The Crisis of the Existing Global Paradigm of Governance and Political Economy

This article seeks to underline the central challenges to world order that are outcomes of our current system of global, social, power and constitutional processes. The article outlines these major problems which it is suggested represent a crisis for the future trajectory of human survival and well-being. The paper then uses the problem of the emergence of transnational criminal activity in order to underline the limits of the current global paradigm of governance. In effect, in the criminal law context the jurisdiction of sovereign states to attack the problem of transnational crime is hedged with severe limitations. The most important of these limitations is the fact that the jurisdiction over crimes by sovereigns is limited by the territorial character of the definition of sovereignty. Thus a sovereign has a limited capacity to control and police criminal activity whose main locus of operation is generated outside of the territorial reach of the sovereign state. This essentially means that the element of global governance generates a juridical vacuum which permits organized crime to flourish outside of the boundaries of the state but at the same time, having the capacity to penetrate and corrupt the social, political and juridical processes of the sovereign state. The article explores the effort of the UN to provide some form of response to this crisis in the form of an international agreement.

The most important global expectation about global governance is reflected in the Preamble of the UN Charter and it is authorized by “we, the people” of the earth/space community. That expectation includes the high priority humanity gives to international peace and security; the reaffirmation of faith and fundamental human rights, in the dignity and worth of the human person, and equal rights for men and women and nations of whatever size. It also underscores the importance of the global rule of law as well as the promotion of social progress, better standards of life, and expanding freedoms. That is the promise. However, at the practical level the institutions of global governance have been to a large extent a captive of their own history. That history emerged with scholars in the late 1500s and early 1600s (Bodin and Hobbes) and later was given a juridical imperator in the Treaty of Westphalia (1648). In the early 19th century Bodin, Hobbes, and Westphalia were given a powerful juridical imprimatur when John Austin published his influential book The Province of Jurisprudence Determined. In effect, from Bodin to Austin we have the developments from scholarship, to political agreement to creation of a jurisprudential foundation for the notion of the territorially organized sovereign state. The sovereign state became the currency of international relations, diplomacy, international law, as well as a powerful limitation on the force and efficacy of both international law and constitutional law.

In the 20th century the sovereignty idea contained no obvious constraints that could limit a drift into a global war (WWI). Moreover, the creation of the League of Nations system and the Covenant of the League was itself limited in a context of facilitating international peace and security by state claims to sovereign absolutism. At the end of WWII the victorious powers adopted the Charter of the United Nations. The Charter reflected ambiguity of its authority resting in “we, the people” and the residual strength and ambition of sovereign state powers, claiming frequently the competence to trump activities challenging their ambitions and interests. The current paradigm is thus responsible for generating problems that now seem to challenge the survivability of humanity, as well as undermine the prospect of global policy and practice that moves in a trajectory that secures humanity’s wellbeing for the future. We list several of the most obvious scenarios where the state/sovereign-centered paradigm is limited in its capacity to respond effectively to the crisis of humanity’s future survivability and wellbeing. These are listed as follows:

1. The crisis of the global war system. States no longer have an effective monopoly on war making. States have been involved in privatizing the functions of the military with unforeseeable consequences. There continues to be the emergence of mercenary-like forces for hire in the global environment. The proliferation of the flow of arms and armaments in the global arms market remains significantly unregulated. The existence of weapons of mass destruction (nuclear, chemical and biological) still represents a major crisis regarding the acquisition of the technologies and assets of these weapons systems falling into the hands of terrorists groups or organized crime cartels.1

2. The growth of civil society deviance may threaten world order when it develops into forms of apocalyptic terrorism, state terrorism, organized crime, human trafficking, global drug production and distribution, and trading in small arms and/or components of mass destruction.

3. Global political economy of radical inequality. Conventional economic theory seems to lead a global race to the bottom. More wealth is produced than ever before and greater inequality is produced as well. Greater wealth concentrations often result in plutocracy which favors the wealthy and greater alienation for the impoverished. What is needed is an economic paradigm that is not confined to a single state or sovereign but a paradigm that functions within the context of a global, social and political process and responds to the problems that emerge from this process from a global inclusive perspective.

4. The depreciation of a human right to development, a depreciation that undermines the value potentials of human capital for the improvement of the human prospect. Clearly, the right to development is a human right of global dimensions and requires a global solution to effectively respond to it. The solution here is beyond the parochialism of national sovereignty.

5. The importance of a viable ecosystem for the survival of humanity requires policy making that is beyond the nation states’ competence. In short, global warming and climate change are matters of inclusive global concern. All must participate because all have a stake in preserving a viable ecosystem for all.

