INTRODUCTION

The phenomenon of globalization has characteristics previously unknown in the political, economic and social history of humanity. It does not require the prior acceptance of the States to get involved in it, but it does advance despite opposition resistance, particularly represented by political movements of the new left that, in developed countries and in Latin America, see in globalization a new form of colonialism.

In processes to regulate national conduct, the States accept the parameters of the Vienna Convention on the Law of Treaties (Fisher, 1994) since, based on an initiative to establish an international commitment, of any kind, a correct negotiation of its terms by expert delegates from States interested in the matter.

The process of adopting certain rules of conduct rests, consequently, on the express political will of the States that make them their own, as if they were their own. However, in the globalization process the opinion of the States is not heard. Globalization progresses even when certain political actors oppose it.

In addition to accepting the existence of this global phenomenon, it must be recognized that the process gives rise to a set of influences in which the political entities that contribute the most in determining a “common direction” of globalization are more relevant. Consequently, the search for a better position for each of these entities may respond, in many cases, to various factors of competitive state interrelation. In others, to complementary interrelation factors, such as those that respond to integration processes (Santos, 2004).

In accordance with the above, the contributions to globalization will be decisive when the direction of the process obeys the real influence of powers and their allies, or successful integration processes, which in practice come to constitute a universal political power. Failed integration processes, as well as the influence that comes from smaller states, can be, according to this approach, insignificant.

It is evident then, that due to the full appreciation of their internal realities, some States choose competence and others complementarity. The latter understood as the union of resources and efforts to jointly face the challenges of globalization, thanks to a process that complements the potential of a State with the contributions of the partners in the integration process.

In this panorama, it is foreseeable to find, through complementarity, a better position for the political entities involved in the development of this globalizing phenomenon. Integration, therefore, is the instrument that makes possible the improvement of the potentialities of each of the states committed to joining together to create a new reality, which is by no means the mere sum of national realities immersed in the process. Finally, the result of the joint and shared effort consolidates an orbit of influence of the entity built. In this way, it is possible that the capacities of each one of the States individually considered are magnified.

1. SYSTEMATIC FORMATION OF GLOBAL LAW

The concept of the first analysis, the formation of Global Law, goes back to the beginning of the creation of a new international community.

After the Second World War was over, without affirming the aspiration of reaching a Universal Law, the conception of a community greater than the usual one was proposed, depending on the will of the governments of the member states. Thus, a United Nations community (Charter of the United Nations Organization) began to be created, which would later bring the possibility of a world-scale right closer (Jiménez De Arechaga, 1958).

Only the idea of a relevant role for nations, of course represented by governments, opens up new alternatives, in theory, to conceive a universal sovereignty. Within this theoretical scenario, in the first years of deliberations of the Sixth Committee of the General Assembly of the United Nations, it is proposed in speculative terms that one might even think of a “universal sovereignty”, so that the national states administer their delegated sovereign portions. , while the International Community kept for itself, exclusively, sovereign powers to deploy actions in very specific matters such as those related to the preservation of world peace and security, state cooperation and the dissemination and respect of human rights (Heller & Heller, 1995).

Along the same lines, in the theoretical proposal of universal sovereignty, which of course was not accepted by the major political powers in the world, the international community maintained the probable reserve of holding national states to account for administrators of portions of sovereignty.

Consequently, it would be the organized community of nations itself that would request accountability, so it would not depend on preponderant States, even when it is accepted that these have implicit powers, not described in the United Nations Charter, that they give them greater responsibilities.

This theoretical conception announces the possibility of creating a globalized universal administration, which would guarantee the rights and interests of medium and small States, but which in a certain way would limit the powers of the major Powers, which are reluctant to accept that the national States had entered deteriorating, as regards the application of its sovereignty.

In later years, when the concept of the phenomenon of globalization is accepted, the creation of blocks and megablocks returns the prominence to the regional Powers, which demonstrate in practice that their particular national states, namely the world powers, have not declined. in their powers to exercise sovereign actions, with repercussions in their respective regions and even in the entire planet.

The so-called implicit powers include, for example, the right to veto granted to the permanent member states of the United Nations Security Council, under the notion of preserving a world equilibrium born precisely in the postwar period, a balance that grants sufficient power to stop changes or to avoid the approval of some resolutions that may violate that power reserved for the states that won the war.

Consequently, with the exercise of these special powers, not shared with medium and small States of the International Community, a new world equilibrium is sustained, which is later drawn as bipolar, which aims to safeguard world peace and security and is nourished by “Values” defended by states that won the war and that were imposed on the “anti values”, proposed and that tried to be equally imposed on the world, by the fascist powers.

This confrontation between values and anti-values, because in the formation of Global Law I also propose that national legal systems will gradually adopt globalized rights standards, which are based precisely on the values, described in the principles included in the Charter of the United Nations and in the Constitutions of its member states.

However, to return to the world balance that was intended to be established, a practical rupture of it was born at the same time as the proposal to create a new international community, due to the presence of two of the emerging powers, also triumphant, who support a balance bipolar political powers, supported by the threat of the use of devastating military force. Bipolarity is alien to the original conception of a new international community of peoples, equal in rights and backed by a universal political power.

As an aggravating factor for the medium and small states, which could have benefited from a globalized community, there was and remains an imbalance in the representation of the international community by the members of the Security Council, which affirms the United States (USA) and the then Union of Soviet Socialist Republics (USSR) as consolidated emerging powers and retains for the victorious allies, powers similar to those of the two powers, for maintaining that they have greater responsibilities for the preservation of world peace and security, only the two powers emerging countries and their war-victorious allies, not the other member states of the United Nations.

Despite the imbalance in world representation, the demand for accounts works through the commitment expressly made by the member states to accept the resolutions and mandates of the international community. In reality, the new International Law of mandatory compliance, the so-called “jus cogens”, may resemble an incipient Global Law, even when the latter, the Global Law, does not respond to an express commitment of the States to put it into effect (Monroy Cabra, 1998).

It is convenient to establish as a premise that in those first decades of the new political, economic and social orders, there is no clear conception of what Global Law could be, which is only taking force in the face of the globalization process, in which the community current international, is immersed.

