HUMANS AND RIGHTS: COLONIALISM, COMMERCE, AND GLOBALIZATION
GLOBALIZATION, NATIONALISM, & HUMAN RIGHTS
Paul H. Brietllce•
I. INTRODUCTION .................................... 633
II.GLOBALIZATION ................................... 641
m.HuMAN RIGHTs .................................... 655
IV. NATIONALISM ..................................... 663
V. (UN)COMMON ELEMENTS ............................ 671
VI. How AND WHY INTERNATIONAL LEGAL PROCESSES
(DO NOT) WORK ................................... 676
VII. WORKS IN PROGRESS ................................ 690
I. INTRODUCTION
This Essay will trace a significant and growing clash among
three cultures, and thus among the two and one-half bodies of
international law that are these cultures' causes as well as their
effects. Globalization and human rights reflect ever more fully
elaborated bodies of culture and law, bodies which contradict
traditional notions of a state sovereignty. Nationalism, on the
other hand, pursues sovereignty for particular groups through
locally-compelling cultures, linked to a sketchy and rather
* Professor, Valparaiso University Law School (U.S.A.). B.A.,
Lake Forest; J.D., University of Wisconsin; Ph.D., University of
London. Criticisms are welcomed at my email address:
Paul.Brietzke@valpo. edu. This Essay was presented to the
Reconstituting Constitutions and Cultures Conference, San Juan,
Dec. 2004. Mistakes of fact and interpretation remain my
responsibility, but I am grateful to the following for their
comments and criticisms: Ivan Bodensteiner, Tom Ginsberg, Rebecca
Huss, Becky Jacobs, JoEllen Lind, James Loeb!, Sy Moskowitz, and
Jeremy Telman.
633
634 FWRIDA JOURNAL OF INTERNATIONAL LAW [Vol. 17
incoherent international law of self-determination. 1 Together,
these bodies of law and culture illustrate many of the diverse
features of the international arena, and many of the problems and
prospects of global development. With the exception of dispute
resolution under the World Trade Organization, institutions that
try to interpret, apply, and enforce these bodies of international
law are rudimentary. These bodies of international law have
founding documents but no governing constitutions. A useful analogy
would be an attempt to govern the United States on the basis of the
Declaration of Independence rather than the U.S. Constitution.
These international documents perpetuate cultural as well as legal
clashes by treating their creations as separate and sometimes
rivalrous defacto.2
Few legal, political or military resources are used to integrate
either the
legal concepts or the demands that press for recognition along
these three separate tracks. Each body of culture and law is
unlimited in theory, and in the practices of the underdeveloped
institutions applying them. For each of these bodies, there is
little in the way of formal checks and balances or allocations of
spheres of competence that often keep cultural and legal clashes
from getting out of hand in some countries. In addition to some bad
things, the many good things that these "movements" can contribute
(i.e., ways of reducing suffering and enhancing dignity), are often
dissipated through clashes that spawn undesirable side effects.3
Thus, this Essay will discuss some ideas about understanding and
perhaps remedying such a state of international affairs.4
1. See Paul Brietzke, Self-Determination, or Jurisprudential
Confusion Exacerbating
Political Conflict, 14 Wrs.INT'LL.J. 69 (1995).
2. JOHN HowARD JACKSON, THE JURISPRUDENCE OF GATI AND THE WTO:
INSIGHTS ON TREATY LAW AND ECONOMIC RELATIONS 3 (2000); SHEU.EY
WRIGHT, INTERNATIONAL HUMAN RIGHTS, DECOLONIZATION &
GLOBALISATION: BECOMING HUMAN 22-23 (2001) (It is as if the
international law of human rights and the international law of
globalization and development have been progressing within parallel
universes, "but there are signs that the separations of economic
thinking and human rights may be diminishing.").
3. E.g.,
JOSEPHSTIGUTZ,GLOBALIZATION&ITSDISCONTENTS20(2002)("globalization
... is neither good nor bad.It has the power to do enormous good,"
but it creates few benefits for many countries and has been an
"unmitigated disaster" in some countries); Sundhya Pahuja, This is
the World: Have Faith, 15 ENT. J.INT'LL. 381, 385-86 (2002) (like
other "good"things, human rights can be abused, manipulated, or
distorted). See infra text accompanying notes 97-100.
4. See infra text accompanying notes 102-29.
2005) HUMANS AND RIGHTS: COWNIAUSM, COMMERCE, AND GWBAUZATION
635
The nature of "cultures,"5 and the influences they exert on
legal processes, are probably the most contentious issues in legal
sociology and anthropology.6 Cultural projections, such as values
and ideas shaped by media groups, interest groups, national and
international agencies, and laws, present a public self-image and
comprehension that differs from
5. E.g., PETER BEYER, REUGION &GWBALIZATION 1-2 (1994)
(increasingly dense links of worldwide communication make contact
and culture clash almost unavoidable, while providing a common
context); ROGER COTIERREIL, The Concept of Legal Culture, in
COMPARING LEGAL CULTURES 13 (David Nelken ed., 1997) (Lawrence
Friedman's definitions have changed over twenty-five years-public
knowledge, attitudes and behavior toward law, organically related
to culture as a whole; then, those parts of general culture that
bend social forces toward or away from law; and later eliminating
behavioral and stressing ideational elements); id. at 19 (in
Friedman's LEGAL SYSTEM interests, mediated by general culture,
create the demands that, lead to legal acts but "real people . . .
are at work"); id. (along with factors like the distribution of
influence and power, legal culture influences the pace of demands
and solutions, and also legal structures); id. at
20 (Friedman admits that legal culture is a slippery abstraction
resting on shaky evidence, and serving an artistic rather than
scientific function); Cotterrell, The Concept of Legal Culture in
Compairing Legal Culture at 21-23 (much of legal culture can be
understood as a timeless and coherent ideology, shaped by
developing, interpreting, and applying a "tyically fragmented,
intricate and transient" legal doctrine); Cotterrell, Law in
Culture, 17 RATIO JURis 1, 1 (2004) (culture, the central issue of
many juristic inquiries, is indefinite, disparate, and composed of
different social relations within and among communities); id. at 4
(culture dominates law, in the sense that meanings cannot be secure
in the absence of a cultural context); LAWRENCE FRIEDMAN, The
Concept of Legal Culture: A Reply, in COMPARING LEGALCULTURES,
supra,at 23 (other social science concepts are equally
vague-structure, institution, system, judge, doctrine); MICHAEL
KING, Legal Cultures in the Quest for Law's Identity, in COMPARING
LEGAL CULTURES, supra, at
119 (comparing legal cultures can be fun, involving travel, new
languages, friends, and food and making accessible what had been
veiled); Kim Scheppele, Legal Theory and Social Theory, 20
ANN. REv.Soc. 383,384 (1994)(sociology and jurisprudence are
"increasingly focused on cultural products ... : representations,
mentalities, texts, and images."); RAYMOND WIU.JAMs, Culture &
Civilization, in 2 ENCYCWPEDIA OF PHIWSOPHY 273,275 (1967) (the
lack of a coherent cultural methodology in the social sciences
caused by basic theoretical disputes over the nature of the
evidence); RAYMOND WIU..IAMS, KEYWORDS 76 (1976) ("culture" is one
of two or three of the most complex words in English, with an
intricate history and development).
