Meet Your New Neighbors, All Six Billion of Them: How Globalization is Making the Legal World Smaller

People and nations are rubbing elbows more as the global population swells.  In 2002, the world’s population topped six billion; the U.S. Census Bureau estimates it will surpass nine billion by 2050.  Not only is this population growing exponentially, but also it is becoming more interconnected through increased access to communications technology and decreased reserves of traditional energy resources.

In his latest book, “The Future,” Al Gore lays out an important premise: “One of the striking characteristics of our time is we have multiple revolutionary, historic changes under way simultaneously.”

Gore expands on the ramifications of a rapidly changing global climate, stating “This superstorm of change must be faced under the rising pressure of larger populations, greater competition for clean water and arable land, and shifting balances of power around the world.”

As society globalizes, there will be an increased reliance on international law and trade policy to resolve conflicts and craft internationally-acceptable codes of conduct. Christopher C. Jones’s prediction continues to prove itself true: “Globalization makes the world ever more interconnected and interdependent and, in doing so, transforms foreign affairs.”

In the past, sovereign nations dictated their own international rules. In today’s globalized society, however, international law is often crafted by intergovernmental organizations. One particularly active field is the international law of the sea, in no small part because more than two-thirds of all internationally transported goods are shipped by sea. The Internet has facilitated the rapid development of global communication and commerce. This increase in global-connectedness has resulted in concurrent need for law to resolve the conflicts that inevitably arise from multinational interaction. Because of their even-handed and unbiased stance, intergovernmental organizations and international agreements are often best suited to handle such immense macro-level legal problems.

Water Crisis: Why international law is so crucial to the Earth’s most crucial resource

The World Bank Report:

“The World Bank reports that 80 countries now have water shortages with more than 2.8 billion people living in areas of high water stress. This is expected to rise to 3.9 billion — more than half of the world’s population — by 2030 in a ‘business as usual’-scenario,” writes Erik Rasmussen at the Huffington Post. “The status as of today is sobering: the planet is facing a ‘water bankruptcy’ and we are facing a gloomy future where the fight for the ‘blue gold’ is king.” 

In the Middle East:

According to a study done by NASA in 2012, “Data show an alarming rate of decrease in total water storage in the Tigris and Euphrates river basins, which currently have the second fastest rate of groundwater storage loss on earth after India,’ said Jay Famiglietti, principle investigator of the study (to the Daily Mail). He added: “Meanwhile, demand for freshwater continues to rise, and the region does not coordinate its water management because of different interpretations of international laws [emphasis added].”

“Turkey controls the Tigris and Euphrates headwaters, as well as the reservoirs and infrastructure of Turkey’s Greater Anatolia Project, which dictates how much water flows downstream into Syria and Iraq”, the researchers said. “With no coordinated water management between the three countries, tensions have intensified since the 2007 drought because Turkey continues to divert water to irrigate farmland.”

Closer to home:

Water shortages have hit the North American continent as well. According to the Texas Commission on Environmental Quality, “Under a 1944 Treaty, Mexico must deliver an average of 350,000 acre-feet of water annually to the United States. Mexico has withheld more than 430,000 acre-feet owed to the U.S. to date, and the water deficit continues to grow, causing water suppliers across the Rio Grande Valley to run out of water.” Such strains on water resources could have a devastating impact on farmers in the southwest United States.

Who/What can resolve such complex issues?

St. Mary’s School of Law Institute on World Legal Problems

Academic programs focused in international law endeavor to address such problems. The St. Mary’s University School of Law Institute on World Legal Problems in Innsbruck, Austria is such a program. Now in its 28th year in the beautiful Tirolian Alps, classes are taught by well-respected professors and, often, United States Supreme Court Justices. Classes taught at the Innsbruck program include International Business Transactions, International Criminal Justice, and International Human Rights, among others.