As already mentioned, the postwar period is a crucial event in the formation of a Universal Law. The characteristics of the contemporary globalization process may be a collateral result of the objectives set by the allies who won the Second World War. Indeed, immediately after peace was reached, the winning allies made public their desire to establish a “new world order” (Huntington, 2015), capable of ensuring a lasting peace by avoiding a third world conflagration.

Furthermore, globalization as such is not made explicit as one of the objectives of the winning alliance. Alliance that proposed new interstate relations orders sufficiently cohesive to prevent a third world war, but not to close all the escape valves of human violence that could be unleashed from the magnifications of the political positions of the victors or the losers.

The new interstate relations orders were designed as mechanisms to avoid a world catastrophe. In addition, they maintained sufficient flexibility so as not to restrict the development of the victorious powers, guided by their particular ideological channels and their own economic recipes. This means that, in the two decades after its establishment, there still does not exist in the new organization of the international community, some sign of deterioration of the national state of the powers, particularly with regard to the political elements that are very clear in globalization. current (Ripol, 1994).

On the contrary, if the deterioration of the new States is evident, of those that emerged in the second postwar period due to the so-called decolonization process, because there is no doubt about the scant development of integration processes in Africa, Latin America and elsewhere. the South Pacific. Without too much contrast, the integrationist processes in Asia have fared better (Mayntz, 2002).

In the first decades that follow what I have indicated as the probable dawn of Global Law, contrary to the determination of the present globalization process, it was observed that the consolidation of a single world power was impossible to propose even among the victorious powers. It is so much so that, after the Second War, the Cold War began practically without rest. The evident approaches of the two emerging powers: the former Soviet Union that claimed its place of preponderance for having sacrificed thousands of its soldiers, and the United States that was called to act as saviors and as the surest sources for the reconstruction of the world ravaged by war (Gardner, 1994); they were the ideal terrain for a new fight, without an official declaration of hostilities.

The differences that gave rise to the Cold War were so profound that political universalization had to wait until an unquestioned winner emerged from this unarmed conflict. Meanwhile, the consolidation of balanced powers in political bipolarity should leave the valves open for détente. The Korean War was the first valve that was put into operation to “measure” the potential of each of the axes and to see if a third world confrontation could be avoided, with sector wars.

With the powers occupied in promoting one or another pole of the balance, there were very few coincidences in the world to build the orders that the new world organization proposes in consideration of the principles contained in the Charter of the United Nations. Probably it was not taken into account that its development shows a deterioration of the allied and associated nation states, with each of the two axes, and furthermore, it configures an unprecedented mechanism of political, economic and social universalization: this is the process of globalization, understood as an unplanned by-product of the new orders.

For this reason, it is admissible to suppose that globalization is an unforeseen phenomenon, derived from the construction of previously unknown orders. Since the beginning of the new world organization, the efforts made in paradigmatic matters such as Human Rights, the advancement of international trade and the validity of legal systems with universal scope - Maritime Law, Air Law, Space Law - have contributed greatly to the promotion of the globalization. Phenomenon that, from this perspective, created the possibility of the existence of a Global Law.

At some point in the search for the few common points to the two poles of political equilibrium, the strengthening of the concept of international community had to be accepted, with the tacit reservations of aspiring to lead it, at the end of the already manifest ideological confrontation (the Cold War), by one or the other of the two poles of the political balance of that time (Díez de Velasco-Vallejo, 1994).

Either way, the dominant powers agreed that greater firmness was needed to strengthen the international community. The two powers and their respective allies knew that it was necessary to avoid a fiasco similar to the one that occurred after the First World War. To this end, with all the implicit reservations and outlined ambitions, it was taken for granted, by all the protagonists, that the new international community should be united thanks to “principles” included in a solemn pact: the Charter of the United Nations, which recognizes them worldwide validity. Initially, a little more than 50 States were the ones who recognized these principles that, gradually, have been laying the foundations for the construction of a new world organization. Currently, 190 States apply these guidelines (Herdegen, 2005).

It could be discussed, at present, whether the intervention of the organized international community, determined in Chapter VII of the United Nations Charter for the use of force against States that affect or violate international peace and security, is a dead letter.

Apart from the fact that, currently, contemporary globalization poses at least three rivalries and, the new globalized order is not within the powers of the international community, even when they are placed on a higher plane than the sovereign powers that remain for each national state (Wahl, 1997).

It is for all this explanation that the globalization that I propose, grants a different control to that of the administration of the portions of sovereignty of the international community, supposedly given under reserve to each one of the national states. For this reason, the single direction of the globalization process would not correspond to the current international community, but it does not prevent a particular power and its allies or a multipolar world from determining that direction or its redirection, within a new balance between powers and allies. and successful integration processes (Huntington, 1999).

The theoretical concept, not universally recognized, of universal sovereignty divided into portions, is alien to globalization that rests on two fundamental pillars. The first, the definitive end of the national State, as a political conception and, the second, the appearance of a new concept that regulates the conduct of States immersed in blocks and mega blocks of dissimilar origins, but all created and maintained as adequate responses to the process. of globalization.

In this scenario that I envision, national identities are lost. Some would be diffuse in the blocks and mega blocks. Others, in the best of cases, would be recognizable by the contributions of each power and its allies or of each successful integration process, in the elements of globalized institutions, in direct relation to the value of their contributions to configure an adequate response to the phenomenon of globalization.

If a reservation can be made in the panorama described, it is because the idea of the support of contemporary Global Law is not linked to the concept of international community. However, both this Law and community strengthening, under the parameters that are still present, have a direct relationship with the decline of nation states.

Likewise, in the political balances that the world has experienced since the end of the Second War, it is possible to conclude that not all nation states have seen their sovereignty deteriorate. In these first years of the 21st century, it can be seen that the alliances of powerful states, which combine their particular sovereignties by using their implicit powers, acquire greater power than the organized international community (Posso Serrano, 2015).

It is possible to insist on the formation of contemporary Global Law, fundamentally because the purpose of unifying the application of a single legal system is not foreign to humanity. In effect, in the worlds that were known to imperialist powers, an attempt was made to impose a single Law, that of the region’s hegemonic power (Mascareño, 2007).

