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Legal Issues of Globalization

By transforming borders and de-territorializing behavior, globalization raises a host of questions and concerns fundamental to law. Many commentators argue that international law and national law are no longer adequate categories for the totality of "law" today, and offer an array of new concepts such as transnational law, global law, global legal pluralism, etc., to help us understand law in the global space. This paper offers one view of how concepts such as "transnational law" and "global law" stand in relation to one another and to what has been traditionally understoodas "national" and "international" law, employing the different dimensions of law as process, output and structure. The paper tries to analyze the legal issues emerged aftermath of the globalization and the solutions provided thereof through different laws.

The development of the "global society" - also referred to as "globalization" - brings about fundamental changes not only in the economy, in society, and in politics but also in the law. These changes affect the areas subject to legal regulation. The technologies of communication and travel, the expanded economic areas, and the political opening of states lead to increases in cross-national communication, international dispersion of production systems, transnational trade, global markets, mobility of people and businesses, and offshore investment. These processes have both desirable, socially advantageous effects as well as effects that are damaging to society. The dissemination of newspapers is simplified as is the dissemination of hate speech; trade with legal goods profits as does trade with illegal goods; mobility of tourists and workers is facilitated as is that of unwanted persons. All of these processes are subjects of laws that are designed to create a framework conducive to international exchange and at the same time to minimize risks. Due to the increasing transnationalization of activities subject to legal regulation, legal questions that transcend borders arise more and more frequently.

This is true of all three major branches of law. In the private law context, parties in different countries sign contracts of sale, multinational enterprises form competition-limiting cartels that affect the world market, and - through the dissemination of files in the Internet - copyright violations occur in a multitude of states simultaneously. Similarly, public law is confronted by cross-border cases when emissions damaging to the domestic environment are released from foreign territory, foreign suppliers offer gambling via the Internet, multinational concerns divert profits to subsidiaries located in offshore tax havens, and financial supervisory authorities control the sale of foreign financial products. In criminal law, corresponding challenges arise when, in the prosecution of transnational terrorism and global organized crime, cross-border investigations must be coordinated and access to persons or evidence abroad obtained. In the area of international criminal law, too, new problems arise when armed groups attack foreign territories rather than their own country. It is a seamless transition from cross-border activities, which take place in the territories of two or more countries, to activities of global magnitude, whose effects are felt all around the world and which can only be solved by the joint efforts of the world community of states. As a result of this increasing need for cross-border regulation, the traditional law of the nation-state is confronted more and more frequently with "transnational" activities that affect several states, engender legal decisions that must be enforced in foreign territory, and raise issues that can only be solved on a global level.

If globalization is the main paradigm of our time, then a chapter on globalization and law could also be entitled, simply, the law of our time. Few, if any, areas of law are not—at least potentially—fundamentally impacted by globalization. In reality, of course, the impact of globalization on legal thought has, so far, been more limited. That has various reasons. A first reason is that globalization, although (or perhaps because) it is generally accepted as the new paradigm of society, has remained a remarkably vague concept in general discourse. The fundamental debates over globalization of the 1990s more or less petered out, without leading to a clear consensus. A second reason is that legal thought has so far reacted to globalization not with a true paradigm shift but instead by more and more inapt attempts to adapt the methodological nationalism that has provided its paradigm for the last two hundred years or so.

The same can still be said about much of social theory, which also remains within such a state paradigm. Globalization has not, yet, led to a true paradigm shift.A third reason, finally, is that globalization poses interdisciplinary challenges, and interdisciplinary in law and globalization is still surprisingly lacking. on the one hand, many of the conceptual and theoretical discussions of globalization ignore or downplay the law as an important factor (beyond an occasional nod to international law). A widespread understanding of globalization distinguishes three aspects: economics, culture, politics. Law, in the words, is absent. In legal thinking, on the other hand, globalization is often either purely absent (where discussions are purely doctrinal) or appears as a simple idea of internationalization that somehow influences the law. on the other hand, legal theory and doctrine have, until recently, often operated with oversimplified concepts of globalization.

Globalization is loosely defined as "integration and democratization of the world's culture, economy and infrastructure through trans-national investment, rapid proliferation of communication and information technologies, and the impact of free-market forces on local, regional and national economies.

From this definition, one can instantly discern a heightened "connection," or networking, if you will, among nations and peoples through trade, travel, and information exchange. It is an inter-connection that has, in fact, existed for many centuries, but the invention of machines has greatly accelerated the pace of development in these three areas. By the turn of the first millennium, the seeds of globalization had already taken root in the eastern hemisphere, particularly in the lands bordering the Indian Ocean and South China Sea. These were the most dynamic regions in the world at the time, and trade was the primary motivation of the advanced Asian cultures in reaching out to unknown territories. Western civilization, by contrast, was still in its seminal phase. Interaction with the traders was the spark they needed to catch up. It took more than half a millennium, however, before the great thinkers of Europe began to recognize transplanted eastern wisdom.

The Renaissance eventually ushered in rapid development in keeping with the growing population. Explorers from the great western powers of the time - England, Spain, Portugal, France, the Netherlands - reached the remote corners of the Earth, purposely or at times fortuitously, bringing with them not just goods for trading, but also religions and ideologies for mental subjugation, hand in hand with superior military equipment for physical conquest. Yet, despite the shadow cast by such show of force, it cannot be denied that the seeds of globalization, as earlier defined, were starting to take root. The 20th century saw the heightened globalization of services and information. Spurred by the earlier Industrial Revolution and the opening of the frontiers of the United States of America, the West began to overtake the Eastern powers which had been mired in their own concepts of tried and tested greatness vis-t-vis what they perceived to be the modern ways of "hairy barbarians." By the end of the Second World War, the West was dictating the course of world trade, including the way nations ought to behave in conducting it. It was also in the 20th century where several new developments quickened the pace of globalization and strengthened the economic links among countries. one of the most important changes was the diminished transportation costs, made possible by the availability of less expensive oil and the invention of energy-saving devices. Another key development was the emergence of more and more multinationals - the modern symbol of globalization.

