Activating World Law: A Unique Approach to the Problem of Origins involving the International Criminal Court and the Provisional World Parliament
Glen T. Martin
Professor of Philosophy, Radford University,
Secretary-General, World Constitution and Parliament Association
In The Concept of Law, philosopher of law H.L.A. Hart identifies the source of legitimate law as a “rule of recognition” commonly accepted within a society that allows citizens to recognize when an authoritative and legally binding law or edit has been issued. This rule may involve a founding document, a set of recognized customs, the functioning of certain institutions, or other sources for recognizing legitimate laws. A central problem that world federalists face, of course, is the problem of origins. Every rule of recognition must begin from a situation in which it is not yet recognized. A revolution occurs, an old order crumbles and must be replaced through the spontaneous action of a few leaders, a coup takes power and abolishes the legislature, a monarchy is seen as no longer legitimate and must be replaced by democracy. In all these instances and more, a constitution must be written or an institution constructed that provides a rule of recognition for future laws, but in the absence of democratic procedures for writing or constructing such authoritative sources of law, something must simply be begun.
On the planetary level, the problem is similar but clearly more difficult. Since the world has no institutions that can create binding world structures beyond the level of nations, from whence will appear a rule of recognition for world law? The currently accepted macro unit of government is the nation-state. Its self-definition of being sovereign implies both internal and external autonomy, that is, the recognition of no binding authority beyond its borders. In a revolutionary situation within nation-states, different factions may vie for general recognition by the population and for their rule or institutions to function as a rule of recognition for authoritative laws. But there can be no such situation on the planetary level given the fragmentation of the world into approximately 193 autonomous units called nation-states.
The fact that sovereignty is being eroded by multinational corporations (often with greater wealth and power than some of the nation-states that host them), and the fact that the World Trade Organization’s imposition of binding trade rules also erodes traditional sovereignty, does not bring the world closer to democratic world law. Just the opposite, since both corporations and the WTO tend to be undemocratic in the extreme, more often than not violating many of the principles set forth in the U.N. Universal Declaration of Human Rights. If the world is left to evolve toward different forms of governance through the actions of those who now wield tremendous undemocratic power, then the result will be anything but planetary democracy, peace, freedom, or prosperity.
While some federalist movements have debated for decades over the possibilities of calling a world constitutional convention or other means to overcome the problem of origins, the World Constitution and Parliament Association simply went ahead and did this. Beginning in 1958, it put out worldwide calls for world citizens to participate in the writing of a Constitution for the Federation of Earth, continually communicated with the hundreds who responded, and called them together in four constituent assemblies in a prolonged process of writing and revising and voting on the Earth Constitution. These assemblies met in Innsbruck, Austria in 1968, Interlaken, Switzerland and Wolfach, Germany in 1977, Colombo, Sri Lanka in 1979, and Troia, Portugal in 1991. Article 17 of the resultant Earth Constitution gives the democratic requirements for official ratification and the activation of three operative stages of democratic world government. However, even prior to this ratification, Article 19 gives the citizens of Earth the authority to begin provisional world government while the final ratification is still pending.
With regard to the problem of origins, no origin is ever legitimate when it is first initiated because no rule of recognition exists in those circumstances for legislating binding laws. There always must be a beginning outside the accepted system. After the American Revolution, begun in 1776, had been won, the former thirteen colonies loosely affiliated under the Articles of Confederation. Each former colony remained substantially a sovereign nation able to make its own foreign policy, etc. This system was seen not to work inspiring a group of leaders to meet in Philadelphia and develop a federal constitution binding all the former colonies into one, while preserving some autonomy of internal government for each. There was no precedent and no mechanism by which this new constitution could be considered legitimate. Nevertheless the problem of origins was dealt with simply by going ahead and doing it, while building into the new Constitution the criteria for its ratification by the member states. This is precisely what the framers of the Earth Constitution did but with one substantial difference.
Given the proportionally greater difficulty of uniting a planet of differing languages, cultures, religions, and nation-states under a single constitution, the framers wisely allowed for the development of provisional world government while the Constitution was being promoted for ratification under Article 17. The central way that provisional world government has been developed to date has been through sessions of the Provisional World Parliament (PWP). These sessions began in 1982 in Brighton, England and have continued through New Delhi, India (1985), Miami Beach, Florida (1987), Barcelona, Spain (1996), Malta (2000), Bangkok, Thailand (March 2003), Chennai, India (December 2003), Lucknow, India (2004), and Tripoli, Libya (2006). There have been some 38 World Legislative Acts passed by these sessions of Parliament, covering disarmament, nuclear issues, environment, economics, water resources, peacekeeping, intellectual property rights, etc. By an official decision of the Parliament, this provisional world legislation is not considered binding on the final world parliament that will be activated with the official ratification of the Earth Constitution. However, it serves as a guide, a beacon, and a model for emerging world law.