In Asia, for example, China by extending its empire took its Law as a basis for coexistence of the subject peoples. Of course, the imposition of an imperialist state against smaller states could not be considered, because the current conception of the state does not coincide with the imperial deployment of antiquity. Even so, it is evident that there was the purpose of having the same Law for the entire empire, which from the point of view of the Chinese, was the world known to them and above all, the world that China imported.

Also, in his time, the Greeks tried to impose with Alexander the Great, their Law in the entire sphere of the created empire. The same conception of China can be seen in Greece: the law had to reach the whole world that for Alexander mattered.

On the other hand, the Roman Empire further elaborated this sense of universalization of Law. He even came to accept the possibility of applying a particular Roman Law to non-subject peoples, whose individuals associated with Rome in one way or another. Hence, a law of nations (ius gentium) was created, specifically for non-Romans; A fact that can be considered precisely as the origin of International Law (Rawls, 1993).

In times of modern history, the purpose of imposing a single legal order remains quite similar to that of ancient times. The coinciding element, in these ancient and modern endeavors, is in the “imposition.” It is about asserting a Right that comes from a superior political will and that aims to reach the entire territory of the empire. In the ancient conception, the empire reached the known world that was for the dominant political will, the one that mattered. In modernity, empires coexist and reach the areas that power gives them. Consequently, the importance for each empire of the world, in each of its domains, is determined by reason of power.

The so-called Cold War was a clear example of the reach of empire on the basis of royal power. Power that was confronted in an essentially bipolar world, in which alliances reached their maximum historical dimension. While the West, for reasons of power, accepted “sharing”; The East had a power that rests on the greater force of a dominant political will. The end of the Cold War allowed conclusions to be drawn about the stability of an empire and its rival. The conclusions allow us to appreciate the strategies of the game in the reached equilibrium and, perhaps with a small margin of error, it can be said that sharing power offers better stability results.

In the contemporary world, we start from a basic principle of legal equality of all States (Borowski, 2003). In addition, it is proposed that in this theoretical sovereign equality, there are state contributions for the creation, maintenance and strengthening of the organized international community. Of course, the exercise of the so-called implicit powers, already mentioned, means that certain Member States come to have greater responsibilities than others, in this supposed equal contribution. Furthermore, the vindication of their particular national sovereignties leads to the real presence of greater political wills, which could also, eventually, impose their own rights.

The importance of the contribution is still currently rooted in power, but it is even more relative to the possibilities that each alliance distributes to the allies. In such a way, the greater contribution appreciated by the alliance’s core power could lead to greater possibilities of sharing the benefits of its intervention.

In confirmation of the previous assertion, it should be noted that the current data and statistics explain that the reconstruction of a State intervened by force, in charge of an alliance, usually costs three times more than what is used for the submission of the State intervened. Consequently, the greater contribution of a determined ally in the subjugation operations should lead to a greater participation of that State in the reconstruction tasks of the one that has been intervened (Merino, 2006).

In any case, leaving aside a possible cynical interested participation, it is evident that the way of exercising the implicit powers is very close to the greater political will, in antiquity and in modern times, to impose a Law. The germ of Global Law of the ancient empires and of the modern era, differs from the hegemony projected in contemporary times because there is currently a new fundamental element, which did not appear in ancient times but which had an important support in the modern era: power shared in alliances. Power that could not be drawn in the empire of Alexander or the later Roman.

In virtue of this, it may be correct to affirm that in our days, the consolidation of a world hegemony like that of the United States presupposes the idea of sharing power. Washington’s allies are essential to carry out any manifestation of dominance. Above all, in use of the implicit powers of the United States, under the conception of the greater responsibility of the power in the tasks of preservation of peace and international security (Keohane, 1993).

Regarding the formation of Global Law, despite the alliance with all the indications of sharing political power, the United States apparently is inclined to impose its Law rather than join a universal one of community origin. The preference for its own legal order was evident when it was tried to counteract the harmful effects of climate change; with the validity of the Rome Statute of the International Criminal Court; and even with the position of Washington in the Rounds of Negotiation of the WTO (World Trade Organization) (Silva, 2001).

Continuing with the United States, its main allies are not very willing to accept the imposition of their legal order. They intend to create an order that has greater support in their community and, therefore, that can be better projected in a world in the process of globalization. Hence, European Community Law could be that supported by political wills that share the benefit of power (which comes mainly from Washington) but that do not fully embrace the possibility of adopting US Law as the basis for projection of Contemporary Global Law. It is clear that the European Union (EU) would lean because Global Law, which arises from the West, has an important content of its common law, that created by the successful efforts of community integration.

Moreover, the rest of the Western world can turn to integration, perhaps not to access the possibility of sharing the political power currently consolidated by the United States, but to claim responsibilities defined in the formation of Global Law, the sustained “ adequate response ”to globalization. The contribution that the integration of these countries can offer constitutes a mechanism to safeguard, as far as it may fit, the legal personality and the particular principles of the integrated States.

In the same way, emerging powers in Asia could attract new allies around them. The other States are already trying to strengthen their own integration processes and those minor ones, who were not taken into account or who do not carry out serious integration processes, run the risk of being absorbed without benefit of inventory.

On the other hand, Africa shows a pessimistic scenario in this concept. The integration processes are still scattered on the continent, south of the Sahara. While, to the north, the Maghreb continues to struggle between modernity with western features and the orthodoxy of fundamentalist Islamism (Midón, 1998).

The fundamental problem of the Maghreb and other predominantly Muslim States is that in the formation of Global Law an important contribution of Islamic Law cannot be drawn. This does not deny the growth of political influence in the Muslim world, which can become a source of alliances currently unthinkable. However, the principled characteristics that contemporary Global Law must have are those that hinder the legal contribution of Islamic Law (Riosalido, 1993).

It is important to consider that the surprising alliances, due to the political influence of the Muslim States, could give rise to conceptions of successive goals, which would be achieved with the application of coinciding principles in the field of the new Global Law. The goals achieved could be thought of as processes, in which some States would not be complicated to participate and achieve the proposed objectives, while for others institutional adjustments would be required first. The same ones that, in turn, can be more difficult to carry out in certain States than in others. The principled transformation of Islamic Law therefore implies a task with very complicated contours.

Due to the above, contemporary Global Law is still in the process of formation and therefore cannot be noted immovable characteristics, since the unquestionable link of this Law with international politics allows to foresee incalculable developments.