While misgivings have been expressed regarding the effects of multinational corporations on the economy and the worker population, especially those in developing countries, a Columbia University economist, Jagdish Bhagwati, states that "studies find that they actually pay a 'wage premium' - an average wage that exceeds the going rate in the areas where they are found, ranging from 40% to 100%." He asserts that foreign corporations with better technology and management practices provide technology transfer, new ideas and expectations and increased competition in the local job market.A third factor that promoted globalization was the creation of international economic institutions - such as the International Bank for Reconstruction and Development (the World Bank), the International Monetary Fund (IMF), and the World Trade Organization (WTO) - to help regulate the flow of free and fair trade and money among nations.

The duties of the 147member WTO, successor to the General Agreement on Tariffs and Trade (GATT), include, among others, administering trade agreements, acting as a forum for trade negotiations, and assisting developing countries. Developing countries had blamed lavish subsidies paid to farmers mainly in rich countries for driving down prices and effectively sidelining them on world markets. Finally, advances in telecommunications and computer technology made it much easier for people to communicate with each other and to conduct their business. Managers, for example, can now easily coordinate the global activities of their organization involving various corporate divisions, clients, and suppliers, without even leaving their headquarters. But globalization has its dark, ugly side too. Events in one country may have serious consequences for ordinary people in another part of the world. In the late 1990s, for example, a long economic recession in Japan spread to Southeast Asia.

Core Legal Issues of Transnational and Global Subjects of Regulation
At first glance, the legal problems caused by transnational activities in the three branches of law appear to be heterogeneous and difficult to categorize. If the crux of the legally relevant changes is analyzed, however, in terms of activities that affect several states, engender legal decisions that must be enforced in foreign territory, or raise issues that can only be solved on a global level, two fundamental problems become clear. In all three major branches of law, the issue is, on the one hand, the transnational applicability of law and enforceability of law in foreign territory below I. and, on the other hand, the need to cope with new global challenges that overwhelm the regulatory capabilities of individual nation states a. Transnational Applicability and Enforceability of Law.

A. Transnational Applicability and Enforceability of Law
Transnational Applicability of Law
The issue of the applicability of a national legal system to activities that exhibit transnational attributes arises in all three major branches of law. In criminal law, the issues are whether substantive criminal offense definitions encompass activities with a foreign nexus (e.g., does Indian criminal law apply to a German company that bribes an official outside of India?) and whether Indian criminal law is applicable abroad (so-called extraterritorial applicability of national criminal law); here, with very few exceptions, German law enforcement authorities can only apply their own national criminal law. However, the mere fact that German law is applicable does not mean that other legal systems are perforce inapplicable; the parallel applicability of another legal system (or systems) may be avoided, in certain cases, by the principle ne bis in idem. In private law, additional conflicts-of-law questions are raised, as international private law requires courts, under certain circumstances, to apply foreign law. According to general rules of international law, states have the authority to prescribe law with respect both to conduct that takes place partially or entirely within its territory (territoriality principle) as well as to conduct that - emanating from the territory of another state - has effect within its territory (effects principle).[2]Due to the numerous globally-applicable systems, it is often the case - in all three major branches of law - that more than one legal system may be applicable to one and the same activity so that not only are provisions regarding the applicability of law necessary but also rules governing conflicts of law, namely, rules that establish the priority of a particular legal system or that eliminate conflicting norms or values.

As legal systems often differ from one another considerably, the choice of applicable law can lead to significant advantages and/or disadvantages for the affected parties. In practice, these differences are exploited - in private law - to avoid consumer or creditor protection provisions (by means of the appropriate choice of law by the contractual parties) and - in criminal law - to evade domestic criminal norms by shifting activities abroad. Examples of this kind of forum shopping include the use by domestic companies of foreign forms of corporate structure (such as the British "Limited"), the offering in the Internet of gambling opportunities based in Gibraltar, the disposal of environmental contaminants in countries with minimal environmental protection standards, and the announcement by financial institutions of their "move" to another country if they are subject to more stringent regulation in their current domicile. Forum shopping is tempting not only for citizens and businesses but also for the state. A recent example of forum shopping by states can be seen in the ships deployed by NATO to combat piracy in the Gulf of Aden that are outfitted with so-called shipriders from adjoining African countries. The presence of ship riders allows for the transfer of suspected pirates to the judicial system of the ship riders’ home countries without an evaluation of the difficult human rights issues posed by such "hand-offs." Thus, clear jurisdictional and conflict-of-laws rules for the various legal systems are necessary, both to insure the continued viability of legal security as well as to prevent abuses of law and forum shopping.

Transnational Enforcement of Law

If it is clear that a particular national law is applicable to a particular activity, the effectiveness of the respective regulations in a global world often depends, additionally, on the concrete enforcement of national norms and especially of criminal judgments in foreign territory. For in criminal law, national criminal justice authorities can, as a rule, only enforce their decisions - such as arrest warrants, search warrants, and judgments - within their own territory. The same is true of decisions of civil courts and administrative agencies. The enforcement of national coercive measures abroad thus requires special legal regulations and implementation procedures.

If the applicability and enforceability of national law in foreign territory is not assured, activity that is criminal in one country may be rendered unpunishable or difficult to prosecute due to the existence of so-called crime havens, consumers may lose the protection of their national law, and workers may be harmed as a result of social dumping. In this situation, the regulatory authority of the nation state is reduced to a race to the bottom.[3]Thus, an important task of the law in the global world is to guarantee that, where necessary, regulations are not only nationally but also transnationally applicable and enforceable.

b. Regulation of Global Challenges
A second core task of law in a global world involves dealing with large-scale challenges in which the issue at hand is no longer merely one of enforcing the interests of individuals from one territory in another territory but rather the issue to be solved implicates the interests of several states. Such issues include protecting security in the face of terrorism and protecting the climate, the arctic, financial markets, international competition, intellectual property in the Internet, as well as the new international institutions and values (whose very existence is a result of globalization), such as the common European currency, the financial interests of the European Union, and the functionality of international tribunals.