6. E.g., COITERREIL, The Concept of Legal Culture, in COMPARING
LEGAL CULTURES,
supra note 5, at 13 (a purely doctrinal comparative law,
separated from its contextual matrix, is of little value);
Cotterrell, Law in Culture, supra note 5, at 1-2 (cultural context
is important to analyses in comparative law, especially under
conditions of globalization and perceptions of diversity); id. at 2
(law and culture are linked in debates about law as constitutive
-creating meaning-in e.g., feminism, critical race theory, cultural
defenses to criminal liability, defining legal personality, and
shaping expectations, responsibilities, and constraints); id. at
4-5 (law typically assumes the existence of a cultural uniformity,
and even ignores culture under positivist theories); CATHERINE
DAUVERGNE, New Directions for Jurisprudence, in JURISPRUDENCE FOR
AN INTERCONNECTED GWBE 1,8(Catherine Dauvergne ed., 2003) (law and
culture are interdependent, so a legal transplant creates
"unhappiness" unless it responds both to the cultural setting and
to the past it is deployed to amend). The matter is a good deal
more complex than Dauvergne suggests. See Paul Brietzke, The
Politics of Legal Reform, 3 WASH. U.GWBALSTUD. L. REv. 1
(2004).
636 FWRIDA JOURNAL OF INTERNATIONAL LAW [Vol.17
professional understandings about laws. Nonetheless and in
contrast with more general cultures, legal cultures can often be
traced back to known actors reacting to known circumstances. While
international laws and cultures are more remote from public
consciousness, when compared to local or national cultures and
laws, a fairly widespread belief in the efficacy of human rights,
globalization, or national self-determination can have deep
transformative (both educational and hortatory) effects at all
levels of society.7 These international legal cultures reflect the
optimistic expectations of the post-World War II era. For example,
the Bretton Woods system of global economic law and policy, the
Universal Declaration of Human Rights influenced by Eleanor
Roosevelt, and Woodrow Wilson's self-determination that got revived
through the decolonization movement, which continued from the late
1950s. Such expectations are reinforced by a newer, more guarded
optimism, based on the end of the Cold War and hopes for a "New
World Order" that has yet to emerge.
This Essay cannot resolve all of the scholars' legal and
cultural debates, but the (slightly adapted) analysis by Niklas
Luhmann is suitable to our topic.8 His theory is relatively
content-neutral, with no liberal or
7. C01TERREIL, The Concept of Legal Culture,in COMPARING
LEGALCULTURES, supra note
5, at 22, 24; Daniel McCarthy,lmages ofTerror: What We Can and
Can't Know About Terrorism,
91NDEP. REv. (2004) (reviewing Philip Jenkins's 2003 book); see
COTIERRELL, The Concept of Legal Culture, in COMPARING LEGAL
CULTURES, supra note 5, at 17 (like Ernst von Savigny, Lawrence
Friedman contrasts the culture of legal professionals with
external, popular, or lay culture, with the former reflecting the
main traits of the latter); id.at 18 (Max Weber was concerned with
unique historical, intellectual, moral, and social conditions - the
spirit of capitalism, of certain religions, and Western
rationality); Cotterrell, Law in Culture, supra note 5, at lO
(citing Martin Golding, cultural defenses to crime locate
"reasonableness"in cultural circumstances which may be unreasonable
from law's usual standpoint); KING, Legal Cultures in the Quest for
Law's Identity, in COMPARING LEGAL CULTURES, supra note 5, at
126-27 (the culture of the legal subsystem is confined to what law
sees itself controlling through legal means, protecting or
outlawing practices of ethnic minorities for example); id. at 127
(in contrast, the culture of the political subsystem relies on
power differentials among different social groups); Robert
Skidelsky, The Wealth of(Some) Nations, N.Y. TIMEs BooK REv., Dec.
24, 2000, at 8 (reviewing HERNANDO DESOTO, THE MYSTERY
OFCAPITAL(2000) (for de Soto,law rather than culture or religion
stymies entrepreneurship in the third world).
8. A Iegally qualified German sociologist who died in 1998,
Luhmann studied at Harvard under Talcott Parsons; was influenced by
Kant, Weber, and Simmel; had some links with Foucault and Derinda
in his rejection of a metaphysical foundation; and had Jurgen
Habermas as his favorite intellectual rival. He applied new
developments in systems theory to society, especially the
complexity which amounts to a rejection of"Oid European"
sociological methods. MICHAEL KING
&CHRISTHORNHILL,NIKI.ASLUHMANN'STHEORYOFPOLITICSANDLAW58,68(2003);Luhmann's
Systems Theory, available at www.systems-thinking.de/Luhmann.htm
(last visited July 18, 2005). There are "certain limitations" to
such a system which includes everything, when compared to a
2005] HUMANS AND RIGHTS: COWNIAUSM, COMMERCE, AND GWBAUZATION
637
conservative bias, other than a reasoned slant against European
welfare states. Luhmann's theory is driven by "communications," and
it thus dovetails with the communications "revolution" that makes a
global society possible. Video cassettes and web sites create a
sense of solidarity among Muslim activists; services are becoming
as tradeable, globally, as are goods; the national or sovereign
grip on intellectual property law is loosening; and human rights
abuses in remote Darfur, or rival claims about the costs and
benefits of globalization, easily reach a global audience. Foreign
Policy uses as indices of globalization an economic integration,
technological connectivity, personal contact (e.g., tourism and the
transnational remittance of wages), and an international political
engagement.9
sociology of institutions, social action or professions. NIKLAS
LUHMANN, Preface, in LAW AS A SOCIAL SYSTEM vii (Klaus Ziegert
trans., 2004). He claims that a theory too complex to guide the
practice of law is essential to the understanding of necessarily
complex matters. RICHARD NOBLES
& DAVID SCHifF, Introduction, in LAW AS A SOCIAL SYSTEM,
supra, at 6; see Alex Viskovatoff,
Foundations of Niklas Luhmann's Theory of Social Sciences, 29
PHIL. Soc. SCI. 481 (1999) (assessing criticisms of Luhmann as
warranted and unwarranted).
9. JACKSON, supra note 2, at 3-4; KING & THORNHilL, supra
note 8, at 1 (discussing
Luhmann's "social theory of social theories," his attempt to
avoid simplified or reductionist accounts); id. at 126 (Luhmann's
seems a nonprescriptive account of politics); Measuring
Globalization, FOREIGN POL'Y, Mar./Apr. 2004, at 54 (discussing an
A.T. Kearney and Carnegie Endowment Study). See
KINGÞHIIL,supra note 8, at 116 (Luhmann prefers the "law
state over the welfare state," and seeks to rid the latter of
"unnecessary legal authority."); NIKLAS LUHMANN, 0BSERVATIONS ON
MODERNITY 75-76 (1998) (we continue to exist only on the basis of
communication, trying to save ourselves from the bad things); id.
at 85 (citing Anthony Giddens) (telecommunications create an almost
total uncoupling of time and space, as the imaginable world expands
immensely; LUHMANN, Society and Its Law, in LAW AS A SociAL SYSTEM,
supra note 8, at 465 (communications "only prepare the conditions
for the continuation of system operations."); id. at 467 n.l4 (law
makes expectation formation possible); XIARONGLI, "Asian Values"
and the Universality of Human Rights,in
THEPHILOSOPHYOFHUMANR1GHTS397,401(Patrick Hardened.,
2001) (improvements in communication and literacy make
information about repression and injustice more accessible); NOBLES
& SCHifF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note
8, at 48; id. at 49 (while economics and science recognize no
natural boundaries, politics is less developed and operates
primarily through nation-states and secondarily through regional
structures); WALLACE PROVOST, COMPLEX ORGANIZATIONS & NIKLAS
LUHMANN'S SOCIOLOGY OF LAW: THE WORLD AS A SociALSYSTEM (2004) (for
Luhmann one world "integrates all ... horizons as one communicative
system,"including all possibilities); id. (communications must be
meaningful within a subsystem, in order to count); Simon Roberts,
After Government? On Representing Law Without the State, 68 Moo.