“Furthermore, it is possible to refer to an application in Law of the usual mechanisms of political analysis. This implies building scenarios based on situations that the world currently contemplates and the reactions that could, with fundamentals, occur in the near future (Mereminskaya and Mascareño, 2005).

Along these lines, a fantasy scenario has no value whatsoever to envision the formation of contemporary Global Law. A decade ago, presuming that the world would be legally “multipolar”, for example, was based on the conviction that the then emerging powers were going to continue along the path of political consolidation that they demonstrated in their origins. However, unforeseen circumstances may occur, such as the strengthening of the Islamic State, which among its objectives also has globalization, under the aegis of Muslim fundamentalist principles that presuppose an imposition (Ferrero, 2015).

It should be borne in mind that the response to Islamic globalization is not comparable to that proposed in Latin American integration processes, such as ALBA (Bolivarian Alliance for the Peoples of our America) and UNASUR (Union of South American Nations) itself. Above all, because the latter were focused on a response to globalization that, they take for granted, has been orchestrated by the United States (Rosenthal, 1991).

The confrontation of “adequate answers” could currently be examined with certain political foundations that would allow to arrive at a reply that could be described as “western” (for explanatory purposes) and that would open the way to seek alliances with States, including Muslims, that are seen affected by Islamic globalization.

In that order, a legal conditioning of the non-fundamentalist Muslim state systems is foreseeable, the same that could be confused with a “westernization” of its own law. It is unreasonable to believe that Islamic fundamentalism will warm up to move closer to Western globalization, since the strength of the Islamic State is precisely in the purity of its principles and in the political radicalization of its legal institutions.

Along these lines, it could be assumed that at the same time that the Western response to globalization benefits from the legal contribution of non-fundamentalist Muslim states, the Western response itself becomes more tolerant in determining the sources of the principles that shape it. Global Law. Likewise, in the admission of successive objectives of the legal-political institutions, in such a way that the new States that would join the “response” have more time and use other considerations, to make the necessary adjustments in their legal systems, in concordance with Global Law.

Although the proposed extreme is obvious, it is probably more difficult to draw scenarios in which the responses and positions would be similar. Thus, the globalizing proposal of the United States cannot be conceived as essentially different from the one that may come from the EU (Barbé, 2005).

Then, for the construction of scenarios, it will be necessary to appreciate the virtualities of the major political influences for the formation of Global Law. On the one hand, the potentialities of the United States to impose its system have certain limits in the very conformation of the hegemonic power that is projected in the current world. On the other hand, the achievement of the political goals of the European Union is supposed to affect Washington’s position to “give in” on matters, especially those in which the legal approach is shared.

The modified political position of the US has to affect the proposed goals, not achieved, in the integration processes of Latin America. In particular, ALBA and UNASUR, in order not to collapse, could have “discovered” political positions similar to those of Europe, already accepted within the eventual US proposal, examined here as another possible scenario (Serbin, 2007).

If so, the rapprochement of Latin America cannot be ruled out, even if one examines the history of the integration of the subcontinent and the systematic defaults. The pre-existence of shared “goals”, in the scenario under analysis, thanks to the European contribution, would soften the demand for a greater effort from the region, so that its legal personality and interests are respected by globalization.

In another derivation of the previous scenario, it would be naive to aspire for the EU to be the one to join the United States’ globalization proposal, eventually modified by pressure from Latin America. Until now, European integration, despite the crisis in the euro zone and the exit of the United Kingdom (Young, 2016) known as “Brexit”, looks much more concrete than the pale results of the multiple integration processes of the Latin American subcontinent, who repeat their objectives and propose higher goals, before having achieved the lower ones.

Consequently, it is not practical to presume that Latin America would be able to promote its “adequate response” to globalization, in such a way that it would force the United States to modify its response. The same one that, once altered, will encourage Europeans to join it.

Due to this, the construction of scenarios could be infinite. Even each scenario itself could give rise to many considerations. It is possible, perhaps, to propose three basic lines of analysis in order to glimpse a Global Law, currently in formation, faithful to the globalization process: scope of the imposition of a greater political will; contributions of national states to the process of formation of world law; and multiplication of national potentialities by virtue of successful integration processes.

In the first line of analysis, the application of international conventions of a universal nature takes great relevance, which have uniformly and substantially modified domestic norms of the member states regarding Human Rights. Rights that are included as paradigms in the Constitutions and state application norms, whose breach or violation leads to censorship and rejection of international public opinion and, in some cases, even the intervention of international jurisdictional bodies.

On the other hand, the second point of consideration gives an important role to the models of legislation proposed, for example in labor matters by the International Labor Organization (ILO), in industrial matters by the United Nations Organization for Industrial Development (UNIDO), on Private International Law by the United Nations Commission for the Development of Private International Law (UNCITRAL / UNCITRAL). All these models have managed to unify the respective national laws, which adopted them to create laws according to their own legislative procedures. Likewise, the application of international standards on Intellectual Property and Copyright is another important example of the true influence of international models in domestic legislation.

In the line of recognition of these contributions, within the third area of analysis, it is necessary to point out all the achievements in trade matters of the old GATT (General Agreement on Customs Tariffs and Trade) and the current WTO (World Trade Organization). Perhaps it is even correct to say that the new international economic order gave rise to globalization: that from the economic, from trade, to the cultural and, later, to the political.

In short, the list could be enriched with International Criminal Law, Maritime Law, Treaty Law, Air and Space Law, and many other manifestations that started from a principled proposal, which after having been analyzed by experts, became politically evaluated. . Finally, the governments pledged their political will to make their own, with greater value than that which they give to their national laws, to these ordinances that, put into effect and applied in accordance with the different legal traditions, have proven not impossible to get along in the practice.

In the same sense, comparative legislation, which has grown very significantly in recent years, shows that there are many common elements between national legal systems around the world and that it is not difficult to assimilate a rule of foreign legislation, which for sharing realities, it may be convenient for another internal legal system.

In conclusion, it would be necessary to foresee at least these three pillars of analysis enunciated to be able to glimpse the characteristics of the formation of a Law that is called global, only by deducing that an unstoppable process of globalization must seek its own legal order, which from the political point of view, it would be essential.