6. Human demographics and human survivability. The radical population increases raise the question of whether food security and accessibility to clean healthy water may be put at risk when earth’s population exponentially increases. Demographic growth may well challenge eco-social and economic capacity of the earth to indefinitely sustain such increases without important radical innovations in birth control, food production, and water conservation. These issues transcend any particular nation state.

7. The global capacity to respond to natural catastrophes (tsunamis, earthquakes, hurricanes, asteroid collisions). It’s now well accepted that such catastrophes require global action because the capacity of any particular sovereign is limited in this regard.

8. The global health crisis (AIDS, malaria, TB, Ebola, etc). It is clear today that any emergent global pandemic will be beyond the capacity of any single sovereign state. Such health threats are really beyond the current paradigm.

9. The global crisis of human rights and humanitarian values. Notwithstanding the vigorous advocacy for the promotion and defense of basic human rights, it is still the case that we have a great human rights crisis on the planet. At the heart of this crisis is the muted claim of unlimited sovereign absolutism. The human rights crisis cannot be solved exclusively within the sovereign state. It is a global problem that implicates the global authority of “we the people.”

The issues listed above represent a crisis for global humanity and as well underline a weakness of the existing paradigm which is a state sovereign dominant paradigm. This underscores the need for new and fresh thinking, nothing short of a new paradigm for understanding and responding to the global crisis of our time. To provide a more detailed explanation of the limits of the state sovereign paradigm we provide an overview of the background and possible value for humanity of an important UN initiative to enhance a global paradigm of governance with regard to a particular problem that defies the exclusive authority of the sovereignty approach. In this initiative we underscore the effort to strengthen the global rule of law, as an indispensable element for a new paradigm of global governance.

The initiative that we focus on is the Convention Against Transnational Organized Crime. In general, this instrument defends the rule of law precept as a stabilizing and transformative component of a world order that honors and respects the dignity of all the people. How then does the UN convention against Transnational Organized Crime,2 in general, impact on the major themes just specified? What does the convention have to do with the rule of law and the earth-space community?

Winston P. Nagan: Chair of the Board, World Academy of Art and Science;
Samuel T. Dell Research Scholar Professor of Law;
Levin College of Law, University of Florida
1 Among the most important global organized crime cartels is the Mafia. The role of the ‘mafia’ in Sicilian political culture and criminal deviance is well described in James Fentress (2000) ‘Rebels and The Mafiosi: Death in a Sicilian Land­scape’. The book is also favorably reviewed by Peter Robb, ‘Family Business’, in the New York Times Book Review, 7th January, 2001, at 23. The term ‘mafia’ appeared in the national vocabulary (of Italy) in 1885. According to Robb, ‘Mainland Italy’s alarmed discovery of how deeply rooted organized crime was in Sicily was part of a wider shock experienced by bourgeois northern Italians when they began to discover the hidden culture of southern Italy and the dramatic lives of their new fellow citizens.’ Ibid. at 23. About the historic character of the mafia: it is according to Fentress and Robb an ‘. .. old form of criminal exploitation of the Sicilian people by a small number of their fellows.’ An important contemporary insight into the Palermo renaissance lies in the political fact that ‘[a] strong indigenous civil culture today is implacably opposed to the ways of the Mafia’. The re-establishment of the mafia in Sicily as a potent ‘political’ and criminal syndicate is partly due to the conduct of the United States Army in 1943: ‘Mussolini’s fascist regime had effectually brought the Mafia under state control and many of its leaders were imprisoned.’ As Robb indicates, ‘Mafia opportunism had worked brilliantly in 1943 by serving the American invaders and regaining for the Mafia overnight all the territorial control it lost under fascism. Only in Sicily did Cosa Nostra perfect that parasitic vesting of criminal interests in the body politic that has been a model for the rest of the world’s organized crime.’ Ibid. Finally, criminal networks like Cosa Nostra do ‘control a significant part of the global economy. .. ’, they ‘impinge in terrible ways on many millions of lives, and they all follow Cosa Nostra’s example of growth through political alliances’. On the Palermo renaissance, see ‘New Ways To Fight Back’, from CIVITAS, Palermo World Congress: Civic Education Works (1999), palermo/cived.htm. See also Umberto Santino, ‘Law Enforcement in Italy and Europe Against the Mafia and Organized Crime’, CSD. http://www.
2 United Nations Convention against Transnational Organized Crime, 55th Sess., Agenda Item 105, UN Doc. A/55/383 (2000) ( hereinafter the convention).

Pages: 1 2 3 4