L.REv. 1, 1 (2005) (an anthropological discussion of global
"negotiated orders," which are significantly different from state
law); SHAWN TURNBUlL, EMERGENCE OF A GLOBAL BRAIN: FOR AND FROM
WORLD GoVERNANCE (2005) (analyses analogous to Luhmann's, based on
cybernetics and game theory); id. (the need to economize on
information and based on the "governance of
nature"-decentralization, pluralism, and associative relations,
based on "holons"
- each virtually self-governing and with its own processing and
autonomy); Babel Runs
638 FWRIDA JOURNAL OF INTERNATIONAL LAW[Vo1.17
Luhmann's focus is on global cultures as an almost incidental
consequence of modernization, through a functional differentiation
of society, which displaced its stratified (class-based)
differentiation that operated through dominance, and
center-periphery relations. The United Nations measures
modernization on the basis of health, literacy, access to
education, and earned income. Consequently, the United Nations
finds that women tend to be better off under such criteria in more
globally-integrated countries. But, relatively globalized countries
often fare poorly under such criteria if they are vulnerable to
external shocks (i.e., Iran and Venezuela are dependent on the
erratic oil rnarket.)10
The functional (relatively egalitarian and autonomous)
subsystems that emerge during modernization - legal, political,
military, economic, religious, educational, family (where the
relevant communications sometimes express love), scientific,
ecological, health care, and artistic - that generate such
specialized cultural changes as adaptations to surprises and
especially to disappointed expectations within a subsystem. Often,
failed expectations strengthen pressures for legal reform-usually
partial and gradual, for compensation in lieu of change, for
punishment when change is sought without following approved legal
procedures and reasoning, or for an uncertainty of expectations.
While law contributes to an international social order-and to
economics, politics, and the military functioning in particular
ways, it not only accommodates changes but depends on them for
improved operations and for helping global society to understand
itself.
Principles are evaluated on whether they meet (disappointed)
expectations, rather than on the quality of a legal argumentation,
which can also be used to justify contrary outcomes. For Luhmann,
international law
Backwards, ECONOMIST,Jan. 1, 2005, at 62 (thanks to
globalization, there is an accelerated attrition of languages in
favor of a "dominant" English, Spanish, and Chinese).
10. Measuring Globalization, supra note 9, at 64, 67; see
LUHMANN, OBSERVATIONS ON MODERNITY,supra note 9, at 85
("communication has increased in volume, complexity, memory, and
pace."); id. at 255 (either the legal system remains stable,
applying existing rules again and again, or tensions from outside
law create a higher complexity by distinguishing, overruling, or
creating exceptions-resulting in problems of are-stabilization);
Niklas Luhmann, The World Society as a Social System, 81NT'LJ. Soc.
SYS. 131, 132 (1982) [hereinafter Luhmann, The World Society]
(contrasting his subsystems with stratified social ranks and the
creation of"high"cultures); id. at 133 (functionally-differentiated
subsystems depend on a high degree of self-regulation); id.
(functional differentiation arose because, in eighteenth-century
Europe, identity and order problems could not be solved by older
stratification processes); id. (this prompted the first waves of
"self observation" -of law based on law, of education based on
education); WllllAMS, Culture & Civilization, in ENCYCLOPEDIA
OF PHILOSOPHY, supra note 5, at 273 (culture as new ways of
thinking about the large changes occurring in eighteenth and
nineteenth century Europe).
2005] HUMANS AND RIGHTS: COWNIAUSM. COMMERCE, AND GWBAUZATION
639
could always have evolved (by responding to "irritants")
differently, and change does not necessarily move in progressive or
efficient directions. Countries and international processes
frequently develop unevenly, with plenty of backsliding on the road
to modernization. 11
A bewildering variety of global communications creates an
overabundance of possibilities for social action, of choice in
other words. This abundant choice is a double-edged sword. The
future becomes difficult to predict and interacting complexities
cause individuals, groups, states, or international organizations
frequently to lose control over outcomes. The overall result is a
complex global network of meaning. For example, some years ago, a
family in Botswana watching the O.J. Simpson trial on their
Japanese television understood that distinctively legal events were
being communicated. Of course, legal actors also communicate by
nonlegal means, and their communications form part of the
"environment"
11. K!NGÞHIIL,supra note 8, at 34, 47, 55, 57, 159,
212; LUHMANN, OBSERVATIONS
ONMODERNITY,supra note 9, at 101; LUHMANN, LAW AS A SOCIAL
SYSTEM, supra note 8, at 140,
163-64. See KING & THORNHilL, supra note 8, at 24 (for
Luhmann, each subsystem discards irrelevant communications by
applying the lawful/unlawful distinction in law,
government/opposition in politics, and property/not property in
economics); id. at 68 (after the shift to functionality, justice
becomes synonymous with consistency); id. at 134 (Luhmann avoids
the need to explain change on the basis of fixed principles, other
than that of the reduction of complexity); id. at 212 (law
establishes his future expectations, based on what is knowable at
present); LUHMANN, LAW AS A SociAL SYSTEM, supra note 8, at 472
(with modernization comes a growing gap "between demands and
[their] realization" and the increased "disappointment of
politically-fuelled hopes" that Luhmann calls disappointed
expectations elsewhere); id. at 473 (under modernization,
conditions for the validity oflaw switch from static to dynamic);
id. at 474 (given complexity, rationality can mean "a broadening of
the latitude for decision-making with a limitation on decisions
which depend on time"); LUHMANN, OBSERVATIONS ON MODERNITY, supra
note 9, at 19-20 (complexity results in more distinctions becoming
available, and the same thing can be distinguished in many
different ways, so that questions of "Who needs it?" and "Whose
interests are served?" become prominent); Luhmann, The World
Society, supra note 10, at 135 (planning cannot replace an
unplanned evolution, since planning is usually overwhelmed by
unintended side effects); NOBLES & SCHIFF, Introduction, in LAw
AS A SOCIAL SYSTEM, supra note
8, at 52 (''The future is out there, but ... it can only be
grasped through communications."); Yanira Reyes (personal
communication concerning the cycling between development and a
neocolonialism in Latin American law); Viskovatoff, supra note 8
(law's role in the patterning of expectations).
