The authorities granted to you in this section may be further limited by constraints defined under Section 2. When filling a Role in a Circle, you may use and impact any Domain controlled by the Circle itself, or that the Circle is authorized to impact. However, you must abide by any constraints acting upon the Circle itself or defined by Policy of the Circle, and you may not fully control or regulate the Domain under the terms of Section 1. Further, you may not transfer or dispose of the Domain itself or any significant assets within the Domain, nor may you significantly limit any rights of the Circle to the Domain.
However, these restrictions do not apply if a Role or process holding the needed authority grants you permission to do so. By default, any Domains delegated in this way exclude the authority to dispose of the Domain itself or any significant assets within the Domain, or to transfer those assets outside of the Circle, or to significantly limit any rights of the Circle to the Domain.
A Circle may delegate these retained authorities as well, by explicitly granting the desired permissions in a Policy of the Circle. In any case, all Domain delegations are always limited to whatever authority the Circle itself had in the first place. However, this only applies to the extent that those Accountabilities and Domains have not been placed upon a Role within the Circle, or otherwise delegated.
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However, a Circle may remove any Accountabilities, Domains, authorities, or functions of its Lead Link Role, either by placing them on another Role within the Circle, or by defining an alternate means of enacting them. When this occurs, it automatically removes the relevant element or authority from the Lead Link Role, for as long as the delegation remains in place. Unless a special appointment or exclusion is made under the terms of this section, the Core Circle Members of a Circle are:.
If multiple Partners are assigned to the same Defined Role in a Circle, the Circle may enact a Policy that limits how many of them are Core Circle Members as a result of that Role assignment. However, the Policy must allow at least one of the Partners filling the Role to represent it as a Core Circle Member, and must specify how that representative will be determined. In addition, any Partners representing the Role have the duty to consider and process Tensions conveyed by the excluded Partners, exactly as a Rep Link would were the Role a Sub-Circle, unless the Policy defines an alternate pathway for the excluded Partners to process Tensions related to that Role.
Sometimes, a Partner allocates only a very minor, nearly insignificant amount of attention to a Defined Role in a Circle. If a Partner is so excluded, the Lead Link has a duty to consider and process Tensions conveyed by the excluded Partner, exactly as a Rep Link would were the Role a Sub-Circle, unless an alternate pathway is defined for the excluded Partner to process Tensions related to that Role.
The Lead Link of a Circle may specially appoint additional persons to serve as Core Circle Members of a Circle, beyond those required by this Constitution, and may further remove these special appointments at any time. The Lead Link of a Circle may assign people to fill Defined Roles in the Circle, unless that authority has been limited or delegated. When a Role assignment includes a Focus, the Purpose, Accountabilities, and Domains defined for the Role apply just within the specified Focus for that particular person. During the election process, the Facilitator will specify a term for each election.
After a term expires, the Secretary is responsible for promptly triggering a new election for that Elected Role. A Circle may add Accountabilities or Domains to its Elected Roles, as well as amend or remove those additions. Further, no Circle may amend or remove any Purpose, Domain, Accountabilities, or authorities granted to an Elected Role by this Constitution, nor remove an Elected Role entirely. In any given instance where a surrogate is needed, the surrogate is, in this order of precedence:. This can be done by removing the Sub-Circle and everything within entirely, or by selectively retaining certain elements of the Sub-Circle within the Circle.
A Sub-Circle may also be removed by collapsing it from a Circle back into just a Role. Once a Cross Link Policy is adopted, the Linked Entity may assign a representative to participate in the Target Circle under the terms of this section, unless alternate terms are defined in the Policy. If the Linked Entity is a Circle or group, it may assign someone to fill the Cross Link Role using whatever process it already has for assigning people to fill Defined Roles or similar work functions.
If a Linked Entity represents a group with no single locus of authority to do that assignment, then the Target Circle may instead assign someone to the Cross Link Role, unless otherwise specified in the Cross Link Policy. Whenever a Cross Link Role is unfilled, it is considered non-existent and has no default assignment or effect.
However, beyond removing limitations, a Cross Link may not use the Target Circle to build more capacities for the Linked Entity, unless those capacities would also help the Target Circle express its own Purpose or Accountabilities. In that case, the other Circle may change the Linked Entity to another one of its Roles that it believes is more appropriate, or delegate the selection of the Linked Entity to one of its Sub-Circles.