Thus, the question arises in all three major branches of law as to the cases for which these kinds of common solutions are necessary and the models and structures with which the solutions can be achieved. And due to globalization not only above basic issues which have been already discussed in the global world but also issues in other fields have also been arisen which are discussed as under:

1. Migrant Workers under International Law and the legal issues
The traditional though questionable distinction between refugees and migrant workers represents an enduring misunderstanding about the reach of international law based on the wrong premise that the former are entitled to international protection, whereas the latter are left to states’ discretion. In tracing the historical origins of this dualism, Rieko Karatani (Volume II Chapter 1) argues that ‘the distinction between "migrants" and "refugees", and the institutional setting which flowed from that division, was inadvertent rather than deliberate, resulting from the desire of the US [United States] to limit the involvement of international institutions’.[4]The author further highlights that the current patchwork of international norms and institutions resulted from the ‘battle’ between the US and the relevant international organizations (ILO and UN) over how to deal with displaced persons in Europe after the Second World War After two international conferences organized at Naples and Brussels in 1951, the US plan was accepted and the Provisional Intergovernmental Committee for the Movement of Migrants from Europe - now renamed the International Organization for Migration - was created outside the UN with a mandate concurrent to those of UNHCR and ILO. Yet the current piecemeal approach of international organizations and legal norms does not mean that migrant workers are outside the ambit of international law. While the ILO prompted the adoption of two specific treaties in 1949 and 1975,[5]the UN adopted in 1990 the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which entered into force in 2003. This last instrument is however not free from ambiguities. As many other international treaties, the Migrant Workers Convention reflects the conflicting issues at stake. As Linda S. Bosniak (Volume II Chapter 2) convincingly demonstrates, the UN Convention is ‘a hybrid instrument, at once a ringing declaration of individual rights, and a staunch manifesto in support of state territorial sovereignty’.[6]on the one hand, it represents the most comprehensive treaty in the field of labour migration. Most notably, it provides a clear-cut restatement of civil, social and labour rights for all migrant workers and their families, including undocumented ones. By contrast, a substantial range of additional rights is granted only to documented migrant workers. They concern family unity, freedom of movement, the right to form associations and trade unions, the right to participate in public affairs of their state of origin and equality of treatment with nationals with regard to housing, educational and health-related services. on the other hand, by excluding undocumented workers from these rights, the UN Convention pays tribute to states’ sovereignty. Such a deference is restated in several occasions throughout the text of the Convention. For instance, Article 79 restates that ‘Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families’, while Article 35 makes clear that States Parties are not obliged to regularize the status of undocumented migrant workers.

Despite the balanced approach promoted by the Migrant Workers Convention, this UN instrument suffers from a poor number of ratifications. It is currently ratified by 48 states, none of them being Western countries. Antoine Pécoud and Paul de Guchteneire (Volume II Chapter 3) explore the reasons behind this low ratification record. They assert that: ‘four types of obstacles play a role: the, sometimes misunderstood, content of the treaty, the administrative capacities required to proceed to ratification, its costs and, most importantly, the political context that plays against granting of rights to migrants’. In sum, ‘the problem is not the lack of international standards but the lack of political will to implement them’.With the rise of populism, ratifying the Migrant Workers Convention appears to be a political risk. It remains however that the refusal of Western states to ratify one of the core UN instruments questions their very legitimacy in promoting human rights. It creates a double standard: while prompt to give lessons on human rights abroad, they do not apply them at home for one of the most vulnerable groups of persons. Western states’ refusal to ratify the Migrant Workers Convention is all the more surprising given that migrant workers are in any event already protected by more general treaties, including most notably the International Covenant on Political and Civil Rights and the International Covenant on Economic, Social and Cultural Rights.

2. Legal challenges thrown up by the forces of globalization in field of trade and investment
Until a few years ago, most of the discussions about the legal challenges resulting from economic globalisation were centred around the multilateral efforts to promote international trade and investment. In this regard, there has been considerable scholarship on the dispute-resolution functions of the World Trade Organisation (WTO) as well as the role of arbitral institutions which facilitate dispute-resolution in the event of commercial disputes between private parties located in different national jurisdictions. There has also been some attention given to the settlement of investment disputes between foreign investors and host governments. Hence, themes related to international trade law and investment law have become quite prominent in legal exchanges as well as education. However, the collapse of several financial institutions in recent times highlights the need for paying more attention to strengthening our domestic legal and regulatory systems before shifting the focus to multilateral negotiations and rule-making. In India, the retention of stringent governmental controls over the banking sector has mitigated the impact of the current crisis, but many export-dependent sectors are feeling the brunt of the same. For a country like ours where financial sector reforms began only in the 1990’s, there is an obvious need to adopt a pragmatic approach towards international trade and investment. There is no doubt that the progressive lowering of restrictions on foreign investment and private enterprise has led to the expansion of several sectors such as banking, telecommunications, information technology, broadcast media and infrastructure among others. The inflow of foreign capital and firms in these sectors has undoubtedly created many jobs, created an environment of competition and increased the choices available to consumers. The expansion of these sectors has also created ‘regulatory gaps’ which have been addressed through the creation of independent regulatory agencies. The task of these independent regulatory agencies is to assist in the formation of policies and devise rules to ensure a fair balance between the interests of service-providers, consumers and the government. Several specialised tribunals have also been set-up for sectors such as telecom and securities regulation to expeditiously decide disputes pertaining to the same.

The separation between ownership and control is a characteristic feature of modern corporations, and hence their functions are dominated by the managers instead of the shareholders. In the pursuit of profits, the managers often make short-sighted decisions which prove to be detrimental to the interests of shareholders, workers and consumers. In such cases, there is a clear governmental interest in regulating the functions of companies by regular scrutiny and disclosure norms. There is also an urgent need for large publicly-held corporations to realise that they are accountable not only to their shareholders and creditors but to several other stakeholders as well. In the context of encouraging foreign investment, the device of Bilateral Investment treaties (BITs) and Free Trade Agreements (FTAs) are now being routinely used to safeguard the interests of firms which invest in foreign countries. Such treaties lay down obligations on part of host governments to ensure ‘fair and equitable’ treatment for foreign investors, favorable tax and regulatory schemes as well as safeguards against unjust expropriation. However, economists such as Joseph Stiglitz have made the point that sometimes the government of developing nations even agrees to unfavorable terms in these investment treaties in order to attract foreign investment. While investors seek protections against unanticipated contingencies, they rarely undertake commitments to contribute to equitable development in the host country. Furthermore, treaties concerning trade and investment tend to be negotiated in an environment of secrecy with limited public participation. Critics also point to the fact that investment disputes between national governments and foreign firms are resolved through methods resembling commercial arbitration, where the orientation of arbitrators from the developed world are often incompatible with the needs and constraints of host governments in developing nations. Double taxation is another legal issue which hampers and effects the functioning of trade, commerce and services in a smooth way.