640 FWRIDA JOURNAL OF INTERNATIONAL LAW[Vol. 17
of other subsystems.12 Particular, or localized, cultures
obviously remain, and some of these are discussed later as bases
for nationalism. 13
Luhmann treats such cultures as expressions of community issues
or adaptations from the past, attitudes which lead some religious
and traditional ("the way we do things here") cultures to oppose a
global modernization.14 His view of culture differs substantially
from the conventional, sociologists' and anthropologists' emphasis
on "affective, belief-based and traditional relations of
community."15 Therefore, Luhmann's analyses will be supplemented
with five concepts he arguably
12. BEYER, supra note 5, at 1, 5, 11, 33, 36, 39, 65;
ANDREASLoWENfEID,INTERNATIONAL ECONOMIC LAW 108, 113-14 (2002);
LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9, at
44, 52, 73-74; Luhmann, The World Society,supra note 10, at
131-32, 134-35. See LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8,
at 151 ("there are countless normative expectations without legal
quality-just as there are ... countless goods (for instance, clean
air) without economic quality and ... a whole lot of power without
political quality."). TED GURR, Minorities and Nationalists:
Managing of Ethnopolitical Conflict in the New Century, in
TuRBUlENT PEACE: THE CHAllENGES OFMANAGING INTERNATIONALCONFLICf
163, 167 (Chester Crocker et al. eds., 2001) [hereinafter TuRBUlENT
PEACE]; KING, Legal Cultures in the Quest for Law's Identity, in
COMPARING LEGAL CULTURES, supra note 5, at 122-23, 125, 130;
Luhmann, The World Society, supra note 10, at
131,132,134-35.SeeBEYER,supra noteS, at 15-68(comparingLuhmann's
ideas with those oflmmanuel Wallerstein, John Meyer, and Roland
Robertson); LI, "Asian Values" and the Universality of Human
Rights, in THE PHILOSOPHY OF HUMAN RIGHTS, supra note 9, at 401
(improvements in communication and literacy make information about
repression and injustice more accessible); Luhmann, The World
Society, supra note 10 at 131, 132(contrasting his subsystems with
the stratification of rank and creation of a "high culture" in
families or villages); id. at 133 (differentiated subsystems depend
on a high degree of self-regulation); id. at 134 (small differences
get magnified in a subsystem because they are the basis for further
differentiation); id. at 135 ("planning cannot replace" an
unplanned evolution, since planning only "makes us more dependent
on an unplanned evolution"-or on side effects); id. at 136
(functional differentiation arose because, in eighteenth century
Europe, identity and order problems arose which could not be solved
by older stratification processes); Luhmann, The World Society,
supra note 10, at 135-36 (this prompted the first waves of
"self-observation" -law based on law, education based on
education); Wll.LIAMS, Culture & Civilization, in ENCYCLOPEDIA
OF PHILOSOPHY, supra note 5, at
273 (culture as new ways of thinking about a range of reactions
to the large changes in eighteenth and nineteenth century Europe);
id. at 275 (particular cultures often analyzed as isolated in space
and time); id. (emphasis on cultural relativity since the 1920s, as
a reaction against an ethnocentricity in categories and
values).
13. See infra text accompanying notes 67-69.
14. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 271 ("The
differentiation of the legal system cannot be achieved without the
decomposition of social ties, obligations, and expectations of
help."); id. (social influences on judges are then seen as a form
of corruption); LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9,
at 22 (we can assess the resistance of older cultures, their
capacity for revival and self-assertion).
15. Cotterrell, Law in Culture, supra note 5, at 8.
2005) HUMANS AND RIGHTS: COWNIAUSM, COMMERCE, AND GWBAUZAT/ON
641
plays down, perhaps because he neglects the effects of an
international political underdevelopment.
First, is the way in which wealth and power determine outcomes.
For example, these outcomes are determined by limiting the choices
of the
poor and powerless, within the subsystems Luhmann assumes to be
differentiated, relatively non-hierarchical, and dedicated to a
freedom of communications. Second, is a related elitism operating
in political, economic, and legal subsystems, a presumed holdover
from earlier social stratifications based on class, gender, race,
ethnicity, and neocolonialism. Third, is a need for explicit
legitimation of unevenly modernized (unevenly differentiated and
autonomous) and unintegrated sub-subsystems: in the examples
examined here, economic growth (but not development) for
globalization under an international (and thus weaker) approval for
nationalist/self-determination movements, economic law,
universalization for human rights, and localized rather than
international (and thus weaker) approval for
nationalist/self-determination movements. Fifth, is the perhaps
surprising ways in which U.S. antitrust concepts, oligopolistic
interdependence, and conscious parallelism, can be used to
explained how international legal processes work and do not
work.16
II. GLOBALIZATION
While some commentators see a complex and elusive concept,
others simply call globalization the most powerful and quickly
accelerating trend in the world today. 17 Joseph Stiglitz offers a
serviceable definition of globalization. Stiglitz describes
globalization as an integration of, and thus a cost savings in,
transport and communications; and marked reductions in artificial
barriers to the transnational movement of goods and services,
capital, technology, various forms of knowledge, and (to a lesser
extent)
16. Brietzke, supra note 6; PROVOST, supra note 9; The Effect of
Power Communications (2004), available at
http://www.geocities.com/-n4bz/lawnulaw9.htm (last visited July 18,
2005); see infra text accompanying notes 106-13. But see also KING
& THORNHilL, supra note 8, at 70-71; LUHMANN, LAW AS A SOCIAL
SYSTEM, supra note 8, at 162-63; id. at 265 (replacement of "the
test of power" with self-regulating proceedings that unfold
internally); id. at 473 (law's stabilization of expectations can
create legitimation problems); LUHMANN, OBSERVATIONS ON MODERNITY,
supra note 9, at 90.
17. E.g., David Ignatius, Globalization Lessons, WASH. POST,
Oct. 25, 2003, at A25 (powerful and accelerating characterization);
SUNDHYA PAHUJA, Globalization and International Economic Law, in
JURISPRUDENCE FOR AN INTERCONNECTED GLOBE, supra note 6, at 71, 72,
75 (complex and elusive characterization).
642 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 17
people. 18 This amounts to the creation of global value and
values in various subsystems: the importance of the capitalist
economy and its institutions (GATI and GATS, TRIPS, and TRIMs),19
the scientific rationality driving a technological revolution, and
the "relativizing" of particular or local cultures. After two World
Wars, globalization became a strategic reality
before the term became fashionable.2° Consequently, the
strategic reality
may be that globalization's current economic guise reflects a
novel strategy
which usually operates without the active involvement of the
military
subsystem.
If "all politics is local," then all economics is international.
A complex
(not necessarily efficient) economic subsystem promotes both a
global inclusion, of modernizers who expect expanded access to
scarce resources in the future, and the exclusion of pre-modem
people and peoples. This sometimes-volatile combination, creates a
growing economic inequality, and personal and social fragmentation
results from movement away from inherited communities fixed in
geography and history. Such outcomes, flow from international rules
and organizations like the WTOs, as unintended consequences of
change and as outcomes which cannot be created through bilateral
bargains between nations.21 As a result, competitions arise, in
which religions (like scientific or health care subsystems) try to
create implications extending far beyond the strictly religious or
localized realms, while offering support to their adherents at the
same time.
18. STIGUTZ, supra note 3, at 9.
19. I.e., the General Agreement on Tariffs and Trade, the
General Agreement on Trade in Services, the Trade Related Aspects
of Intellectual Property Rights, and Trade Related Investment
Measures respectively.