The Target Circle may also delegate the requirement to receive a link to one of its own Sub-Circles, in which case that Sub-Circle will then become the Target Circle for the link. In either case, any delegation must be done via a Policy of the Circle doing the delegating. Further, any change or delegation must still align with any constraints or guidelines specified in the Cross Link Policy that extended the invitation to link in the first place.
Before a Proposal is adopted, all Core Circle Members must have the opportunity to raise Tensions about adopting the Proposal. Proposals are considered adopted and amend the Governance of the Circle only if no Objections are so raised. If Objections are raised, the Proposer and each Objector must find a way to address the Objections before the Circle may adopt the Proposal, after which all Core Circle Members must have another opportunity to raise further Objections before the Proposal is adopted.
When this happens, the Facilitator may either apply the same process and rules used within a Governance Meeting, or may allow each Core Circle Member to directly declare whether or not he or she has Objections to integrate. A Circle may adopt Policies to further constrain when or how Proposals may be made or processed outside of a Governance Meeting.
However, no Policy may limit the right to stop asynchronous processing by escalating to a Governance Meeting. A Circle may also use a Policy to create a time limit for responding to asynchronous Proposals, upon which any asynchronous Proposal is automatically adopted if no Objections or escalation requests are raised. To be valid for processing, a Proposal must resolve or reduce a Tension sensed by the Proposer.
For a Proposal to survive the test, the Proposer must be able to describe the Tension, and give an example of an actual past or present situation in which the Proposal would have reduced that Tension and helped the Circle in one of the ways allowed by the prior section. The Facilitator must discard the Proposal if the Facilitator deems the Proposer has failed to meet this threshold. However, when assessing the validity of a Proposal, the Facilitator may only judge whether the Proposer presented the required example and explanations, and whether they were presented with logical reasoning and are thus reasonable.
The Facilitator may not make a judgment on the basis of their accuracy, nor on whether the Proposal would adequately address the Tension. Some Tensions do not count as Objections, and may be ignored during the processing of a Proposal. A Tension only counts as an Objection if it meets all of the criteria defined in a through d below, or the special criteria defined in e :. However, regardless of the above criteria, a Tension about adopting a Proposal always counts as an Objection if:.
The Facilitator may test the validity of a claimed Objection by asking the Objector questions. For a claimed Objection to survive the test, the Objector must be able to present a reasonable argument for why it meets each specific criteria required of an Objection. The Facilitator must discard an Objection if the Facilitator deems the Objector has failed to meet this threshold. When assessing the validity of a claimed Objection, the Facilitator may only judge whether the Objector presented the required arguments, and whether they were presented with logical reasoning and are thus reasonable.
However, when an Objection is claimed on the basis of a Proposal violating the Constitution, per Section 3. If the Secretary rules that it does not, the Facilitator must then dismiss the Objection. When an Objection to a Proposal is raised, the following additional rules apply during the search for a resolution:. In addition to any regular, recurring Governance Meetings the Secretary schedules, the Secretary is responsible for scheduling additional special Governance Meetings promptly upon request of any Core Circle Member.
The Facilitator is responsible for presiding over all Governance Meetings in alignment with the following rules and any relevant Policies of the Circle. The acting Facilitator and Secretary are also entitled to fully participate, and become Core Circle Members for the duration of a Governance Meeting even if they are not normally Core Circle Members.
In addition, the Lead Link and any Rep Links or Cross Links to the Circle may each invite up to one additional person, solely to aid the link in processing a specific Tension. The invited participant then becomes a Core Circle Member as well for the duration of that Governance Meeting. Public law refers to the relationship between a public power mostly the state or an organ thereof and another entity with legal personality.
Rather than referencing a particular domestic legal system, public and private law refer to very broad understandings of these areas of law. This article will continue to refer to them as the sum of a number of conceptions and methodologies. The understanding of private law should include its central role not mere affinity in terms of environment, education, health, information, and many more issues and discourses. There is a paradox in this argument which needs to be addressed: Public international law in its traditional Westphalian form has often been compared to private law.
Treaties, the law-making mechanisms in international law, are described as quasi-contractual due to their largely consensual nature. And the lack of enforcement mechanisms make the quasi-private law indeed appear like privately created law rather than regulated private law. So why choose to critique the prominence of the public? In order to deal with this circularity, it merits understanding how private law was historically conceived in international law.
