The UN and Japan in an Age of Globalization:
The Role of Transnational NGOs in Global Affairs

Stephen Toulmin

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7. Transnational Judicial Institutions

The peripheral institutions of the UN have similar limitations, arising from the fact that the UN is intergovernmental not transgovernmental, international not transnational. The World Bank is a good example. Its statutes prevent it from making loans directly to agricultural cooperatives or other NGOs. All of its funds have to go via NSGs for allocation within a country, and some of them fail to reach their intended beneficiaries, being diverted to pay for Mercedes cars for the State elite. Yet, as the Grameen Bank found in Bangladesh, local agricultural cooperatives (run by women) default on their 1oans at a markedly lower rate than regular commercial firms, let alone Governments. This discovery has, however, been frustratingly slow to influence thinking at leading international financial agencies9.

For NGOs in the field of human rights, however, the crucial global institutions are judicia1; and there the weaknesses of a purely inter-governmental system are flagrant. The International Court of Justice, e.g., adjudicates only disputes between States: more exactly, disputes between States that allow it jurisdiction in the case in question. In the Nicaraguan civil war, Nicaragua tried to sue the US Government over the CIA mining of the harbor at Corinto; but the US Administration rejected the jurisdiction of the Court, so no rulling could be put into effect. This leaves no provision for actions in which individual citizens, or classes of citizens, seek to press claims against Sovereign States: specifically, claims in which NGOS like Amnesty and Human Rights Watch publicize offenses by State authorities against their own citizens.

As matters stand, indeed, Sovereign Immunity - a product of the Westphalian era - stops individuals bringing suits in the domestic Courts of their own country; and the Cartel of inter-Governmental institutions stops them doing so under International Law. Even less are there tribunals in which transnational humanitarian agencies can bring "class action" suits for groups of citizens who are penalized, or discriminated against, matters of International Law, by the Government of a State. Whether as individuals, as classes, or through NGOS as guardrans Citizens have no "standing" in the tribunals responsible for adjudicating matters of International Law.

In the judicial realm, in a word, we conspicuously lack trans-national tribunals, to determine the rights of Citizens against Nation State Governments, and to hand down rulings enforceable for a Citizen, and against a State. However much NSGs may now concede their economic interdependence, few of them would think of surrendering to outside Courts any right of adjudication between the State and its Citizens. Sovereign Immunity is the last refuge of Leviathan, the last appeal of rulers who remain above the Law, so above the rights of their own Citizens - and who claim the right to do so in the name of national autonomy.

One rare exception is that created by the Treaties establishing the institutions of the European Union, e.g. the European Court of Human Rights. As before, these treaties imposed on Member States voluntarilv accepted limitations; but by now there is a body of practical law, from cases in which Member Governments were held by the Court to have contravened individual rights entrenched in those Treaties10. If such problems face unquestioned Citizens of European States who seek protection from the Court of Human Rights, how much harder is it for Residents who are unreasonably kept from Citizenship. If these issues of Standing were resolved, a new field of action will open up for the transnational humanitarian NGOs that now operate by the Politics of Shame: rousing public indignation, and embarrassing NSGs that find themselves held in scorn across the globe. For who would not prefer to see Nation State Governments exposed to enforceable judicial orders to right the wrongs they do their citizens and residents11?

Human rights is not the only field that can profit from a transnational judicial forum or tribunal. In due course, scientific consensus may be achieved about environmental issues, and generate a world wide Code of Environmental Practice. Respect for this Code could become the subject of a global system of administrative law: opening to NGOs a chance to initiate actions bcfore a World Environmental Court, for injunctions requiring a State to change its the laws and practices, as a threat to Nature and public health in their own or neighboring countries.

Does this idea at present sound fanciful? If so, let me remark that the procedures for such a system are already in place and operative in the United States of America, where practices and laws that survive challenge in the system of State Courts are open to review in the Federal Courts, and can be struck down there. National Governments that resist the adoption of Federal institutions on a European scale will (needless to say) at first reject any such Federal jurisdiction; but, given the impotence of State borders in the face of a Chernobyl disaster, the obstacles to a global jurisdiction of environmental and public health issues may not for long remain insuperable.

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