20. BEYER, supra note 5, at 8; JEAN-MARIE GUEHENNO, The Impact
of Globalization on
Strategy, in TuRBULENT PEACE, supra note 12, at 83. See BEYER,
at 22 (discussing John Meyer's arguments); GUEHENNO, The Impact of
Globalization on Strategy, in TuRBULENT PEACE, supra note 12, at
90-91 (America's globalization strategy may be nothing more than a
series of successful tactics -a "style" rather than a
"program").
21. JACKSON, supra note 2, at 4; KING & THORNHILL, supra
note 8, at 83-84; LUHMANN, LAW
AS A SOCIAL SYSTEM, supra note 8, at 271; FRANCESCA BIGIONI,
CREATING RIGHTS IN THE AGE OF GLOBAL GoVERNANCE: MENTAL MAPS AND
STRATEGIC INTERESTS IN EUROPE (2004); NOBLES & SCHIFF,
Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 16. See
LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 489 (the
advantages of inclusion are upward mobility and a better career);
LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9, at 99 ("esteem"as
"an indicator" of ... "inclusion"); NOBLES & SCHIFF,
Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 50
(inclusion/exclusion is a meta-distinction common to all
subsystems). But see also KING & THORNHilL, supra note 8, at
82-83 (modem social systems are inclusive and integrative, spawning
communications relevant for increasingly diffuse and interconnected
operations, leading to democratization -in the sense of dissolved
hierarchies -and to development).
2005] HUMANS AND RIGHTS: COLONIAliSM, COMMERCE, AND GWBAU7ATION
643
A globalized religion, Islam for example, is then seen as
struggling for dominance against beliefs in a secular economic
globalization or a "universal" human rights. It may be that, just
as rape signals weakness in sex, terrorism signals the desperation
of some fundamentalists over a loss of control within global Islam,
to moderates and progressives. Many secular globalizers argue that
some or many cultural emphases of traditional communities -for
instance, tolerance for corruption or for female genital mutilation
-must be changed through laws to foster new choices and
relationships.Traditional authoritarians, Muslim activists, and
other would-be nationalists correctly see this as Westernization or
Americanization. Luhmann (a German) ascribes the failure of many
third world economic projects to a modernization (or an
individuation) without Westernization. Those Westerners who do not
follow an anthropological approach typically respect foreign
traditions only up to the point where instrumental relations (those
based on the pursuit of gain, rather than on kinship or friendship)
begin to atrophy or, as in several human rights prohibitions,
affective relations become oppressive. Globalization also favors
those countries, in an "international marketplace of ideas and
cliches" governed by national marketing abilities, able to
manipulate perceptions without necessarily controlling them.Z2
Globalization can properly be equated with Americanization, a
dominance-for-profit sponsored by the "reluctant but efficient
sheriff'23 and featuring imitations of American legal forms - if
not American legal cultures. Its military force creates an American
umbrella under which more benign forms of power can flourish, for
example, the European Union. This force, as well as economic power
and cultural appeal, have put the United States at the top of the
global order. Cultural appeal is a "soft" power: the force of ideas
and ideals, which operates subtly by influencing others to support
the United States of their own free will. It is this cultural
22. KING & THORNHIIJ.., supra note 8, at 8, 99. LoWENFEID,
supra note 12, at l 08; Cotterrell, Law in Culture, supra note 5,
at 9, ll-12; DAUVERGNE, New Directions for Jurisprudence, in
JURISPRUDENCE RJR AN INTERCONNECfED GLOBE, supra note 6, at 7;
GUEHENNO, The Impact of Globalization on Strategy, in TuRBUIBIT
PEACE, supra note 12, at 86, 90. See BEYER, supra note
5, at 5 (Luhmann's communications can involve "sacred symbols
... which always point radically
beyond themselves-transcendent as well as imminent."). On the
parenthetical speculation in the text, see, e.g., Daniel Lazare,
The Gods Must Be Crazy, NATION, Nov. 15,2004, at 33 (reviewing,
among other books, GII..l.ES KEPEL, JIHAD (2002); OUVIER ROY,
GLOBALIZED ISLAM (2004)).
23. GUEHENNO, The Impact of Globalization on Strategy, in
TuRBUlENT PEACE, supra note
12, at 92 (describing an American self-image shared in some
other countries). But see also AMY CHUA, WORlD ON FIRE 6-9 (2003)
(globally, Americans are the market-dominant minority that provokes
so much resentment within other countries, a resentment which
democratization focuses and exacerbates because democracy empowers
the impoverished majority).
644 FWRIDA JOURNAL OF INTERNATIONAL LAW [Vol. 17
appeal which, some critics argue, President Bush is dissipating
carelessly. Progress toward free trade and economic integration,
financed in no small measure by its trade deficits, is a great,
mostly unheralded triumph for U.S. foreign policy. But it does not
always live up to its aspirations or its advance billing. For
example, when the United States takes the lead in bilateral and
regional trade agreements, the United States undercuts the WTO.
Also, many countries resent the U.S. President's statutory power to
retaliate against "unreasonable or unfair" injuries to U.S.
commerce, by another country or foreign trader. The early 1990s
Uruguay Round of GATT negotiations tried to eliminate this power,
but Congress kept it as a part of U.S. "sovereignty."24
Under a market fundamentalism akin to a Christian one, full of
glosses on the texts of St. Milton Friedman, the U.S. projects raw
laissez faire capitalist values and institutions onto the world
stage.25 These projections often have the effect of differentiating
a global economic subsystem from its pre-modem social bonds within
American's Third World - for instance, the non-market, and possibly
corrupt "way we do things here," including at Enron or the Chicago
City Council. Rival organizational cultures, for example those of
communist party-states, welfare states, or social democracies, are
either dying or sapped of the resources needed to implement their
rival goals effectively. Most of the American cultural influences
discussed earlier are rather diffuse. These cultural influences are
sponsored by multinational corporations and the media, or through
the "Washington consensus" governing World Bank and International
Monetary Fund operations.26 There is no master plan for, or even a
full awareness of, the current cultural changes or of the
Americans' collective
24. JACKSON, supra note 2, at 135, 391; Walter Mead, America's
Sticky Power, FOREIGN POL'Y, Mar./Apr. 2004, at 46, 48; Trade's
bounty; Economics focus (Economics focus: American's trade
divided), ECONOMIST, Dec. 4, 2004, at 80 (U.S. gains from trade
total an estimated 8.6% of GDP). But see also Daniel Lazare,
Diversity and Its Discontents, NATION, June 14, 2004, at 23
(reviewing and quoting SAMUEL HUNTINGfON, WHO ARE WE? THE
CHALLENGES TO AMERICA'S NATIONAL IDENTITY (2004) ("identity
requires differentiation"-as Luhmann might say, we add
-and the 1989-91 collapse of the Soviet Union left the United
States adrift); id. (terrorism filled this vacuum and encouraged us
to redefine ourselves in a democratic "crusade"); id. (already
short tempered over a declining economy, the war on terrorism makes
Americans more belligerent).
25. Lazare, supra note 24, at 14. See DAUVERGNE, New Directions
for Jurisprudence, in
JURISPRUDENCE R>R AN INTERCONNECTED GLOBE, supra note 6, at
5-6 (citing Dimitry Kingsford Smith that, transnational securities
regulation does little more than promote American norms, in
technocratic and anti-democratic ways in what is a failure of legal
generalizability); WILLIAMS, Culture & Civilization, in
ENCYCLOPEDIA OF PHILOSOPHY, supra note 5, at 274.