Hersch Lauterpacht, one of the most eminent international lawyers in the interwar period, writing in the s, observed that there are two instances when private law conceptions and methodologies are relevant in international law. In his view, international law drew from the resources of private law—not from a specific domestic legal order but from common private law conceptions and methodologies—in such cases. This could be summarized as an instance in which private law shapes public law and the outcome is public law.
Second, there are legal relations which are prima facie private law but for the fact that a state is a party to these relations.
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An example of this is when a state leases real property or when a state enters into relations for the purpose of constructing a bridge. This is an instance in which public law shapes private law and the outcome is private law. Today, this second form of inquiry—when a state or other public law entity an international organization, for example engages in private law—is increasingly considered as being a form of decision-making.
It is regarded as a form of governance that should be considered part of international law so long as the exercise of authority has an effect beyond the merely domestic. Such trans- state activity of a private nature is not the only form of governance relevant today. Private activity of a public nature is an emerging and theoretically challenging focus of governance. Examples of this type of private activity may be encountered when a collection of businesses across the world organize a voluntary carbon offsetting trading system.
This is an instance in which private law shapes public law. In view of the above, there are three instances of governance relevant to international law: a inter-national relations of a public nature mostly government, not merely governance ; b trans- or inter-national relations of a private nature in which the state is the primary actor; and c trans-national relations of a public nature in which a private entity is the primary actor. Instances b and c are today understood as instances of global governance.
As we know from Lauterpacht, they were previously not included in inquiries into international law. Yet, there is a continuation from Lauterpacht in that such private legal activity is only imported into international law today by means of public law regulation of the activity. This section continues the discussion set out in section 1, and also deals with terminology and taxonomy.
In international legal debate, global governance, which—as opposed to global government—carries the idea of multifaceted power distributions in its name, is being framed exclusively in terms of public law. International lawyers in particular are inclined to employ this type of interpretation. There is no global understanding of what global governance is or means. Indeed, it is easier to begin with attributes it does not possess: it is not composed of a unitary vision; it does not possess a center of authority; it is not framed by a single discipline; and it does not have set paradigms.
In terms of the common understanding of global governance, there appears to be consensus as regards two minimal attributes: First, global governance is stimulated by globalization and vice versa ; and second, there are various sites of global governance in the world. Globalization is the most significant phenomenon compelling us to rethink global arrangements—arrangements that may have previously seemed clear, yet today appear unclear.
Globalization is chiefly driven by private law influences such as the increased interconnectedness of and through trade, investment, services, security, communications and travel.
It should be stressed here that globalization is not a neutral term. Not only the type of globalization discourses, that is, market liberalization, have been introduced mainly by the Western world; the form of the discourse itself, its language, has Western origins. The globalization we are speaking of therefore is neo-liberal globalization. Suffice it to say here that the term globalization is employed by the architects of global edifices as a supposedly neutral ideology-free reality while it is more accurately a partial reality.
Global governance in its broadest understanding can be thought of as a term which tries to capture the process of globalization in terms of power arrangements. A frequently referenced definition of global governance is James N. An understanding which includes the various private law actors, who can exercise power without exercising governmentality, seems more appropriate for the global space: Transnational decision-making by a specialized entity with effects on the public may be a more accurate starting point.
There are various sites of global governance. They can be mapped according to a a geographic distinction between the various sites of authority; b an institutional distinction; and c a social organization distinction. The geographic distinction involves centers of governance that are localized in various sites.
This perspective on global governance looks at the physical source of decision-making. Indeed, this is the key to its appeal for international lawyers who are seemingly at a loss when it comes to such processes, but nevertheless hope to be able to rationalize them as being part of their discipline. Decentered from a particular state although often subject to domestic regulation , the industry is dominated by a few companies, all in the Global North, also known as Big Pharma, that are seemingly primarily interested in profits.
Research and investment is reserved for health issues related, for example, to stress, obesity, and similar developed-country ailments, while issues such as AIDS and tropical diseases are neglected. The local decision as to which drugs to research on, manufacture, prescribe, and sell, therefore has an impact on global health.
The second category—institutionalized forms of global governance—is apparent in specialized governmental and non-governmental organizations. The World Trade Organization WTO is such a specialized international organization, organ ized through member states and regulating global trade. This organization makes decisions regarding the liberalization of trade—decisions which cut across all states party to it and therefore also all citizens of those states.
