention versus cure as a human rights strategy. New York: Publication of the ICJ, 1981.

In this book, the author discusses the development and the rule of law. He relates this to globalization and human rights.

Aykaç, Aslıhan. “Global Challenges to Legal Regulation of State and Civil Society Relationship.” Ege Academic Review 10. 3, (2010): 829 – 843. Academic Search Complete. EBSCO. Web.

The main aim of the author of this article is to give out the role the law plays in the structuring and regulation of the relationship that exists between the state and the civil society and the level of the challenge brought in by this relationship. It is pointed out in the article that, on one hand there are various formulations as well as conceptualizations of the relationship between the state and the civil society, on the other hand, this relationship can only be defined formally through a legal framework.

Brietzke, Paul H., “Globalization, nationalism and human rights.” Florida Journal of International Law 17. 3 (2007): 633 – 691. Academic Search Complete. EBSCO., 2007. Web. 

In this article, Brietzke points out a significant and increasing conflict between human rights, nationalism and globalization. A reflection of the fully detailed organs of culture and law is given by human rights and globalization and on the other hand, nationalism concerns itself with sovereignty for some specific groups.

Clapham, Andrew. Globalization and the Rule of Law, 1998. Web.

This article discusses globalization and the rule of the law. He points out some issues concerning globalization and how it has affected the rule of law.

Cumaraswarmy, Douglas. 1997. “The Universal Declaration of Human Rights – Is it Universal?” The Review of the International Commission of Jurists 118.

The author talks about the declaration of human rights. He relates this to globalization and international law.

Dias, Clarence. “Globalization, Liberalization of Trade and Investment: Impact on Respect for Human Rights”, The ICJ Cape town Conference, July 1998.

Dias discusses globalization in this article. He points out some impacts of globalization on respect for human rights.

Held, David. and McGrew, Anthony [a]. The Global Transformations Reader. An Introduction to the Globalization Debate. Cambridge: Polity Press, 2001.

In this book, Held carries out a discussion about the debate concerning globalization. He points out the way globalization has affected the rule of law.

Held, David. and McGrew, Anthony [b].Globalization/Anti-Globalization. Oxford: Polity Press and Blackwell Publishers Ltd, 2002

In this book, Held carries out a discussion about the debate concerning globalization. He points out the way globalization has affected the rule of law.

Jayasuriya, Kanishka. “Globalization, Sovereignty, and the Rule of Law: From Political to Economic Constitutionalism?” International Journal of Critical & Democratic Theory; 8.4 (2001): 442. Academic Search Complete. Web. 

In this article, there is a discussion of the idea of sovereignty in examining the transformation of the “rule of law” given shape by globalization. It is pointed out in the article that comprehending the complex correlation between the rule of law and globalization is a very hard and indescribable undertaking because it is an issue that requires comprehensive consideration of related issues like the “nature of the state” and sovereignty.

Jeffrey, D. Sachs. Globalization and the Rule of Law, 1998. Web.

In this article, Jeffrey discusses Globalization and the Rule of Law. He points out some important issues concerning these areas.

Kinley, David. Human Rights, Globalization and the Rule of Law: Friends, Foes or Family, UCLA Journal of International Law and Foreign Affairs, 7.2, (2003): 239 – 264.

The author carries a discussion on Human Rights, Globalization and the Rule of Law. He also looks discusses international law.

Kukoc, Mislav. “Liberal Democracy and the Rule of Law in the Age of Globalization.” Globalization of Politics; 7, (2008): 71-85. Academic Search Complete. EBSCO. Web. 

The author presents liberal democracy and “the rule of law” in modern globalization. This author states that the mass media, as well as the civil society, have jointly boosted human rights and norms associated with good governance on the basis of the “rule of the law”. There is also a discussion of the relationship that exists between globalization and democracy.

Magen, Amichai. “The Rule of Law and its Promotion abroad: Three Problems of Scope.” Stanford Journal of International Law; 45.1, (2009): 51-115, 65. Academic Search Complete. EBSCO. Web. 

In this article, the author puts focus on the concept of the United States of America’s rule of law and how it is promoted outside the country. The author points out the need for law experts to ensure reorientation of the approach they employ to the rule of law.

McKeever, David. “The Contribution of the International Court of Justice to the Law on the Use of Force: Missed Opportunities or Unrealistic Expectations?” Nordic Journal of International Law; 78.3 (2009):361-396. Academic Search Complete. EBSCO. Web. 

In this article, McKeever presents an argument that the International Court of Justice has not attained success to a large extent in offering comprehensible direction on pressing legal issues. The author also emphasizes some possible outcomes of the International Court of Justice’s recent work for the building up of the international law on the utilization of force.

Monkevicius, Eduardas. “Environmental legal problems in the context of globalization.” Jurisprudencija 1.119, (2010):197-210. Academic Search Complete. EBSCO. Web. 

This article gives a description of the process of globalization as a “an inevitable historic and objective phenomena” that serves as a “driving force” of progress as well as the development of society. The article talks about the problems associated with environmental law and globalization. The author suggests that there is need to have improvement on the “main law” concerning the protection of the environment and to take up fresh laws concerning climate protection and pollution control and protection.

Scheuerman, William E. “Economic Globalization and the Rule of Law.” An International Journal of Critical & Democratic Theory 6.1 (1999): 3 – 25. Academic Search Complete. EBSCO. Web. 

In this article, Scheuerman puts focus on the continuing process of globalization and the “capitalist economy”. The author suggests that the experience of the current “economic globalization” brings about basic questions for the traditional legal theory as well as for the contemporary theory.