2. ESSENTIAL CONCEPTION OF GLOBAL LAW

Regarding the practical application of Global Law, it is necessary to consider the common guiding principles, but not necessarily shared, under the influence of hegemonic alliances. This, despite the fact that Community Law is based on the purpose of “sharing”, without this meaning eliminating the possibility of imposing a successful integration process on another or others that had made little progress or simply failed (Alexy, 2003).

Therefore, it is necessary to find the reasons to sustain that the Global Law institutions that are being formed must respond to concepts, taken as ideals in some cases, or as inevitable in others, because of the imposition.

The practical application of these institutions entails an empirical basis, which is not reflected in codes, which cannot be expected within the scope of Global Law, but rather in the sets of norms of the different community and national legal systems.

Consequently, in order to highlight the essential conception of Global Law, it is necessary to resort again to the guiding principles of Alexy (2003), which are not inappropriate in a contemporary interrelated world where the member states of the international community repeat them in their own Constitutions. The norms of Community Rights, for example, are based on those principles that are the same that serve the hegemonic powers and their allies to draw their supposed “implicit powers”. Currently, they are also useful for managing the supreme benefit of the preservation of international peace and security, which undoubtedly allow to exert a greater influence on the unstoppable march of globalization.

Regarding the real projection of Global Law, it can be taken into account that even when there are guiding principles, the execution and guarantee of the norms are different according to the particular conditions of each State involved in the globalization process. For this reason, a single formal conviction remains, that the results of the norms are shared, even when the advantages of their application are greater for some and less for others.

States that resign themselves to being merely beneficiaries of the process can claim to benefit from globalization without having contributed to its cohesion. However, the dependence coupled with the situation of pure beneficiary, does not allow that State to access all possible benefits, but only those that the influential States and those that managed to insert themselves, with the recognition of the parties, allow it to access (Lins Ribeiro, 2005).

There is evidence that the globalization process also gives rise to a set of influences, when some political entities intend to contribute more to the determination of a “common direction”. Consequently, the search for a better position for each of these entities may respond to various factors of competitive interrelation in many cases, or complementary in others.

An alternative path that can be theoretically developed refers to an integration process sufficiently consolidated to avoid the situation of the dependent State or simple beneficiary of some other successful process. National realities, for this second option, must also be weighed in such a way that they open the way to the exercise of an authentic and sustained convergent political will of the States.

At this point, it is essential to analyze the potential to form an integral, but important, part of an existing integration process, with greater convening power and with consolidated bases. This, before promoting a new process, which would aspire to overcome, without good probabilities, the previous one, and which could eventually serve as a bulwark to achieve a better location in the globalized world.

Indeed, if it is about the imposition of a strategic alliance, the inherent potentialities of the alliance do not make it possible for the lagging State to be considered strategic for its global projection. The same happens within the globalization process, in which it cannot be assumed that it stops due to lack of will or inability to contribute, by any State, with dependency profiles.

2.1. Common elements of national rights

Original Global Law conceived in the manner described, since there is no room to propose a global legislative body, the coincidence in the appreciation of the common elements, based on the principles of validity recognized by the Constitutions of the States of the international community and collected in the Community Organization Charter, under the motto “we the peoples of the United Nations”, allow to have a stable base for the development of Global Law.

The General Principles of Law, consequently, are the common elements of the political concept of “National States”, that is, the States individually considered, when they voluntarily form part of an integration process, which creates a Community Law also guided by these principles.

The agreement of the States and the communities around the acceptance of the validity and validity of the General Principles of Law is not due to chance, since it is probably an inexcusable requirement, proposed by the States for the construction of the new global community.

The original subscribing States to the Charter of the United Nations endorsed those general principles contained in the document and not invented by the jurists of that time. The notion of collecting the principles is based on the certain assumption that they already existed and that they were in force and valid for States that are committed to developing a new form of interstate treatment.

The new interrelation between States establishes specific purposes, precisely based on the principles included in the Charter of the organization, and they take for granted the undertaking in the common task of creating or establishing new orders, to strengthen the harmony that should prevail in the state relations and to give rise to a greater defense and protection of international peace and security.

Globalization is precisely inserted in the creation of the new orders, not as a result sought by the new international community, but as an effect directly related to the new economic and political order, with the consolidation of Human Rights as a universal practice, with international cooperation and solidarity, among other premises that led to the approach to globalization.

3. COMPETENCES OF GLOBAL LAW WITHIN AN INFORMAL PROCESS

In its common sense, competences are the powers of the States, of the International Organizations and of the bodies resulting from an integration process, to know and decide actions and positions on certain matters.

In its origins, the competencies of the nation states were unquestioned and excluded.usivas and their imposition could have even given rise to confrontations between States that did not accept the competences of others.

Then when creating the International Organizations, the States grant competence to them, to deal with issues of common interest, such as the preservation of international peace and security, granted the competence to the United Nations Security Council, or the competence granted to regulate the foreign trade of the European Union, valid for the entire community.

But this classic concept of competences, when it comes to Global Law in training, presents numerous complexities, especially due to the lack of formality of the globalization process. Except for state commitments to undertake an integration process or alliances made by the powers, there is no legal baggage that can serve as the heritage of globalization in terms of competencies.

Although the General Principles of Law are adopted as bases for Original Global Law and are solemnly embodied in international agreements and in the Constitutions of the member states of the international community; There is not really a legal instrument that supports globalization, nor Conventions or Constitutions, which can be considered as proper documents of the legal support of this world phenomenon, or of the establishment of an exclusive global competence, supported by national competences.

It is probably more logical to conceive certain shared competencies between globalization and the States of the international community, even though the latter, to a greater or lesser degree, could have been imposed a global competition, which, in order not to be so drastic, would imply an earlier one. acceptance that states and communities of nations have shared responsibilities in a given matter.

The degree of responsibility of the States will be determined by the convenience or, to avoid the repercussions of the omission and rejection, on the part of civil societies and international public opinion, which will play a very important role.

In some cases, civil societies can push for a certain initially reluctant state to accept global competition. In other cases, they can pressure the state, inclined to give in to pressure from a power or a successful integration process, not to do so.