It has centralized much of this decision-making, employing hierarchical distinctions between treaty law and derived legislation; it also provides for a binding dispute resolution body. Not all forms of global governance are institutionalized, either in a corporate manner like the pharmaceuticals industry or in a public manner like the WTO. There are also individual impulses of governance, characterized here as the third site of global governance, namely social organization.
Univ.-Prof. Dr. Ulrich Brand
Social organizational forms of global governance can be exercised by individual experts or by spontaneous groupings. An expert in economic development—one of the Nobel laureates in economics, for example, although not necessarily a statesman or representative of another public authority—may have a large impact on the understanding of economic development.
The understanding of what comprises international law has changed significantly through the reshaping that globalization has prompted. Undoubtedly, a change has occurred to the effect that what we consider to be international law today is not the same as it was in the treaty-rich period after the end of World War II. The primary impulses in terms of private law have occurred in the past twenty years.
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In line with the neo-liberal understanding of globalization, the greatest forces at play have been of a political-economic nature: the collapse of the Soviet bloc and with it the globalization of capitalism, the integration of China into the world economy on the basis of capitalist trading paradigms , and global deregulation and privatization of formerly state-regulated service providers.
Three areas of international law highlight the growing significance of private law particularly well: the calls for the accountability and transparency of transnational corporations, private military companies, and bilateral investment treaties. All three highlight the need to rethink the theory underlying international law and raise the question whether such theory should be one of exclusively public law.
The increasing importance of transnational corporations TNCs in international law is an indisputable fact. That international lawyers are trying to come to terms with their significance from a more theoretical perspective becomes immediately apparent by the wealth of literature dedicated to the topic. The field focuses on adopting human rights standards, such as minimum labor requirements or responsible sourcing of materials, to the practices of businesses worldwide. In the US, this was particularly evident through the Alien Tort Claims Act litigation, which has been employed as a potential tool for attributing liability to multinationals under civil law sometimes employing criminal law standards for certain human rights abuses committed abroad.
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A private military company PMC is a company providing martial services through a corporate legal framework. In the past twenty years, the PMC has become a powerful global phenomenon. In international law, PMCs are part of the larger phenomenon of the increasing importance of non-state actors. PMCs, like TNCs, are not granted legal subjectivity as such and are therefore on the fringes of international law. The reason why PMCs are such an excellent example of private law influences on international law is that they have partly assumed one of the crucial public roles of states and one of the archetypal areas of international law: waging war.
As PMCs became more involved in areas previously reserved for states, and as crimes they committed have attracted the attention of international media, there emerged a vigorous demand for accountability. The horrors of Abu Ghraib committed by employees of CACI and Titan, the rapes committed by DynCorp contractors in Bosnia, and crimes perpetrated by other contractors have made accountability of private legal entities an urgent project for international and human rights lawyers. Bilateral investment treaties BITs are treaties establishing the terms and conditions of foreign direct investment—the private investment by individuals and companies of one state in another.
International investment law emphasizes reciprocal promise-based obligations; a treaty therefore mostly includes private law conceptions such as fair and equitable treatment, conditions of expropriation, and the referral of disputes to a body of international arbitration. William W. The three examples outlined above, namely transnational corporations, private military companies, and bilateral investment treaties, can merely provide a very cursory glimpse of a vast field and ever-expanding body of literature.
These three examples of international law are not random examples of private law; they are all believed to be part of the phenomenon of global governance. At the same time, they are primarily being discussed in the international legal literature in terms of accountability mechanisms predicated on public law.
Yet, this is not how global governance was originally conceived. Global governance is a term originally employed by international relations scholars to describe non-hierarchical networks. There is, for example, a large body of literature on global constitutionalism, world legislation, and global administrative law, all of which are understood as either a part of or the entire expression of global governance discourse.
None has gained ascendancy as the one mechanism for ordering global arrangements. The real global construction has not begun. This is contrary to the developments in specialized areas of international law. The emergence of specialized areas has been dubbed the fragmentation of international law. Such undertaking has increased its legitimacy. The extent of legitimacy in the international community can be demonstrated by recent events surrounding the opening of investigations into violations of crimes against humanity allegedly committed by Colonel Gaddafi and his regime by the Office of the Prosecutor at the International Criminal Law.
Most contributors to the debate on global arrangements adopt a normative rather than a descriptive orientation. The normative orientation imagines what the global order should look like while the descriptive orientation considers the existing systems, orders, and disorders. International relations scholars are more likely to use a descriptive approach, which often results in accounts of networks, rather than a hierarchical approach.
