International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
March 2007, Volume II, Issue 2

In Review:
New Publications on International and Comparative Law

Global Governance Reform

Global Governance Reform: Breaking the Stalemate
Edited by Colin I. Bradford and Johannes F. Linn. Brookings Institution Press. 2007

Subscribers to the International Judicial Monitor might pose the question: ‘where is the judiciary?’ if they read this recent offering from the Brookings Institution Press on the important subject of global governance reform. This short (131 pp) book of ten essays, edited by Colin I. Bradford Jr. and Johannes F. Linn, both senior fellows at the Brookings Institution, is divided into two parts, one dealing with international institutional reform, the other with global governance reform. The essays in neither part mention judges, judicial institutions, courts, or rule of law issues. As discussed below, these omissions are serious.

This compilation of essays resulted from a series of seminars conducted by the Brookings Institution in response to an editorial in the Washington Post titled “Globalization’s Deficit” in January, 2006. The first part of the book examines successively the International Monetary Fund (IMF-two essays), the World Bank and the United Nations. The second part includes discussions and some suggestions for reform of the “Summit” (the G-8), the Bank-Fund Ministerial Committees (for the IMF and World Bank), global health agencies (primarily the World Health Organization (WHO)), and the global environmental governance regime. A final essay summarizes the conclusions derived from the various commentaries and the implications of various reform suggestions.

The commentaries are short. The essay dealing with the World Bank is only nine pages, surprising given the recent controversy about the Bank president, and many challenges to the Bank’s modus operandi, with its heavy bureaucracy and large number of employees. The essay dealing with the United Nations is only 12 pages, again surprising because of all of the attacks that institution has undergone in the last six years. And the seven page essay on global environmental reform is astonishingly brief, considering all of the worldwide attention that global warming has generated since the advent of the new millennium. The two essays on the IMF offer the most detailed analyses and specific suggestions about reforms within the international monetary system. However, in fairness, some of the essays, including the environmental one, do not attempt to offer detailed specific prescriptions for reform, providing instead new “directions” for reform efforts.

The first sentence of concluding essay states:
The principal concern of this volume is that the international system comprising both international institutions and global summit-level steering groups is inadequate to meet the challenges of the twenty-first century.

Returning to the original question posed at the beginning of this review, and considering the “principal concern of the volume,” why is there no treatment of the International Court of Justice? Why is there no examination of other international institutions that deal with international conflict, dispute resolution and the administration of international justice, such as the International Criminal Court, and the several international criminal tribunals that deal with specific conflicts, such as the ones in the Former Yugoslavia, Rwanda, Bosnia and Sierra Leone?

One might say, in response, that these institutions are functioning the way they were originally intended, that they are functioning well, and that there is no need for improvement or “reform” of the international judicial “system” in its various manifestations. But all of these institutions and others not mentioned are influenced in one way or another by the same globalization pressures of the twenty-first century that affect the international legislative and executive bodies treated in the book. Moreover, what institution, either international or domestic, exists that cannot in some way be improved in the way it functions, especially in light of the passage of time and changed circumstances?

The fact is that international judicial institutions and dispute settlement bodies, like their counterparts in the other “branches” of international governance, could benefit from some careful scrutiny and evaluation of their roles in the world in light of the globalization that inspired the Washington Post editorial early last year. For instance the International Court of Justice, designed to hear cases involving disputes between states, but not criminal matters, was recently forced to render a decision in a case involving genocide (Bosnia and Herzegovina vs. Serbia and Montenegro, decided February, 2007). The issues in the case were primarily international criminal ones. This kind of case obviously puts strains on the World Court’s competence, and raises the question of whether such cases might be better assigned to another existing or new tribunal.

There is also the question of the desirability of expanding the World Court’s advisory jurisdiction, so that it could offer opinions in cases arising from organizations or circumstances other than United Nations organs. There is the issue of the length of time involved in resolving most cases heard in international tribunals, both civil and criminal. Finally there is the question of the desirability of creating new tribunals that could be assigned to resolve international disputes relating to health or environmental issues and other areas of international activity where conflict arises (this possibility is mentioned in the essay on environmental governance). Given such a sampling of reform issues relating to the judicial “branch,” there is no reason that it should be immune from the same kind of scrutiny engaged in by the authors of the essays in this book. There would have been plenty of “grist” for the discussion mill had the Brookings leaders in this effort had the foresight to include judicial and court issues on its seminar agendas.

I suspect that the ignoring of the judiciary is a typically and frequent oversight by persons who are not regularly in contact with law and legal systems. I remember distinctly watching a television news program several years ago when a senior official of the Bush administration was addressing the International Republican Institute in the U.S. He congratulated it for the work it was doing internationally in promoting democracy in other parts of the world. The official reviewed the work of the IRI in promoting stronger legislatures, electoral systems, and executive branches. Not one word was said about court systems, or judges, or the “rule of law.” This particular government official was not a lawyer. The omission by this particular person, like so many others, was probably due to the fact that many persons, including high government officials and international experts, simply do not think in terms of legal systems, or judges, or courts, as playing a significant role in the building of democracies and the protection of their citizens, or in developing an international governance order.

The editors of this volume, perhaps unconsciously, identified the problem as one of parochialism:

The process [discussions during the seminars] revealed the
parochialism of each microcosm and the insularity that
can result from focusing exclusively on what goes on inside
a single domain and giving limited or no attention to the
porous parameters. It is the interfaces between domains
where many of the world’s challenges define themselves.

Whatever the reason for the omission, legal and judicial organizations are as much a part of, and important to, the family of international organizations involved in international or global governance as any of the institutions treated in the book. The whole idea of the “rule of law” rests upon them, and they certainly deal with many issues arising from the “interfaces between domains.”

Europeans have not failed to give judicial institutions a major role in their regional “international” organizations. Consider, for example, the very important role, and recognition thereof, that the European Court of Human Rights plays in the activities of the Council of Europe. Consider the major role for, and effects of the decisions of, the European Court of Justice within the European Union and its member states.

In a sentence in the first essay dealing with the IMF, the author states:

In a globalized world, the actions of one country – indeed
of individuals in one country – can affect every other
country and the individuals therein, whether the actions
involve economic activity, the environment, water use,
public health, or a host of other areas.

That sentence, reflecting as it does one of the main reasons for the Brookings series of seminars, should have provoked some concern and discussion at them that would have yielded an additional essay for the book about the growing international system of courts and justice. Human conflict and human rights issues are so much a part of the international scene and the concern of global institutions that not offering an essay on the role of courts and judges in resolving the first and protecting the second is a fundamental flaw in an otherwise useful publication.

However, even though this book ignores judicial institutions, and despite the brevity of most of its essays, it will be useful to the student of international affairs as an introduction to the whole issue of global governance reform in a critical time of the globalization process.

By James G. Apple, Co-editor of the International Judicial Monitor and President, International Judicial Academy

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© 2007 – The American Society of International Law and International Judicial Academy.

Editors: James G. Apple, Veronica Onorevole and Andrew Solomon.
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