If all these factors are considered, it is obvious to deduce that the issue of competences comes from the practical application of Global Law. In some matters, those that have a strategic value, global competition appears clearly, without accepting exaggerated lucubrations like those of some years ago, when from Washington he raised a star wars (Bardaji, 1986) that could not hide an arms desire until the extreme of preparing to face eventual extraterrestrial enemies

For this reason, it would be necessary to consider the matters that are convenient for all the States of the international community, for example, security or globalized foreign trade, until the starting point of the competences is directly related to the practice of Global Law.

In the current development of competencies, to better explain the proposal, the competencies that States grant to international organizations or bodies of integrated schemes are exclusive, shared and supportive. When they are exclusive to the organization or community body, the States are obliged to support them; When exclusivity belongs to the States, international organizations or community bodies must support them. When they are shared, organizations, bodies or States share responsibilities regarding the treatment of specific matters.

Then, an eventual global competition would correspond to the powers and their allies or to the integrated community that has carried out a successful globalization process and that demands the necessary support from the States involved. Their contributions constitute non-concerted support powers, but imposed or accepted for convenience. Without this exempting, in any way, the responsibility of each State, which precisely allows its support powers to also be understood as mandatory.

From the point of view of the States, their exclusive competences continue to apply to all matters not included in the globalization process. The harmonization caused by this phenomenon, in the projection and development of each State, gives rise to the exclusive powers of the States progressively diminishing as the integration process advances.

It should be taken into account that, notwithstanding the foregoing, the incidence of the exclusive powers of the States could eventually increase in their own derived global law, which would be the right that each State would apply in its sovereign sphere, as its potential to influence in the globalizing process.

Within the competencies that can be shared during the globalization process, by conviction or convenience, the involvement of the nation states is increasing. Consequently, their contributions increase and it is necessary a gradual conditioning of the legal-political institutions and the norms of national law, towards globalization.

Along the same lines, it is also possible to glimpse that the exclusive powers and support of the globalization process, on the part of national States, go through an evolutionary process that in its early stages depends on the real degree of influence of the powers and their allies or of the States that exhibit a successful integration process. Thus, it is possible to occupy a place of subsidiarity in relation to the domestic application of norms that the national order could not foresee. Thus, the rules of Global Law, in practice, would end up being the only ones applicable.

Shared competencies, in the manner described, and the subsidiary nature of global norms in situations of domestic legal loopholes, support the extension of the scope of practical application of Global Law. The reactions to this extension are located in schemes similar to the integral process of globalization itself.

In other words, for some States it is convenient to extend the scope of domestic powers, while for others it is part of the strategy to gain influence, and finally for some States it will only represent the result of having been forced, by their own circumstances, to adopt global standards.

In terms of competences, it cannot be said that global norms always imply greater rights and powers for the States of the international community or for individuals. However, it can be argued that they function as mechanisms to evaluate the progress of the process and, therefore, the growth or decrease of the obligatory community or national contributions to globalization.

In some specific cases, in matters of trade and global security, it is possible to deduce that the rights and powers of States and individuals have increased. Even so, the balance with the obligations demanded by globalization does not necessarily imply, at a certain stage, a notable decrease in the sovereign powers of the nation states or in the possibilities of influencing the integration processes.

Again, in this matter of competences and areas, mechanisms can be delineated that, in many national sectors, are feared that they are typical of globalization. In other words, mechanisms that open the door to the exercise of new forms of colonization and that offer new instruments to create dependencies. Hence, the efforts of the injured States are also manifested in the defense of their sovereign powers, diminished by the global phenomenon (Coronil, 2004).

Due to the lack of legal formalities and the unconditional nature of globalization, it can be foreseen that from a certain stage of the process it will be much more complicated for medium and small States, which have not resorted to integration, to return to the real application of your previous powers. In many situations, returning to them would be tantamount to increasing their vulnerability, causing their isolation and making it impossible to distinguish the elements of the state legal institutionality, from the characteristic elements of Global Law.

It is therefore almost impossible not to link the situation described above with the opportunity for States to prepare an adequate response to globalization.

4. POLITICAL CONSIDERATIONS IN THE FORMATION OF GLOBAL LAW

Although globalization is an unprecedented phenomenon in human history, there is a possibility that its remote antecedent is the conception of the universal and the local. Precisely through the predominance of one conception or another, imperial expansions take place, which project both a larger political entity to the world, as well as a multiplicity of local political entities determined to impose their personality and abstract themselves completely imposed by the major power.

The expansion of Rome from the “city to the orb” combines the two aforementioned tensions and manages to universalize a political and legal form created, initially, for a city, an entire empire. Despite the existence of a time when expansion shows that the local political-legal model is not sufficient for larger spaces (Iglesias, 1958).

In the same way, it can be noted throughout history that not only the Roman Empire but all of them progressively adopted institutions and political forms, including subjugated entities, in order to prop up the universal conception, which began to crumble as it continued. the noted constant of the confrontation between the universal and the local.

In times after the fall of the Roman Empire, the universal collided with the local. The conflicts between emperors and kings, between the pope and the bishops, are clear examples of this. The modern concept of sovereignty began to be outlined, then, to enter into a process of evolution of the exclusive sovereign King, to share power with the feudal lords; after the King the aristocracies, to share power with the bourgeoisie and merchants; until reaching the granting of sovereignty to the people.

This historical evolution, with ups and downs, due to the presence of dictators and political parties that seek to replace the people, show, in any case, that humanity tried to channel the conquests of power of the people. In this context, it is possible to propose a further evolution, from the local to the universality.

It can even be affirmed that, at the same time, historically, from the universal, a greater political power could be claimed, which when trying to impose itself on national sovereignties, were those considered “minor” and in practice appreciated as such (Clavero, 1994).

Public International Law emerges as a compromising solution in the Peace of Westphalia, to reconcile the efforts of national sovereignties that try to coexist in a field of apparent universal legal equality, not necessarily political, since major powers are recognized. From there, there is a need to join forces, to unite national sovereignties, to form a greater one, which comes precisely from the alliances in vogue (Elliott, 1999).