International lawyers naturally approach global arrangements from a normative perspective, but often draw on descriptions that conveniently fit their vision, yet can be criticized for being more utopian than accurate. For example, there are a number of scholars who argue that the international sphere is constitutionalizing, and to make their case refer to analogies to their domestic legal systems.
Whether it is specifically a constitution that these contributors are arguing in favor of or a form of overarching legislation, there is a desire to model the international on the domestic. Yet, as a description of the international sphere, it seems more accurate to talk of disorder than of order: multiple actors, processes, competing forms of power and contradictions have created an altogether diverse world.
The authors of the article draw from such private law issues that there has emerged a large area of authority which lacks accountability. The public law approach to global governance applied by these scholars has a strong institutional tendency and is a combination of what they consider the three main approaches to global governance phenomena: constitutionalization, administrative law perspectives, and international institutional law. As was mentioned above, the global edifices have not come into force; they are currently merely imaginations.
One could argue therefore that the undertaking of reintroducing private law conceptions and methodologies into international law is a straw man argument: Where is the edifice which is threatening ideas of the separate legal sphere, equality, and redistribution? Although there have been significant changes to international law, none of the visions for global edifices have gained ascendancy. Interestingly, the more ambitious the global edifice visions are, the more likely the less ambitious but similarly vigorous visions become.
Who would want to argue with a global standardization of private military companies when others are suggesting that the UN Charter is to be viewed as a global constitution? Judging by the above, the trend is going towards multiple suggestions for public legal frameworks which would occasion regulated private law.
While there is no international private law at the moment, there is clearly a need to question its appeal. Private actors have undoubtedly become more and more important in the international sphere. In domestic law, governments have increasingly contracted with private organizations when it comes to health care, education, welfare, security, transport and communications. As a similar trend is sweeping the global sphere, it is interesting to note that it is assumed that the private sphere does not suffice in terms of standards of legitimacy and, therefore, that private actors need to be enveloped in a public law framework.
Privatization is considered as legitimate only if it occurs in a way which mimics the domestic systems—as regulated private law. What is left out of the picture, however, are the marginalizations and biases inherent in public law edifices, on the one hand, and the progressive legal potential of some private law conceptions and methodologies, on the other. The presence of private law in the global sphere is an undeniable, and possibly an irreversible, fact. As Laura A. It appears that this is due to a chain of assumptions and responses.
The first assumption is that the processes thought to be changing the global sphere are chaotic. This assumption is met with demands for order. Underlying this assumption are a number of further assumptions, most obviously that chaos must at all costs be prevented; the assumption about chaos is that it opens up a legitimacy deficit, indeed a legality deficit. Public law is understood as the site of order, while the private is the scene of chaos. The international lawyer is accustomed to this very rhetoric of the faith in the public and the fear of the private: International lawyers, predominantly, of course, public international lawyers, assume control over public processes but find it difficult to get a grip on private legal processes.
What attributes do all these global edifices of international lawyers share? They all require a system and they all require some form of hierarchy within the world. Systematization, without doubt, offers many benefits: it orders and offers control; but above all, it offers an answer to legitimacy. The motivation for such ordering by international lawyers lies arguably in the need for filling the gap that has been left by the slow erosion of the Westphalian model of governance.
Previously, of course, it was the nation state that was the site of public authority and international law prescribed this to be so throughout the world. But with shifting sites of power, global power structures can no longer be captured in such a straightforward model. The erosion of the Westphalian model has thus supposedly opened up an accountability deficit. Accountability questions prompt the familiar narratives regarding legitimacy in and of international law.
In that sense accountability is possibly most usefully regarded as a subcategory of legitimacy. International lawyers have a deeply entrenched anxiety about legitimacy, which exaggerates the need for control and order and essentially the partly irrational fear of the Private and the blind faith in the Public. The contribution advances the state of the art by extracting major disputes — mostly linked to diverging disciplinary perspectives — and existing gaps in the literature, and by suggesting areas for future research.
No potential conflict of interest was reported by the authors. Skip to Main Content. Search in: This Journal Anywhere. Advanced search. Tools of bureaucratic influence and effects on global public policies. Submit an article Journal homepage. View further author information. Pages Published online: 19 Apr Disclosure statement No potential conflict of interest was reported by the authors.