26. See infra text accompanying notes 38-39.
2005) HUMANS AND RIGHTS: COWNIAUSM, COMMERCE, AND GWBALJZATION
645
control over them. As Luhmann's analyses might lead us to
conclude, this is one facet of "global governance without global
government."27
This seeming paradox serves as a theme for analyses of our three
partly self-governing and relatively stable tracks, or legal
sub-subsystems. Some commentators call governance without
government an international anarchy: the absence of, or significant
gaps in, international laws and institutions; the lack of a central
authority to enforce international agreements effectively, outside
of the WTO; and/or the absence of an effective global monopoly over
the legitimate means of coercion-a role the U.N. Security Council
would like to play. But the obvious fact that most parts of the
negotiated orders we analyze here, work most of the time suggests
that we need a more nuanced view of governance.28
This view of governance might be analogous to the role of
global
"cosmopolitans" who lack a corresponding global state. This view
is
comparable to centuries of the stateless cultures of Judaic law
and parts of Islamic law, in which cultures are based on duties
rather than rights; or perhaps this view is analogous to the
"ecological" lifestyles some indigenous groups manage without
formal rulers. The creators of newer international orders, in
particular nation-states and nongovernmental organizations (NGOs),
lose control over such organizations when they come to have a life
of their own.
Luhmann's functional differentiation requires that coercion be
removed from legal, economic, and social subsystems and lodged in
the political ones. These remain underdeveloped at the
international level, because there is little of the bureaucracy
(outside of the WTO and the United Nations, along with its
agencies), autonomy, and legitimacy that make up the sources of
political power. While international law benefits from not having
to secure the peace and enforcement necessary for its operations,
these necessities are sometimes not forthcoming from an
international politics. In the U.S., economic subsystems are
subordinated to political power through the taxation,
redistribution, and regulation that are almost
27. STIGLITZ, supra note 3, at 21. See BEYER, supra note 5, at
15 (discussing the globalization theory oflmmanuel Wallerstein,
which in tum relies on the French Annates School of Braude!and
Marxian dependency theory); Luhmann, The World Society, supra note
10, at 135; STIGLITZ, supra note 3, at 11; PAHUJA, Globalization
and International Economic Law, in JURISPRUDENCE FOR AN
INTERCONNECfED GWBE, supra note 6, at 75 (with this "withering away
of the state," the central question is what role does law play in
global governance?).
28. Duncan Snidal, Political Economy and International
Institutions, 16 INT'L REV. L. & ECON. 121, 126 (1996). See
infra text accompanying note 102. But see also James Bacchus, A Few
Thoughts on Legitimacy, Democracy and the WTO, 7 J.INT'LEcoN.L.
667, 668, 670 (2004) (WTO a label that most nations use to work
together because of their growing interdependence, and this makes
sovereign states stronger, not weaker).
646 FWRIDA JOURNAL OF INTERNATIONAL LAW [Vol. 17
entirely absent at the global level. This gives wealth and power
an almost free rein in the global economy.29
Democratization at the national, but not the international,
level has been grafted onto globalization as a decidedly secondary
culture, perhaps as a public relation exercise, but this graft is
capable of promoting new freedoms and opportunities in tandem with
economic globalization -at least in theory.30 Nonetheless, a
particular economic culture dominates the processes involving the
rapid marketization, deregulation, and privatization of almost
everything. This "shock therapy" attempts to minimize political and
social backlash (the time to muster cultural resources, so as to
fight back), and it creates much misery in Russia, Eastern Europe,
and Africa. Shock therapy also spawns what Russians call an
economic mafia, which is an elite able to convert political
dominance into economic power by (as in Thatcher's Great Britain)
buying privatized state assets for a pittance. A
29. KING & THORNHILL, supra note 8, at 103, 107; LUHMANN,
LAW AS A SOCIAL SYSTEM, supra note 8, at 481-82 n.41 (citing
GERHART NIEMEYER, LAW WITHOUT FORCE); NOBLES & SClllFF,
Introduction,in LAW AS A SOCIAL SYSTEM, supra note 8, at 29, 39.
See LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 481 ('There
cannot be any doubt that the global society has a legal order, even
if it does not have central legislation and decision-making."); id.
at 481 n.41 (international processes are sometimes compared with
tribal societies, but this does not do justice to modern legal
relations); PETER LINDSETH, AGENTS WITHOUT PRINCIPALS?: DELEGATION
IN AN AGE OF DIFFUSE AND FRAGMENTED GoVERNANCE (2004)
(self-regulation, privatization, and supranationalism "should be
understood historically as aspects of the same phenomenon of
diffusion and fragmentation ... that began with the emergence of
the modem administrative state" early in the twentieth century).
TuRNBUlL, supra note 9; Yanira Reyes (personal communication). But
see Roberts, supra note 9.
30. Compare
ALFREDAMAN,T'HEDEMOCRACYDEF1CIT:TAMINGGWBALIZATIONT'HROUGH
LAW REFORM (2004) (globalization has a chilling effect on
democracy, since unregulated markets now perform functions that
used to be the province of domestic governments); JACKSON, supra
note
2, at 10 (national citizen participation makes international
bargaining more difficult, since the latter requires secrecy and
discretion); Anashri Pillay (personal communication) (globalization
and the receipt of foreign aid) require accepting a democracy
consistent with capitalism, thus impoverishing democratic
alternatives, with KING & THORNHill, supra note 8, at 106 (for
Luhmann, democracy creates more flexibility in political
subsystems). See LUHMANN, LAw AS A SociAL SYSTEM, supra note 8, at
404 (democracy is likely "a consequence of the positivization of
law and the ensuing possibilities of changing the law at any
time."); Bacchus, supra note 28, at 669 (international governance
is democratic to the extent that the vast majority of states is
democratic); id. at 671 (other WTO members have their own means of
reflecting the democratic traditions and constitutional integrity
perceived in the United States - the voice of Congress, expressed
in executive trade policies); Mead, supra note 24, at 52
("Countries with open economies develop powerful trade-oriented
businesses); id.(the leaders of these businesses promote economic
policies that respect property rights, democracy, and the rule of
law ... and avoid the isolation that characterized Iraq and
Libya....").
2005] HUMANS AND RIGHTS: COLONIAUSM. COMMERCE. AND GLOBAUZATION
647
heavy emphasis on economics has the effect, and may have the
purpose, of forestalling political opposition to
globalization.31
This is the best, most efficient, outcome for the neoclassical
economists
who were largely responsible for creating this Americanized
economic culture (sub-subsystem) in the first place. How many
neoclassical economists does it take to change a light bulb? The
answer is none. If the
bulb needs changing, the market will have done it already.