As a consequence, the universal order that is achieved is ephemeral and its fragility is demonstrated, once again, by the resistance of the local to the universal. After the First World War there is a clear attempt to build an international community, which is not then conceived as global in a contemporary sense, but which gives rise to the unification, under universal concepts, of the relations between nation states. Unfortunately, very soon the imposition of the universal was rejected, the League of Nations was broken and a Second World War began (Owens, Baylis, and Smith, 2017).

The peace achieved after the confrontation between the “principles” of the allied nation states that won the Second World War, against the “anti-principles” of the nation states of the so-called Axis, gave rise to a second attempt to create an international community. This time, to allow the nations and not the national states to create the new orders.

The foregoing always, under the conception of a delivery of important portions of national sovereignty to a common, universal entity, which in certain matters, such as those relating to peace and security, may exhibit a greater power than that of the national States.

He already said, in previous paragraphs, that the theoretical and idealistic conception of universal sovereignty, deposited in the United Nations, is not accepted by the larger national states with imperialist vocations, which faced each other, just signed the Charter of Nations. United, in the so-called Cold War, but even those opposing powers, it is evident that they tried to measure their own political forces, achieved with new alliances, in order to aspire to an expansion towards the universal (Morgenfeld, 2010).

CONCLUSION

Without the last universal organization having been shattered, as happened with the League of Nations before World War II, clear signs have been evidenced that the power game did not end with the forced maintenance of the United Nations and that, There are fields to assert the aspirations of the national states: those of the West and the East; those who defend the values of Christian civilization and those who swear not to rest until the law of the Muslim God rules universally (Segura i Mas, 2014).

While the political concerns are manifested, from sectors that were systematically more influential or from perspectives that were believed to be surpassed by contemporary realities, the global village is a reality and globalized paradigms, as they have been treated throughout this analysis, also achieve progressively and systematically greater validity and applicability. Consequently, despite the new clashes of powers to achieve the universal and the resistance of peripheral states, the globalization process advances.

However, due to the essential informality of globalization, it is risky to propose the stages of this process to determine in which of them societies are now. Even if it was for the sole purpose of estimating the time available to small and mediumsized states to seriously construct the appropriate response to globalization, it is unlikely to determine specific stages.

With the desire to find a true starting path for globalization, perhaps it should be argued that from its various stages, basically those that have to do with the imposition of a greater political will or shared political power, the very concept of it came coupled with the concept of international community, because since the first postwar period, in the last century, it was seen as a goal to project coexistence among human beings, beyond national borders.

The international community, thus conceived, has an important load of principles that, it was supposed, should be guiding the relations between States, based on equality and mutual and consensual submission to achieve a harmonious coexistence. However, the absence of mechanisms of political pressure to always enforce these principles, together with the lack of cohesion of the organization achieved through that first contemporary concept of the international community, were the main reasons for its failure.

Subsequently, in the second attempt at international organization, if greater precautions are taken and a better consolidation of common principles and equally valid for all States is led. Despite this, there have existed and will continue to exist, certain relativisms of compliance that clearly cannot be equated with the total disrespect of the States, which occurred as a result of the formation of the international community that succumbed to the Second World War (Posso Serrano, 2007).

As a result of the second postwar period, the new global society formed changes and encourages, in parallel, the development of a phenomenon that currently has unprecedented contours, since globalization appears with the conceptions of the new orders and feeds on agreements of universal scope.

On the other hand, at the same time that globalization is taking shape, a deterioration of the once unshakable concept of the sovereign powers of the nation states becomes evident. Deterioration that, by the way, affects some States more, since others agree, in principle, with the limitations to their sovereignty although they immediately take safeguards to fully recover it, to the extent that they believe it corresponds to them (Hernández, 2016).

In any case, the principles collected by the international community are appreciated in a more textual way by the new actors in international relations, which are civil societies and international public opinion, which are gradually demanding and obtaining greater participation in this scenario. The new actors rely precisely on globalized paradigms, which reflect the unquestionable validity of the principles and reject the interested interpretations of them, even by their own governments.

With this new perspective, it is not possible to maintain that there is naivety in the new actors in the international community’s relations, in contrast to the prudence and political calculation that distinguish governments. The new actors show greater solidarity with the causes, which, due to a series of technological advances, can currently be shared among civil societies and that, spontaneously, provoke endorsements or censures for developing in accordance or in frank disagreement with the established principles (Orozco, 2005).

In current times it is evident, from complaints and empirical verifications, that humanity faces challenges that, although they cannot be attributed to the disorderly development of societies, are serious never before registered. Consequently, their impact on the lives of all human beings requires that they be addressed in a universal way and that their solutions be planned and executed in the same way.

Climate changes, the globalized push for Human Rights, globalized security, international criminal jurisdiction, among many other aspects, are manifestations of the outcry evident throughout the contemporary world.

For the future, it cannot be determined with sufficient precision what in the globalization process, which has been going on for some decades, has been able to consolidate to this day. Especially in what particularly concerns the practical result of the attempts to universalize the Law.

At present, the need to form an urgent adequate response to the phenomenon of globalization may be more evident, the same that cannot be achieved by a more expeditious way than integration, despite the few results shown in Latin America. under consideration of the risks of isolation or political dependence.

After all these considerations, in matters of Law it should be reiterated that the so-called Global Law is not an imaginary product of the Academy. There are norms of coexistence and interstate relations that are applied globally, and unquestionably a process of globalization is underway, an unexpected product of a conscious construction of new orders (Chomsky, 1996). All this, as a result of the second post-war period and with the aim of establishing a general framework of universal application, which avoids a third conflagration and institutionalizes world solidarity.

The new orders are also aimed at achieving respect for Human Rights, the care and protection of the environment, the proper use of the resources of the sea, the application of common standards for the negotiation of treaties, the minimization of impunity of criminals of war crimes and crimes against humanity, the development of International Humanitarian Law, the universal processes of foreign trade and intellectual property; and finally, other general frameworks of coexistence between States and individuals, cited to support the reality that surrounds globalization and the need for States to face it, in the best possible conditions.

There are certain indications that allow us to conclude that, indeed, globalization is a phenomenon that is advancing, regardless of the will of the States, but that it is not possible to substantiate it in a documented way. The other orders that were intended to be created and that have been developing, since the second postwar period, have documentary evidence: declarations, agreements, protocols, and resolutions of competent bodies, which can constitute reliable evidence that the current world coexists under parameters different in terms of their effects, but recorded in usual ways. On the contrary, in globalization, standardized, universal, but not formal attitudes and results are evidenced.