3. International Law and Migration issues

At first glance, this may not appear to be a major revelation. However, the isolation of IRL from developing human rights norms and institutions has meant that refugees and asylum-seekers have not always had recourse to the full range of rights to which they are entitled. While the 1951 Convention incorporates a collection of important rights, it is in no way comprehensive. Moreover, IHRL is especially relevant with respect to non-State-parties to the 1951 Convention and/or the 1967 Protocol that are otherwise parties to various human rights instruments, as well as its role in developing international customary rules that apply to all States. A better understanding of the cross-fertilization between human rights law and refugee law can also be instrumental in encouraging a more cogent and uniform pattern of interpretation and implementation. The increased role of the judiciary in refugee law represents an important avenue for developing a global jurisprudence.. Besides the obvious political obstacles to a new treaty, she develops two main arguments. on the one hand, climate change displacement ‘is likely to be predominantly internal and/ or gradual, rather than in the nature of refugee flight’.The internal and gradual nature of displacement induced by climate change is confirmed by empirical studies, but this can change in the future and one could counter argue that this does not fundamentally differ from the reality of many victims of persecution who commonly flee initially within their own countries before they cross an international border to find protection abroad. on the other hand, she asserts that ‘it is conceptually problematic and empirically flawed in most cases to suggest that climate change alone causes migration’. This is instead a combination of factors including not only climate change but also poverty, conflict and lack of opportunity. This argument is the most convincing. of course, one can always argue that, even for current refugees, motivations are mixed: while fleeing persecution they are also in search for better opportunities in asylum states, as exemplified by the Mediterranean crisis and the flows of refugees in Europe.

Although she does not detail further the role of human rights law, it can be argued that the principle of non-refoulement under human rights treaties has the potential to provide a substantial protection from forced displacement induced by climate change. The notions of torture, inhuman or degrading treatment are indeed more objective than the one of persecution. They can capture the great diversity of the driving forces of migration induced by climate change and other aggravated factors. In other words, forcible removal towards a state where natural disasters and climate change seriously disturb public order may amount to a degrading treatment. Furthermore, the human rights principle of non-refoulement does not require a particular ground of persecution such as those limitedly enumerated in the Geneva Convention (race, nationality, religion, political opinion or membership to a particular social group). Although the Geneva Convention is not a human rights treaty for both historical and legal reasons, human rights law has radically informed and transformed the distinctive tenets of the Geneva Convention to such an extent that the normative frame of forced migration has been displaced from refugee law to human rights law. As a result of this systemic evolution, human rights law has become the primary source of refugee protection, while the Geneva Convention is bound to play a complementary and secondary role. This assertion is grounded on a comparative assessment of the applicable norms under both refugee law and human rights law governing the three major pillars of the refugee protection regime. First, access to international protection has been profoundly shaped and informed by the subsequent development of human rights law regarding both the refugee definition and the principle of non-refoulement. Second, the same observation can be made with regard to the very content of international protection attached to the refugee status. From this angle, human rights law is broader than refugee law with regard to both its personal and material scope: the former not only applies to refugees but also to asylum-seekers and other persons in need of protection. It further includes a larger panoply of rights that are not guaranteed by the refugee status (such as the right to life, the prohibition of torture and cruel, inhuman, or degrading treatment, freedom from slavery and forced labour, the right to family unity and the right to return). Perhaps more fundamentally, human rights law supplants refugee law even when their respective norms overlap. For instance, the prohibition of discrimination and freedom of association are broader and more protective under human rights law and, as a result of the most favourable treatment acknowledged in Article 5 of the Geneva Convention, human rights guarantees prevail over their refugee law counterparts. Third, a similar process of appropriation can be observed with regard to the implementation scheme of refugee protection.At the domestic level, while the Geneva Convention contains no provision on asylum procedure, human rights law provides key procedural guarantees through notably the right to an effective remedy and the prohibition of collective expulsion. Finally, at the international level, the increasing role of universal and regional treaty bodies compensate for the absence of a truly supervisory mechanism under the Geneva Convention.

4. New Types of Criminality in globalization and related legal issues

German jurist Savigny says that the law is the spirit of community, which means that the provisions of the law must meet the needs of the community and address its problems.

The change in the norms and customs of the peoples lead to changed needs and problems. The multinational companies play various roles in creating international business ethical rules and regulations through pressurizing sates in order to bring changes in its legal systems and legislation for more economic interests . As for the nature of the crime itself, the phenomenon of globalization has reflected its impact in the field of organized crimes and made crimes with extra serious nature. Consequently, as extraordinary openness in trade, finance, travel and communication has created economic growth and well-being, it has also given rise to huge chances for criminals to make their business prosper. The new types of crimes are well organized and the criminals use the latest developed techniques to commit it, such as computers, network systems, information systems, internet and technology of communications . The character of crime has revolutionized considerably in a single generation. Just decades ago, crime was organized in a hierarchy of operations. It was "industrial" in that it included the division of labour and the specialization of operations. This composition extended worldwide, as organized crime emulated the global business [26]. Globalization has not only changed the nature of crimes, but also changed its types and forms, the nature of criminal and victims and venue. Moreover, the means of modern crimes in the age of globalization became more developed than before, and the national legislation is paralyzed in dealing with those types of crimes. According to Findlay, the globalization of the market has introduced more and new forms of opportunity for criminals. Andrea Di Nicola and Alessandro Scartezzini say that "globalization has given those interested in fraud, for instance, the opportunity to act on an international level by taking advantage of the lack of regulations in the commercial and financial markets of some countries" .
The phenomenon of crime has globally expanded due to globalization, which create a legal crisis that need to be addressed. This crisis has made the credibility and effectiveness of the law in an awkward position, which requires concerted efforts not only on the legal level, but the economic and even moral to mitigate the negative aspects of globalization. it has been proven that a crime can be considered as globally problematic issue, especially when it occurs across frontiers, needs no actors and has an accentuating nature all over global nations.