Courses in Innsbruck on International Business Transactions focus on international transportation of goods and commerce. Because international trade will naturally grow to keep pace with the demands of an expanding and interconnected global population, it is imperative that international organizations develop and implement iterative and progressive international rules and procedures. International institutions are uniquely positioned to confront a legal world in which import/export laws can vary drastically between countries. Accordingly, international law oriented courses offered at international institutions, like the St. Mary’s Innsbruck program, allow students and legal professionals to compare the impacts of legal differences between sovereign nations.  In so doing, such courses encourage the analysis and understanding of how international economic law operates in the twenty-first century.

The Innsbruck program encourages students to focus on techniques and strategies used to create and implement international law, in academia or with intergovernmental institutions. To this end, the program examines economic sanctions, international public and private law, and international investment. The courses offered are designed to encourage discussion, explanation, and debate of international law amongst the students. The end goal is to enable the students to analyze and understand global issues and problems in a way that allows them to develop and propose novel solutions.

In short, the Innsbruck program realizes that the legal world is shrinking at a rate inversely proportional to the increase in communication and commerce brought about by quick clicks on the Internet and swipes of credit cards the world over.  Accordingly, St. Mary’s School of Law and the University of Innsbruck seek to understand the dynamics and challenges of globalization on the legal world.

In order to understand how globalization is making the legal world smaller, an analysis of an intergovernmental organization would prove duly instructive. With great fortune, I had the occasion to visit The Hague—a traditional city in the Netherlands and one of my favorite cities in Europe—where the International Court of Justice is headquartered. There I was able to meet and confer with officials who enlightened me on this fascinating international legal system.

The International Court of Justice 

The International Court of Justice (ICJ) is the principal judicial entity of the United Nations (UN). Located at The Hague in the Netherlands, the ICJ is a permanent court of international jurisdiction. The ICJ was created under UN framework, is financially and logistically supported by the UN, and is supervised by the President of the UN. The ICJ solely settles civil disputes between UN member states, though at times the Court will give advisory opinions to the UN and selected agencies of the UN family.

The ICJ differs substantially from the International Criminal Court, which handles cases against individuals accused of more serious crimes, including genocide, war crimes, and crimes against humanity.  In stark contrast, the ICJ does not try criminals of any sort.  The ICJ’s jurisdiction is further limited in that neither private individuals nor any organizations, public or private, may be parties to ICJ suits. Put simply, the ICJ is a venue for countries to bring grievances against one another. The ICJ is the highest authority on international law in the world and rightly calls itself the “principle organ of international law.”

There are a total of fifteen judges on the Court, each of whom has a re-eligible tenure of nine years. ICJ judges are elected by the UN General Assembly and Security Council. The ICJ assures that all legal systems are represented. In practice this principle is implemented by a distribution membership of the Court among the various regions of the world: three judges come from Africa, two from Latin America, three from Asia, five from Western Europe and North America, and two from Eastern Europe. Historically, there has been a judge of each nationality of each of the permanent members of the UN Security Council. Once elected, ICJ judges are expected to rule independent of the nation and region they hail from, and each member must take an oath of impartiality.

The Court elects its own President, Vice-President, and Registrar.

The Scope of the Court’s Jurisdiction

The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction.  The Court can gain jurisdiction over a sovereign state in four ways: sovereign nation parties can enter into a special agreement to submit the dispute to the Court; sovereign nations can enter into an agreement solely between themselves that includes a jurisdictional clause requiring submission of any discrepancy to the jurisdiction of the Court; the Court can accept review after a unilateral declaration; or the Court can gain jurisdiction by forum prorogatum. Because the Court is an entity of the UN—its enabling statute is embedded in the UN Charter—all members of the UN recognize, de facto, the existence of the Court and all procedures and relief thereby entailed.

The ICJ cannot resolve a dispute without the consent of all of the parties involved.  Notably, several modern treaties and agreements between sovereign states contain provisions placing the agreeing parties under ICJ jurisdiction, at least in given circumstances. 

Read more about how the ICJ works by visiting www.icj-cij.org/court.