There is also a generalized view of the inflexibility of the global phenomenon. A phenomenon that does not stop to support the inclusion of a certain community that is in the process of formation, even worse to help a State, individually considered, that shows difficulties to adapt to the new realities of globalized paradigms.

While, on the one hand, globalization politically considered arises from the weakening of nation states, on the other hand, it is clear that such a decline in sovereign state powers becomes much more visible in relation to the specific power of each one of them. For this reason, globalization affects more medium-sized states and especially small ones, which already suffer from a dependency relationship that could easily worsen (Badie, 1995).

The solution that is envisioned for the States, especially for the small ones, is directly related to their contributions to globalization, which although it has not been sought by the powers and their allies or by the successful integration processes, it is taken advantage of for them. Therefore, it remains to look for the best possible conditions to specify an adequate response to the global phenomenon, by States with minor sovereign manifestations.

Global Law must be conceived as one of those tools that provide the “best possible conditions” for States. Either because they want to take advantage of globalization for their benefit and that of their allies, or because they are determined to build an adequate response to save as much as possible of their own legalpolitical institutions and avoid falling into greater dependency.

Being so, of generalized use by the States, but with totally dissimilar objectives, it is not possible to claim a precision in the paradigms that Global Law could eventually invoke, except for certain principles of Law, also general, that the States agree to accept as current and valid (Bello, 1873).

Then, the tool of common use for different purposes, Global Law, cannot enjoy legal autonomy for its formation, since it depends on the policies and actions that the States determine for their specific purposes in the face of globalization. Either because they want to take advantage of a phenomenon that inflexibly follows its march and that denotes facets that can be exploited, or because it is necessary to hasten the configuration of the “adequate response” to globalization, especially by other less fortunate States in their attempts to integrate.

State policies, strategies and actions can be delineated according to the analyzes made of the current political games and interinfluences, always anticipating situations not currently established and the appearance of new political subjects with sufficient power to seek and achieve prominence. Global Law, in these planning, must be a mechanism to carry out actions and strategies that allow it to be useful for any State, regardless of its situation and intention in the face of globalization.

The value of Global Law is, consequently, in the Law itself. Its practical application will denote the convenience for society, within a global frame of reference. Policies to take advantage of globalization or to build an adequate response, have to have a real universal impact so that the influences that it is intended to achieve can be awarded.

Your own opinion on the convenience and certainty of Global Law, according to the criteria of planners and by inspiration of them or of national legislators who provide legal norms to support or complement global norms, is not enough. What really should prevail is the practical result, measured according to globalized parameters.

From what has been noted, an unavoidable element of consideration is the real capacity to achieve a global impact, each State individually or together with other “pairs” with similar capacities. The purpose of Global Law, under this meaning, is to demonstrate the benefit that some States can obtain from globalization. While others, generally medium and small, seek to reduce or mitigate its harmful effects through the magnification of rights and powers individually considered.

Thus, integration is emerging as a convenient vehicle to achieve impact, especially if national capacities and potential are scarce and politically vulnerable. In this case, the achievement of greater rights and real powers must be assumed as a convenient measure for national companies.

In the tasks of determining the structure of Global Law, seeking its usefulness for the international community, it is possible to foresee its classic sources, which are similar to those of national and community Law. This does not mean that other sources that are imposed by the results of political games and the inter-influence that allow us to anticipate certain results from the political analysis of current realities of each State, the region and the world must be discarded.

In any case and notwithstanding the foregoing, it is possible to design a structure of Global Law that, although it may be eminently theoretical, is close to the probable projections of development of the appreciated attempts of the powers that wish to benefit from globalization and development. verifiable of integration processes, in order to consolidate its global influence.

Under this scheme, it is also possible to foresee certain institutions for Global Law. Some of them are stable, which respond to principles universally accepted as valid and in force, even having considered the true risk of relative non-compliance by States of the international community and other institutions, essentially changing due to the development of globalization and the ups and downs of the political game and growing interinfluence (Posso Serrano, 2007).

If only those institutions were taken as a reference, the characteristics of Global Law would not correspond to conventional formulas. It is true that this Law has characteristics similar to national legal systems, however, its practical application is rather similar to that of Public International Law, due to the fact that: not all of its norms have sufficient force to force compliance; the lack of effectiveness, and even of global actions or resources, give rise to Global and International Law, being considered imperfect; and the substantial difference between these two legal orders lies precisely in the inflexibility of the first, which responds to the characteristics of globalization.

Additionally, there is another contrast if it is considered that it is possible to defend, with the application of jus cogens, the binding nature of certain rules of Public International Law in the commitments that sovereign States have undertaken to fulfill. Always remembering that, in no way is it possible to resort to international conventions that formally support globalization, nor to Global Law standards, except perhaps the provisions of international conventions of universal scope, adopted by the States of the international community, and not imposed by the circumstances caused by the unstoppable march of the phenomenon of globalization.

Moreover, due to the absence of basic foundational conventions of globalization, the practical application of Global Law lies in the convenience and political utilitarianism that, if they do not come to exclude ethical contents, they diminish them mainly, especially within what can be called global derivative law.

For this same reason, the resources that can be provided for States and individuals to enforce the rules of Global Law depend on political expediency and are due to pressure from other States and civil societies.

Along these lines, the resources that are determined as protection systems must be, for convenience or as a result of political pressure, in the national legal systems, and ideally, in all the legal systems of each of the States immersed in the globalization.

Due to the particular characteristics of this Law, the eventual sanctions that are determined, by virtue of the remedies provided for in the national legal systems, cannot be other than logic demands. In other words, the non-compliant and non-compliant States will be isolated from the globalization process and, consequently, will be excluded from its benefits.

However, it is possible to conceive the Global Law protection system with a principled content. Above all, because the state’s subjection to the general principles of international coexistence is the result of a commitment, of the powers and of the successful integration processes, to allow the incorporation and development of new ones.

This, at the same time that such subjection constitutes the minimum guarantee of respect for the institutions and juridical-political personalities of small or ineffective States, which would be vital to carry out serious integration processes.

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Enlace alternativo

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