The deficit in finding solutions that equal and commensurate with the challenges of globalization makes criminal law loses its primary function in the protection of both the society and individuals. Prior to globalization crimes are usually committed by desperate, marginalized and poor people, while now those crimes are increasingly committed by well educated persons for the same purposes of gaining financial benefit or for revenge …etc The new types of criminality are described by the American legal scholar Sutherland as "crimes of powerful persons", he says that such crimes are committed by the respectable and powerful persons, such as white collar crimes. Opportunities for new crimes are created by demographic change, economic reform, globalization and technological advancement, but because of globalization "criminals have taken advantage of transitioning and more open economies to establish front companies and quasi-legitimate businesses that facilitate smuggling, money laundering, financial fraud, intellectual property piracy, and other illicit venture

Criminal Jurisdiction in the age of globalization - A legal issue

Virtually every criminal justice system today overlaps, interacts, and intermingles with other criminal justice systems. The traditional model of a single nation-state possessing exclusive authority to criminally sanction those within its borders is being challenged from below by sub-state demands for communal autonomy and from above by international and global assertions of criminal jurisdiction.1It is no surprise that control over criminal justice has become a significant jurisdictional battleground between nation-states and their sub-state and supra-state challengers, for criminal jurisdiction is still considered the sine qua non of state sovereignty.
Opposed to the Sovereigntist position are the Internationalist and Pluralist points of view, which maintain that international and subnational entities, respectively, can and should play a vital role in criminal justice. Internationalists extol the importance of strong supra-national criminal justice institutions—both those that aim to keep national justice systems in conformity with human rights norms, such as the regional human rights courts, and those that directly prosecute and adjudicate the most serious violations of international criminal law, such as the ICC.8 For Internationalists, there are universal norms that demand—or at least recommend—international enforcement mechanisms. From the other end, Pluralists endorse the legitimacy of sub-national community-based criminal justice, especially by and for indigenous peoples and other traditionally marginalized minority groups. Pluralists emphasize that some subnational communities have long traditions of self-governance and can articulate and enforce communal norms more effectively for themselves than the state structures in which they live. For Pluralists, in short, there are common norms that demand—or at least recommend—common enforcement mechanisms.

While demands for sub-state jurisdiction test the nation-state from below, the spectacular rise of international criminal law and its claims to supra-national jurisdiction challenge states from above. International criminal law is a field just now coming into its own, but it is not a new phenomenon. At its beginnings, international criminal law consisted of particular substantive crimes deemed so damaging to world order as to allow for the suspension of the usual territorial model of criminal jurisdiction. Piracy is the most established and venerable international crime, and since at least the eighteenth century, international law has recognized that any sovereign could prosecute piracy regardless of the site of the crime, the nationality of the perpetrators, or the nationality of the victims.35 The first major category of international crime, war crimes, became codified in the late nineteenth century in a series of international conventions,[7]and the war crimes tribunals in Nuremberg and Tokyo following World War II marked the first institutionalized effort to punish state officials via international criminal proceedings.[8]

Reports of the death of the nation-state are much exaggerated. Nation-states will continue to be the primary jurisdictional agents of criminal justice—the principal legislators, enforcers, and adjudicators of criminal law—for the foreseeable future. But sub-state and suprastate challenges to that jurisdiction are not going away, and criminal justice officials and legal commentators must come to grips with the reality of partially autonomous criminal justice regimes at the substate and supra-state levels. The current fights among Sovereigntists, Internationalists, and Pluralists are not going to end in decisive victory for any one vision of criminal jurisdiction. A Bounded Pluralism approach, however, offers a way forward that honors nation-state values while allowing for supra-national and sub-national assertions of jurisdiction.

5. Globalization and human rights - legal issues

Globalization has engulfed whole world under its influence which are visible through its distinct impact on all the aspect of human life. The process of Globalization entails global flow of capital and technologies, development of global institutions, networks of knowledge and information, and global civil societal waves. The impact of Globalization is being viewed positive or negative depending upon the social, political and economic realities of the various countries of the world whether categorized as developed or developing nations. It affects the trajectories of development of countries creating social inequalities and widening the gap between poor and rich nations. Globalization also brings social transformation and affects the rule of law of the countries in a significant way. The discourse of human rights has widely influenced under the orbit of globalization. Human rights violations of vulnerable groups particularly the minorities and deprived sections are at debate on national and international forums. Although the universal application of human rights norms are desired globally but ironically, the issues related to protection of human rights are highly intolerable and complicated on regular basis. The range of demands for protection of human rights against the global and domestic perpetuators are bring rapidly increased from different stake holders of the society. The new challenges are coming up with new faces of conflicts within families, groups, institutions and states too. In this sense, the protection of human rights is becoming so challenging for law as well as state. In modern context, global community is considering protection of human rights as very much foundational and central. Throughout the discourse of demands of human rights, law has to perform very proactive role in various directions. The simplicity may change into complexity when local issues take a shape of global issue as global-local nexus has reinforced the hope and belief in human rights values.

The legal relationship between globalization and human rights can be analyzed from the perspective of economic regulation as well as that of human rights law, examining first whether international economic law sufficiently supports or takes into account human rights concerns, then considering the extent to which human rights law takes into account globalization and economic interests. In respect to both inquiries, the fundamental question is whether a human rights system premised on state responsibility to respect and ensure human rights can be effective in a globalized world.

Opponents of globalization see it as a threat to human rights in several ways. First, local decision-making and democratic participation are undermined when multinational companies, the World Bank, and the IMF set national economic and social policies. Second, unrestricted market forces threaten economic, social, and cultural rights such as the right to health, especially when structural adjustment policies reduce public expenditures for health and education. Third, accumulations of power and wealth in the hands of foreign multinational companies increase unemployment, poverty, and the marginalization of vulnerable groups.

Globalization is leading to greater problems of state capacity to comply with human rights obligations, particularly economic, social, and cultural rights,such as trade union freedoms, the right to work, and the right to social security. It also may have a disproportionate effect on minorities. Cooperation internationally and from non-state actors is needed in the face of an undoubted concentration of wealth in the hands of multinational enterprises, greater than the wealth of many countries. Globalization is a particular issue for women, because they often bear a disproportionate burden of poverty, which may be exacerbated by economic restructuring, deregulation,and privatization.[9]Investors have demonstrated a preference for women in the "soft" industries such as apparel, shoe- and toy-making, data-processing, and semi-conductor assembling—industries that require unskilled to semi-skilled labor, leading women to bear the disproportionate weight of the constraints introduced by globalization. The process of economic liberalization has also led to growth in the informal sector and increased female participation therein. Employment in the informal sector generally means that employment benefits and mechanisms of protection are unavailable. Underemployment seems to be as big a problem as open unemployment.