How Can an American Lawyer Use the ICJ?

As noted before, individuals cannot bring suits to the ICJ. However, a State may take up the case of one of its nationals and invoke against another State the wrongs which its national claims to have suffered at the hands of the latter; the dispute then becomes one between States. Or, a lawyer/corporation could possibly lobby the federal government to pursue a case as a nation in front of the ICJ.

The ICJ in the Twenty-First Century

An ever-increasing legal field in the twenty-first century that the Court will be involved in is environmental law.  Specifically, the Court will likely be faced with environmental issues involving pollution, global warming, and protection of endangered species. As of this writing, Australia has commenced proceedings before the ICJ against Japan for “breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling (ICRW), as well as its other international obligations for the preservation of marine mammals and marine environment.”

As an exponentially growing world population compounds environmental issues brought by human consumption and waste, environmental concerns may become a central concern for the Court. Among other environmental concerns for the Court are chemicals used in agriculture. In another case currently pending, Ecuador claims that Columbia is conducting “aerial spraying of toxic herbicides at locations near, at and across its border with Ecuador.” In its Application, Ecuador states that “the spraying has already caused serious damage to people, to crops, to animals, and to the natural environment on the Ecuadorian side of the frontier, and poses a grave risk of further damage over time.” These environmental issues pertaining to nations, their neighbors, and the planet as a whole, will certainly recur before the Court as the twenty-first century progresses.

Natural Resources and Commerce: A Lesson from Easter Island

A prime example of countries competing for natural resources is the story of Easter Island. Centuries ago Easter Island was a fertile island teaming with natural resources. With the passage of time, an expanding population consumed or wasted much of those natural resources. As a natural result, the islanders fought amongst each other for the dwindling resources. Similar battles but on a macro level are likely to occur as populations increase and natural resources dwindle in a global environment.

As the population of the world has passed the six billion mark, a global legal body such as the ICJ will be uniquely positioned and necessary to help prevent conflict between international neighbors avoid situations like the dispute over Easter Island resources. Undoubtedly, the issues surrounding territory and natural resources will be a continued issue of litigation at the ICJ.  As the world population increases, the need for efficient allocation of national resources grows increasingly urgent.

Referring back to the discussion of the water crisis, the ICJ has proven well-equipped to decide intergovernmental water issues by deciding Hungary v. Slovakia. Hungary accused Slovakia of not fulfilling its obligations under an agreement concerning a dam on the Danube River. Hungary claimed Slovakia’s actions impeded their water rights to the Danube, while Slovakia claimed it was within their rights in the agreement to build the dam for production of electricity, flood control, and improvement of navigation. The Court held that the construction of the dam could continue, but both States had to negotiate in good faith in order to ensure the achievement of both of their rights and objectives under the agreement.

Space Law: The final legal frontier?

An interesting emerging sub-field of international law is extra-terrestrial law—the law of outer space. With the volume of both national and private space activities growing at an unprecedented level in recent years, it will be necessary for the Court to expand its role accordingly. The legal questions about outer space law for the Court involve issues such as “state sovereignty and jurisdiction, torts, contracts, environment, anti-trust (which is of special relevance to the United States), taxation, and intellectual property.” Because of the paucity of litigation and laws governing outer space, several legal scholars suspect the ICJ will be at the forefront of these questions in the future.

Conclusion

The ICJ’s docket has grown rapidly over the past few decades. As nations grow in population, resources will naturally become strained, and international conflicts will accordingly increase. It is important for practicing attorneys and future lawyers to understand the role of the ICJ in world legal problems. We need to understand the complex drivers of global change. The first President of the UN probably said it best when he said, “I would not venture to assert that the Court is the most important organ of the United Nations; but I think I may say that in any case there is none more important [emphasis added].”

Dan Naranjo would like to thank various colleagues and friends who made this paper possible. He would also like to thank Justin Jackson, J.D. candidate 2014, for his assistance.