The dominance of this marketplace model, through money as
the
medium of Luhmann's communications, and with economic growth
satisfying the insatiability of consumer (as opposed to citizen)
wants as the assumed justification, was probably necessary to the
overthrow of the "natural" pre-modem order, but economic
modernization need not remain here. As Luhmann puts it, while
putative outcomes under this market model may be as "impossible as
a life without sin, assuming the existence of God," this model "has
to be followed blindly."32 Markets favor various ethnic groups
differently. For instance, a market-based efficiency ignores (as
irrelevant or inescapable) economic stagnation and a growing
inequality between ethnic groups, and the increased tendency to
financial
31. SnGUTZ, supra note 3, at ix-xi, 31; PAHUJA, Globalization
and International Economic Law, in JURISPRUDENCE roR AN
INTERCONNECTED GLOBE, supra note 6, at 84; YONAKI STOILOV, Are
Human Rights Universal?, in HUMAN RIGHTS INPHll..OSOPHY AND
PRACTICE 87 (Burton Leiser
& Tom Campbell eds., 2001). See Fred Hiatt, Democracy in
Trouble, WASH. POST, Sept. 20, 2004, at A21 (ten years ago, the
progress of democracy seemed inevitably to expand with an economic
prosperity -assumptions that now seem blithe in light of reversals
in Russia, inaction in China, and a preoccupation with
terrorism).
32. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 418;
LUHMANN, 0BSERVATIONS
ON MODERNITY, supra note 9, at 96. See LoWENFEI.D, supra note
12, at 474 (largely American inspired bilateral investment treaties
enact a U.S. neoclassical economics-prohibiting or partially
prohibiting local content requirements; the conditioning of imports
on production, exports or foreign exchange; the requiring of a
certain export volume; limits on domestic sales; and requirements
of technology transfer or domestic research and development
efforts); id. (but other governmental interventions like subsidies,
tax deferrals or land grants -i.e., benefits to U.S. investors-are
permitted); LUHMANN, LAW AS ASOCIALSYSTEM, supra note 8, at 390
(law applies its own jurisprudence of interests to its own
interests, homogenizing economic interests by stripping them of
content); id. at 391, 395 (transactions, balanced in terms of
money, become self reproducing through a broad range of
opportunities for repeat use through property and contracts
-negotiating the conditions of transactions -laws); id. at 401
(the limits of "despotic" state intervention); Jorge Esquirol
(personal communication) (free market orthodoxy as technocratic
interference with democratic participation). Joseph Stiglitz,
Letter to the Editor, FOREIGN PoL'Y, Mar./Apr. 2004, at 4
(neoclassical economics models unrealistically "assume perfect
markets, perfect information, and perfect competition"); id. (under
these assumptions "if left alone, the invisible hand will solve
problems."). But see id. (neoclassical theories are "formerly
beloved by the 'mainstream,' but now increasingly rejected because
their predictions are so out of line with reality."). ld.
648 FWRIDA JOURNAL OF INTERNATIONAL LAW [Vol. 17
crises, dislocation, unemployment, and pollution. These are
undesirable consequences that the no-longer-influential John
Maynard Keynes would have stressed.33
As Xiaorong Li states, "newly introduced market forces, in the
absence of rights protection and the rule of law [qualities the
human rights movement seeks to advance], have further exploited and
disadvantaged
these [vulnerable social] groups, ... created anxiety even among
more privileged sectors," and encouraged persecution of those who
dare challenge the new system.34 Robert Skidelsky adds that, in
newly marketized economies, the "old elites live in 'bell jars' of
heavily protected property . . . ; outside flock millions of rural
migrants in shanty towns, virtually invisible to the law."35 The
latter became flexible (easily fired) and cheap employees for "3-D
jobs" -dirty, difficult, and dangerous. Multinational corporations
must meet only lax WTO "national treatment" norms, rather than
promote social and economic rights -especially the right to
organize a union.36
Such a total deregulation, the laissez faire satirized by
Charles Dickens and praised in Rudyard Kipling's colonialism,
exists nowhere today, except through the coercive market
fundamentalism of key globalizers. In mainstream economics,
international or national market failure is recognized as the only
justification for regulation, and the many new, fragmented, and
thin markets in poorer countries frequently fail.37
Although most economists will not admit it, market failures and
thus
33. CHUA, supra note 23, at 6; STIGUTZ, supra note 3; GURR,
Minorities and Nationalists: Managing of Ethnopolitical Conflict in
the New Century, in TuRBUlENT PEACE, supra note 12, at
166; Pahuja, supra note 3, at 390. See CHUA, supra note 23, at
6-9; Paul Brietzke, New Wrinkles
in Law and Economics, 32 VAL U. L. REv. (1997).
34. LI, "Asian Values" and the Universality of Human Rights,in
THE PHILoSOPHY OFHUMAN RIGIITS, supra note 9, at 401. See
DAUVERGNE, New Directions for Jurisprudence, in JURISPRUDENCE FOR
AN INTERCONNECTED GLOBE, supra note 6, at 6 (globalization produces
a commodification oflabor, by treating it as a subject for the
company to govern); BEYER, supra note
5, at 16-17 (notwithstanding analyses like Luhmann's, Immanuel
Wallerstein analyses a dualistic world economy, of concentrated
capital, high wages, and complex activities versus cheap labor and
a simple technology).
35. Skidelsky, supra note 7.
36. Beth Lyon (personal communication). See infra text
accompanying note 58.
37. In many under developed countries, transport (by roads,
ships) and communications (especially through computers) are so
poor that markets for goods and services are badly fragmented. In
Indonesia for example, most of the three thousand inhabited islands
are further fragmented by the absence of cross-island transport.
Such fragmentation, plus the low income levels of most inhabitants
mean that markets are "thin": incapable of supporting more than one
or a very few producers/distributors at a minimally efficient scale
of production/distribution. See Brietzke, supra note 6.
2005) HUMANS AND RIGHTS: COWNIAUSM. COMMERCE. AND GWBAUZATION
649
regulations are literally matters of definition of what we want
markets to do that they are not doing. Certainly, the sad state of
affairs described in the previous paragraph, and the dignity
mandated by human rights law and culture, would justify appropriate
regulations or even a grafting of moral goals from human rights or
nationalism. Moreover, neoclassical economics is only one of many
cultural sub-subsystems in play globally. A mixture of global
policies can temper both market and state failures that
neoclassical economists emphasize -for example an imploding Haiti
or Somalia, or Joseph Conrad's heart of darkness in Mobuto's Zaire
and his successors' Congo. Better designed incentives and
structures can reduce uncertainty, corruption, fraud, and other
predations, while enhancing the predictability, transparency, and
accountability of wealth and power.38
We should pause to note that a country's participation in this
economic globalization is far from voluntary. It is almost
impossible these days to engage in trade without joining the World
Trade Organization. This requirement remains, no matter how unequal
the "WTO bargain" is for
poor countries, and how many hoops a new member must jump
through, by amending its laws and policies to fit the molds
Americans and Western societies prefer. In order to stay in power,
the regime in a poor country needs public-sector loans which
eventually create a mountain of debt, to finance projects through
theWorld Bank (WB) and to ameliorate monetary crises through the
International Monetary Fund (IMF). The conditions that the World
Bank and IMF set on granting these loans require, once again, the
adoption of Western style laws and policies, among other things.
Without such laws and policies in place, Western banks and foreign
investors will not provide desperately-needed capital, without
pro-
38. JACKSON, supra note 2, at 6 (citing Douglas North); KING
& THORNHILL, supra note 8, at 81; Lolita Buckner Inmiss
(personal communication); Becky Jacobs (personal communication).