Another impact observed in many countries is a shift from companies hiring permanent employees with job security and benefits, to the use of contingent or temporary workers lacking health care, retirement, collective bargaining arrangements, and other security available to the permanent work force.As with other negative impacts of globalization, this one also has more severe impacts on women,minorities, and migrant workers.Women comprise the largest segment of migrant labor flows, both internally and internationally. States often do not include migrant workers in their labor standards, leaving women particularly vulnerable.Overall, only some 20% of the world’s workers have adequate social protection.In addition, some 3000 people a day die from work-related accidents or disease.

Globalization also has produced an important new type of transboundary criminal enterprise. International crimes that involve or impact human rights violations are increasing: illegal drug trade, arms trafficking, money laundering, and traffic in persons are all facilitated by the same technological advances and open markets that assist in human rights. Traffic in women for sexual purposes is estimated to involve more than $7 billion a year, but the sex trade is notthe only market for humans. Coercion against agricultural workers, domestic workers, and factory workers also is evident.

Another impact observed in many countries is a shift from companies hiring permanent employees with job security and benefits, to the use of contingent or temporary workers lacking health care, retirement, collective bargaining arrangements, and other security available to the permanent work force. As with other negative impacts of globalization, this one also has more severe impacts on women, minorities, and migrant workers. Women comprise the largest segment of migrant labor flows, both internally and internationally. States often do not include migrant workers in their labor standards, leaving women particularly vulnerable. Overall, only some 20% of the world’s workers have adequate social protection In addition, some 3000 people a day die from work-related accidents or disease.[10]

Globalization also has produced an important new type of transboundary criminal enterprise. International crimes that involve or impact human rights violations are increasing: illegal drug trade, arms trafficking, money laundering, and traffic in persons are all facilitated by the same technological advances and open markets that assist in human rights. Traffic in women for sexual purposes is estimated to involve more than $7 billion a year, but the sex trade is notthe only market for humans. Coercion against agricultural workers, domestic workers, and factory workers also is evident.

Crime syndicates are rivaling multinational corporations for economic power, threatening the security and well being of large numbers of persons. The free movement of capital, which is a prior condition to the growth in foreign investment, permits money laundering in the absence of exchange controls or other appropriate regulation. The free circulation of goods can bring stolen automobiles, smuggled sex workers, and torture implements, as well as fresh fruit and vegetables. At the same time, new technologies also permit the easier pirating of intellectual property. Indigenous groups and local communities challenge the very foundations of intellectual property protection, particularly when applied to pharmaceuticals necessary to ensure the right to life and to health.

Certain human rights are particularly threatened by globalization. Respect for private life needs protection against personal data collection. Cultural and linguistic rights can also suffer under global assault, but the evidence seems contradictory. There is no doubt that globalization facilitates the transfer of cultural manifestations and cultural property. A study by the U.N. Economic and Social Council (UNESCO) indicates that commerce in cultural property tripled between 1980 and 1991 under the impulse of satellite communications, Internet, and videocassettes. Yet, in this field, as in others, mergers and acquisitions have concentrated ownership to the detriment of local industry. The Hollywood film industry represented 70% of the European market in 1996, more than double what it was a decade earlier, and constituted 86% of the Latin American market. In the opposite direction, traditional cultures across the world are being transmitted and revived in multiethnic states through the movement of peoples, their languages, and their beliefs.

Economic globalization has been criticized for protecting investors to the detriment of local people, arguably increasing unemployment and underemployment. To make conditions better for investors, the World Bank and IMF impose economic "reform" that may lead to human rights violations, including an increase in infant and child mortality rates.[11] In addition, structural reform usually mandatestrade liberalization, something industrialized countries have not been similarly pressured to do. States may or may not be weakened, but the weakest within states are further marginalized. Lack of accountability results from the inability to exercise rights of political participation or information about key decisions. Structural adjustment may require cutting public expenditure for health and education, social security, and housing. Labor deregulation, privatization, and export-oriented production increase income disparity and marginalization in many countries.This leaves the main function of the state to be policing and security, which may lead either to increased political repression or to violent protests and political destabilization.

According to the independent expert appointed by the U.N. to study the impact of structural adjustment programs on human rights, there are two main consequences of such programs. First, they have led to a significant erosion of the living standards of the poor and investment in the productive sectors of many countries; second, such countries have ceded their right to independently determine their country’s development priorities . According to the expert, structural adjustment shifted from being a mechanism to handle national debt into a vehicle for deregulation, trade liberalization, and privatization—all reducing the role of the state in national development. Properly structured debt relief is essential to alleviate poverty and build democratic institutions.[12]

6. Global Health and the legal issues
The past two decades have brought revolutionary changes in global health, driven by popular concern over the acquired immunodeficiency syndrome (AIDS), new strains of influenza, and maternal mortality. International development assistance for health - a crucial aspect of health cooperation - increased by a factor of five, from $5.6 billion in 1990 to $28.1 billion in 2012, with the private and voluntary sectors taking on an ever-increasing share of the total. Given the rapid globalization that is a defining feature of today's world, the need for a robust system of global health law has never been greater. Global health law is not an organized legal system, with a unified treaty monitoring body, such as the World Trade Organization. However, there is a network of treaties and so-called "soft" law instruments that powerfully affect global health, many of which have arisen under the auspices of the World Health Organization (WHO). Global health law has been defined as the legal norms, processes, and institutions that are designed primarily to attain the highest possible standard of physical and mental health for the world's population.

Global health law can affect multiple spheres, ranging from national security, economic prosperity, and sustainable development to human rights and social justice. Each global health problem is shaped by the language of rights, duties, and rules for engagement used in the law.

Despite the potential of soft and hard instruments to set norms and mobilize multiple actors, global health laws have major limitations .First, governments are loath to constrain themselves and, therefore, often reject international law or agree only to weak norms. Second, high-income countries are reluctant to finance capacity building in lower-income countries or to provide funding to the WHO without specific earmarks. And third, compliance mechanisms for such laws are often weak or nonexistent. Because international law primarily addresses the rights and duties of countries, it cannot easily govern nonstate actors, which range from individuals and civil-society groups to foundations and private enterprises. Although newer global health institutions (e.g., UNAIDS, Global Fund, and GAVI Alliance) include civil-society representatives on their governing boards, the WHO has resisted nonstate participation in its governing structures.