Not only this, the Parliament has acted so as to interface with other venues of developing world law, themselves facing the same problem of origins. Specifically, it has substantially adopted a variety of world statutes developed by the Assembly of States Parties (ASP) behind the movement for an International Criminal Court (ICC). The Parliament has reconstituted and integrated the Rome Statute for the International Criminal Court as World Legislative Act #20 for a World Court Bench for Criminal Cases. It has also adopted and modified Rules of Procedure and Evidence developed by the Assembly of States Parties for the ICC as World Legislative Act #24. In addition, the Parliament has adopted the International Statute on the Rights of the Child, reconstituting with greater strength the original U.N. Convention on the Rights of the Child, as a necessary legal basis for creating a World Juvenile Bench that recognizes the generally accepted principles of juvenile law.
The problem facing the Convention on the Rights of the Child as well as the Assembly of States Parties in developing an International Criminal Court is that these have been so far developed within the framework of sovereign nation-states and hence can function as no more than voluntary treaties from which nations may withdraw if they please. The Rome Statute of the ICC was written under this assumption. The original ICC statutes, therefore, rather than empowering the Court for issuing subpoenas and requiring witnesses and evidence as commanded by enforceable law, could only “request” such things, since the ICC is dealing with possible crimes committed within sovereign nation-states which are party to the ICC treaty. The ICC is a major step forward towards world law applied to individuals (as opposed to international law that applies to nation-states), but it still faces the problem of origins in taking the leap to real law, enforceable over individuals.
The Provisional World Parliament has changed only that wording that degrades the statutes of the ICC to compromise with the treaty system of sovereign states. It assumes the power of mandamus, the real power of a legitimate court to summon witnesses, order arrests, and compel testimony. The World Constitution and Parliament Association, from its interim offices at the New Humanity Centre in Kalamata, Greece, is working to integrate the work of the ICC with the work of the PWP that would substantially strengthen both initiatives. The PWP is without the significant resources and connections possessed by the ICC (which has a 50 million Euro internal budget). Yet the ICC is still without an institutional framework transcending the system of nation-states that can provide a rule of recognition for world law enforceable over individuals. If the ICC were to draw on the Earth Constitution and the work of the PWP for its authority and legitimacy, the cause of world federalism would be advanced immeasurably.
Both initiatives can further contribute to their legitimacy and mitigate the problem of origins by drawing on the Universal Declaration of Human Rights: Articles 7 (for equal protection under law), 21.3 (for the voice of people via universal suffrage as the authority of government) and 28 (for a guaranteed universal social order). One can reasonably argue that multi-cameral world parliament is urgently required and already legal, since enforceable world law is recognized as a human right in this Declaration. Nevertheless, the problem of origins can be more effectively dealt with through cooperation of the ICC and the PWP.
This project of integration of the ICC with the work of the PWP, therefore, is an intra-governmental project to recognize the Secretariats of the Assembly of States Parties (ASP) for the International Criminal Court and the Provisional World Parliament of the Earth Constitution in synergistic conjunction with one another. The World Constitution and Parliament Association is working to show to the ASP Secretariat and to the ASP itself the urgent necessity of integration in order to be most effective and also to be in legal compliance with Universal Declaration of Human Rights Articles 7, 21.3 and 28. Integration of these complementary efforts to overcome the problem of origins and initiate effective rules of recognition for world law will allow a World Court System to rapidly develop more assertive, just, and effective measures to prosecute individuals who commit genocide, war crimes, or crimes against humanity. With this cooperation, the authority of the Court can more readily be extended to include crimes committed anywhere by suspects of any nationality, whether a party to the ASP or not, and to include even unthinkable but real crimes against humanity such as finance and funding of nuclear weapons and other weapons of mass destruction.
The development of an effective world court system under the ICC in tandem with this fledgling world parliament operating provisionally under the originating document of the Earth Constitution could well form to embryo of a genuine world court system in conjunction with the embryo of a genuine world parliament system. Here we have two nascent branches of a future democratic world government that, if working together, could create the synergy necessary to activate the third branch of effective government: the executive (administrative and enforcement) branch. Time will tell whether this initiative will be successful. However, it is a vitally important initiative, creatively and actively attempting to deal with the problem of origins in ways that can beat the race against time in which humanity faces immanent possibilities of global tyranny, planetary environmental disaster, or nuclear holocaust.
 Hart, H.L.A., The Concept of Law, Oxford University Press, 1964, Ch. VI, “The Foundations of a Legal System.”