The ‘Grand Challenges’ of Global Health Law

The political, legal, economic and social contours of the current international landscape present major challenges for global health governance. If ameliorating the most common causes of disease, disability and premature death require global solutions, then the future is demoralizing. The states that bear the disproportionate burden of disease have the least capacity to do anything about it. And the states that have the wherewithal are deeply resistant to expending the political capital and economic resources necessary to truly make a difference to improve health outside their borders. When rich countries do act, it is often more out of narrowly perceived national interests or humanitarian instinct than a full sense of ethical or legal obligation. The result is a spiralling deterioration of health in the poorest regions, with manifest global consequences for cross-border disease transmission and systemic effects on trade, international relations and security. For global health law to be an effective means of stopping this disastrous dynamic, the international community must overcome four ‘grand challenges’ in global health law, i.e., enduring, hard-to-solve obstacles to utilizing law as an effective tool for achieving global health with justice (Gates Foundation, 2003).

State-centricity in the international legal system.
Skewed-priority setting.
Flawed implementation and compliance.
Fragmentation, duplication and lack of coordination.

State-Centricity in the International Legal System

A fundamental challenge of global health governance is the state-centric nature of international law. Although there has been significant encroachment on the power of states through the process of globalization, they remain the dominant actors in the international legal system. As discussed above, states are the primary subjects of public international law—including international public health law—and, thus, international law sources primarily address the rights and duties of state actors.

A critical limitation of the state-centric nature of international law is its inability to incorporate nonstate actors in the legal framework for global health governance. The international legal system is primarily concerned with states powers, responsibilities and relationships in the international community. However, as described above, nonstate actors ranging from civil society to foundations to private enterprises are playing increasingly important roles in global health governance. While WHO and other international organizations do interact with nonstate actors and incorporate them within global health governance through such means as public-private partnerships and participation in global health forums, international law does not provide a sufficient basis to fully realize the potential synergies of collaboration among stakeholders. Thus, international law needs to evolve to recognize their existence and to establish instruments and structures that will allow them to coordinate with each other and state actors to advance equitable global health.

The state-centric nature of international law poses other major obstacles to the use of global health law as an effective tool to advance global health cooperation. The idea that sovereign states are the organizing principle of international relations and, thus, are the focus of international law, has a number of important implications. The overriding principle of sovereignty makes international law fundamentally different from domestic law. In particular, international law is largely voluntary: there is generally no supranational authority to develop and enforce law against sovereign states. In treaties, the primary source of global health law today, states establish international legal rules by expressly consenting to them. Because states are generally loath to sacrifice their freedom of action through the codification of binding international law, treaties are most often far from sufficiently comprehensive and tend to incorporate limited obligations. Moreover, the drive to establish universal consensus in contemporary treaty negotiations often leads to the codification of fairly weak treaty commitments or what is known as ‘lowest common denominator’ standards. Overall, the implications of the voluntary and decentralized nature of the codification and implementation of international law permeate and deepen the remaining grand challenges of global health law.

Priority Setting
In contemporary global health governance, states are apparently unwilling to develop international legal instruments that create binding and meaningful obligations and incentives, and provide deep funding or services for the protection of the world's poorest people. As a consequence of the voluntary nature of international law and the overriding principle of sovereignty, states have established only a limited legal framework for national action and international cooperation to advance domestic and global public health. But this is exactly what is required to address the most intractable problems in global health.

Implementation and Compliance
In the state-centric international legal system, the law that is made and the law that is implemented depend upon the will of states. As states are generally unwilling to subject themselves to international scrutiny and accountability, treaties by and large are typically marked by inadequate mechanisms to promote national compliance. Although perceptions of sovereignty are slowly changing, state consent to strong and meaningful implementation mechanisms remains rare because states are concerned that international institutions charged with implementing legal obligations will interpret their authority to be more expansive than that granted to them by states, thereby impinging on state autonomy.

Thus, in the state-centric international legal system, it is not surprising that there is no meaningful dispute settlement body in global health law today. Although the lack of concrete
normative standards and capacity to assure effective implementation is an endemic problem in international law, it is a particularly acute problem in the economic and social arenas, including global health law. Most international instruments relating to health contain few incentives or options to encourage or promote compliance.

Fragmentation, Duplication and Lack of Coordination
one of the most striking characteristics of the emerging domain of global health law is the proliferation of organizations contributing to the elaboration of this increasingly complex and multi-faceted field. These organizations include the UN and its agencies (primarily WHO), organs and other bodies, and international and regional institutions outside the UN system. Overall, an increasing number of international organizations with lawmaking authority and relevant mandates are serving as platforms for global health law negotiations, while others are influencing contemporary lawmaking in this realm.

Global Health and the Law

The harmonization of governmental interests, moreover, can be difficult because of the disparate perspectives.Although high-income countries often favour trade liberalization, low- and middle income countries seek greater access to drugs and the fruits of technological progress. In 2001, World Trade Organization members adopted the Doha Declaration on TRIPS (the Agreement on Trade-Related Aspects of Intellectual Property Rights) and Public Health, which allowed countries to issue a compulsory license during a public health emergency, granting to itself or a third party the right to produce or import a patented drug without authorization from the patent holder. So-called "TRIPS flexibilities" were designed to ensure that intellectual property should not prevent countries from providing affordable access to essential medications in a public health emergency.[13]
Increasingly, the reconciliation of these interests occurs at the national level. For example, in 2013, the Supreme Court of India held that Novartis did not have a valid patent in India on the lucrative cancer drug Gleevec.[14]The court ruled that Indian law grants patents only to new compounds and that modified drugs must improve treatment for patients. The decision could embolden other emerging economies to reject similar intellectual-property claims. At the same time, developed countries are seeking stricter intellectual-property protection in trade agreements, such as the Trans-Pacific Partnership, which seeks to promote trade and investment among the partner countries.

Trust in international organizations to act impartially and demonstrate leadership is crucial to the future of global health law. As new health security challenges arise, the integrity and efficient functioning of the WHO becomes ever more important. The WHO, however, is struggling with a small group of donors that contribute approximately 80% of its total budget.The term for this type of financing is "multi-bi" aid — donors' earmarking of noncore funding for specific sectors, diseases, or regions through multilateral agencies.Since the leadership of the WHO is unable to control most of its budget, these aid arrangements endanger the perceived independence and normative influence of the WHO.

Financing is intricately related to the challenge of building capacity to fulfill duties created by global health law. The 2011 review committee on the functioning of the International Health Regulations stressed that many countries lacked capacity and were not on a path to fulfill their obligations. The same failure to mobilize resources has plagued WHO normative development in such areas as achieving ambitious goals set forth in action plans on non communicable diseases and mental health.[15]

If global community is emerging, at least in a limited form, then we need a global public law to structure it. This is the transformative challenge for international law and legal theory today: to move from the public law of inter-state relations, to the public law of a global community of persons. This will involve many theoretical and doctrinal tasks. At their core, these new tasks involve a global system for safeguarding and delivering what can be called the "global basic package," a basic bundle of political social and economic rights everyone is entitled to as a function of their humanity, and which is safeguarded and delivered, at the primary level, by the global. This list can be drawn in a variety of ways, but involves at a minimum the following four elements: security, subsistence, liberty, voice. We see the germ of a global basic package today in international human rights law, humanitarian aid, and the notion of humanitarian intervention. International law today already recognizes a core commitment to deliver basic rights, subsistence food and shelter, and some minimum level of security, as a function of our basic humanity. In reality, this often amounts to very little, when it amounts to anything at all: a food package, a blue helmet in the vicinity, and an occasional visit by an international human rights investigator. There are two fundamental gaps: the absence of effective mechanisms for global wealth transfers at the scale necessary to support the global basic package; and the absence of effective political representation or voice at the global level. How we get there, and in the process go from international law to global public law, will require a profound re-examination of core international legal doctrines and institutions such as boundaries, sovereignty, legitimacy, citizenship, and the territorial control of resources.

The absence of global institutions capable of giving everyone both the resources reflected in this basic package, and a voice in formulating this basic package, is a fundamental gap in the global basic structure as it stands today. We are indebted to the anti globalization protests for building awareness of this problem, and for reminding us that the creation of a global market society need not result in a global laissez faire market culture. We must recall, however, that the progression towards globalization is not inevitable or linear, nor is the achievement of a just globalization. The task of international legal theory, or global legal theory as we now might call it, is to draw upon both traditional domestic political theory, and innovative studies of our new global social reality, to design the next generation of global institutions and doctrines capable of delivering global justice for a global community.

A quantum leap into cyberspace has indeed transformed our vast world into a "global village." For good or ill, it has breached natural and artificial barriers among nations, thus facilitating the exchange of commodities, services, information and technology, and the adoption of social and cultural patterns. For lack of a "filtering device" and an effective mechanism, it has not been possible to treat countries even-handedly resulting in preferential treatment of some at the expense of others or in the dissemination of undesirable, even dangerous information. For mutual protection and closer coordination, countries are constrained to set up tighter networking systems and enter into multilateral agreements culminating in treaties, conventions, resolutions, and various kinds of modus Vivendi. All too soon, mankind has realized that it has to accept the evils of globalization along with its blessings. To ask whether it is a boon or a bane is posing a rhetorical question. What is certain is that this relatively recent phenomenon is raising legal challenges never anticipated in the past. Leaders and the governed alike are forced to draw upon their reserves of creativity, imagination, foresight, and intuition to cope with, and possibly rein in, a juggernaut in the making. Indeed, a multitude of legal problems and issues have sprung, which continue to call for innovative legal solutions that could keep a pace with the dizzying rate of change. It behooves all of us, therefore, particularly lawyers and judges, to be mindful of the role each one can play in the ever-expanding world of the law for it is the rule of law that makes the attainment of lasting peace and harmony possible. It is the rule of law that enables us to preserve time-honored institutions which are the hallmarks of civilized society. It is the rule of law that empowers us to do what we have to do now so that our children can survive in an increasingly competitive world

[1] LL.M scholar, Department of Law, University of Kashmir.
[2] See generally, PCIJ, "Lotus" Case, PCIJ, Series A., No. 10, 1927, 4-108, 25; "Trail-Smelter" Case, 1938/1941, Reports of International Arbitral Awards Vol. III, 1905-1982.
[3] D. Pieters, "Social Security Law and the Challenge of Globalization
[4] Rieko Karatani, ‘How History Separated Refugee and Migrant Regimes: In Search of Their  Institutional Origins’, Volume II Chapter 1; p. 5.
[5] Ibid, pp. 18-24.
[6] See the Migration for Employment Convention of 1949 (No. 97) (C97) and the Migrant Workers  (Supplementary Provisions) Convention of 1975 (No. 143) (C143).
[7] (summarizing the development and codification of war crimes in, inter alia, the Lieber Code (1863), the Oxford Manual (1880), and the Hague Conventions (1899 and 1907)
[8] See id. at 333 ("For the first time non-national, or multi-national, institutions were established for the purpose of prosecuting and punishing crimes having an international dimension and scope.").
[9] SeeUNCTAD, World Investment Report 1994: Transnational Corporations, Employment and the Workplace260 (1994).
[10] See 1999World Survey on the Role of Women in Development: Globalization, Gender and Work:Report of the Secretary General, at 9, 54th. Sess., U.N. Doc. A/54/227, U.N. Sales No. E.99.IV.8 (1999)
[11] SeeStatement by the Committee on Economic, Social and Cultural Rights,Globalization and Economic, Social and Cultural Rights(May, 1998),at html/menu2/6/cescrnote.htm#note18h [hereinafter Statement,Globalization].
[12] The debt burden of the thirty-three poorest countries of the world collectively amounts to $127 billion owed to industrialized countries and institutions. In Mozambique, one of the poorest countries in the world, 30% of all revenue goes to debt servicing
[13] World Trade Organization. Doha WTO Ministerial 2001: TRIPS, WT/MIN(01)/DEC/2, 20 November 2001: Declaration on the TRIPS agreement and public health, adopted 14 November2001(
[14] Kaczynski A. Engineered in India -- patent law 2.0.N Engl J Med2013;369:497-499
[15] Becker AE,Klein man A. Mental health and the global agenda.N Engl J Med2013;369:66-73

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