See JACKSON, supra note 2, at 450-51 (the economists' theory of
"market failure" includes monopoly, asymmetry of information,
distortions created by government, and the inability to obtain
public goods-including peace, human rights, and self-determination
and a measure of distributive justice), KING & THORNHILL, supra
note 8, at 107-08 (in his late works; Luhmann emphasizes a
"parasitic" power developing in other subsystems, which both draws
upon and counteracts power in political subsystems); William
Greider, Defunct Economists, NATION, Dec. 20, 2004, at 89
(economics guru Paul Samuelson discovers that free trade can turn
into a loser for the wealthy country trading with a poor but
ambitious country); id. (China and Japan must keep lending the U.S.
money-finance our trade deficit-so that we can keep buying their
stuff). See LINDSETH, supra note 29; (in France and Britain, the
demands of administrative efficiency prompted a
"dejudicialization," until the desire for justice prompted an
American-style "rejudicialization"); id. (the United States never
created a "self-regulating" market economy by removing it from
political control, and a "rejudicialization" stemmed from the
belief that administrative governance and the market economy remain
"always embedded" in the values of justice and legitimacy); supra
text accompanying notes 23-24.
650 FWRJDA JOURNAL OF INTERNATIONAL lAW [Vol. 17
employer labor laws and enforcement for example.There are now
very few breaches of manifestly unequal, Western style private
investment agreements by "host" (typically underdeveloped)
countries, compared to those breaches occurring in the 1960s and
1970s. The adoption of these Western-style laws and politics does
not reflect a growing legal consensus, but a shift in the economic
balance of power in favor of capital exporters.39
The massive deregulation and privatization required by the WB
and IMF negates state sovereignty, as well as some nationalist
demands. New laws and policies are typically approved by finance
ministers or central bank governors in an undemocratic fashion and,
at best, are rubber stamped by parliaments. These requirements
suppress the possibility that Southern economies will develop
differently from those economies in the North. Recently enhanced
IMF and WB "surveillance" of its debtors, which has the effect of
expanding the international agencies' jurisdictions, reflects an
economists' increased emphasis on these interactions of
macroeconomic policies with unwelcome interferences made by the
agencies in the debtors' political priorities and social policies.
Unrealistically short time horizons are imposed on unrealistic
reforms. In particular, riots are provoked by forcing these debtor
nations to end food and fuel subsidies to citizens quickly.
Ultimately, the legitimacy of the IMF and WB stems from the force
of their analyses, which are increasingly
39. LoWENFEID, supra note 12, at 492-93; Where Does the Buck
Stop?, EcONOMIST, Nov.
13, 2004, at 13-14. See LUHMANN, LAW AS ASOCIALSYSTEM, supra
note 8, at 266 (evolution is not necessarily progress; planned
legal improvements "may contribute to ... evolution but cannot have
a decisive impact ... on outcomes"); id. (many old problems
resurface, and participants cannot "calculate in predictable
ways"); Grinding Them Down, EcONOMIST, Jan. 15, 2004, at 35
("Brutal" Argentine tactics during its monetary crisis may be
responses to poor IMF policies); Show Us The Money, ECONOMIST, Feb.
12, 2005, at 11 (the rich-nation, G8 and Davos, pledge of "making
poverty history" concealed "a tangle of disagreements over how much
more aid and debt relief to provide, how to pay for it and how to
deliver it."). But see also Stiglitz, supra note 32 ("Even the
... IMF is recognizing that open capital markets may not produce
economic growth and can lead to instability in developing
economies. That is a major change from just a few years ago...."
Arguably, this insight has not yet occurred to many low-leveliMF
officials "in the trenches."). A good summary offered in Editorial:
A Boss for the World Bank. WASH. PosT, Jan. 23, 2005, B6:
the bank is fragile because its financial model is creaking. Its
commercial loans are often unattractive to successful developing
countries that have access to the [World] capital markets, because
they come attached to well-meaning but burdensome social,
environmental and anti-corruption conditions. The bank's subsidized
credits, which are offered only to its poorest borrowers, are under
attack for contributing to these countries debt burdens. As a
result, the bank may be gradually pushed into becoming an
institution that awards grants. That would deprive it of the
earnings from its loans, forcing it to shrink substantially.
2005) HUMANS AND RIGHTS: COWNIAUSM, COMMERCE, AND GWBAUZATION
651
found wanting by a growing number of critics. An often-cited
example is the favoritism still displayed toward a Russia, which
repeatedly fails to meet increasingly lax IMF and WB targets.40
Also, consider the recent prescription from the IMF's chief
economist, Raghuram Rajan:
America's unsustainable dependence on foreign savings could be
corrected ... [through] three sensible steps. Europe and Japan
should boost growth through a mixture of structural reforms, lower
interest rates and budget deficits: This would suck in extra U.S.
imports, boosting American incomes and so cutting the country's
dependence on loans. China and Southeast Asia should allow their
currencies to rise against the dollar, so boosting U.S.
competitiveness. The United States should ... raise its savings
rate by shrinking its budget deficit.41
The reader can judge whether this combination of global altruism
and political will is conceivable, much less whether the Bush
Administration
40. LoWENFEID, supra note 12, at 544-46, 564, 596; DAUVERGNE,
New Directions for Jurisprudence, in JURISPRUDENCE roR AN
INTERCONNECfED GLOBE, supra note 6, at 5-6 (discussing Pahuja's
ideas). See STIGUTZ, supra note 3, at 7 (the net effect of the WTO
after 1995 was that the export prices received by the poorest
countries decreased relative to import prices); DAUVERGNE, New
Directions for Jurisprudence, in JURISPRUDENCE R)R AN
INTERCONNECfED GLOBE, supra note 6, at 5 (the conditions set on
poor countries by the World Bank and IMF fail the test of a legal
"generalizability"); id. ("trade discourse rests on a flawed
foundational myth of regulatory normalcy that" recasts and
re-creates colonialism); Ignatius, supra note 17 ("the countries
that are faring worst, not surprisingly, are those that resist the
forces of globalization"); id. (e.g., there is much politicians'
talk but little action in France and Germany about "reform of their
rigid labor markets"-a reform, we might add, that spawned huge
public demonstrations in March 2006 France); Luhmann, The World
Society, supra note 10, at 135 (the capacity for reproduction - of
capital, law or deviations from processes for example - occurs
through "variation, selection and restabilization" under the
influence of various "accelerators"); Pahuja, supra note 3, at
79-81 (globalization crises reflect a colonialism in a postcolonial
era, with problems of sovereign equality and democracy). But see
also LoWENFELD, supra note 12, at 615-17 (the IMF/WB had little
choice over easy terms for Russia, huge, corrupt country with no
familiarity with the mechanics of capitalism and posing the risk of
a cold war revival, "famine,""dictatorship," and/or a "civil war
with" nukes); STIGUTZ, supra note 3, at 34-35 (fortunately, the
United States had the power to ignore the common but
often-disastrous IMF advice-of curing unemployment by reducing
wages-to increase demand to match supply, as the neoclassical
economics gospel requires); Ignatius, supra note 17 ("Global
financial" war-let us "provide brutal but life-giving therapy to
sick economies" and left ''Thailand and South Korea ... leaner and
stronger from the
1997 ... crisis.").
41. Editorial: The Holiday Spirit, WASH. POST, Dec. 24, 2004, at
Al6 (discussing Rajan's
Financial Times articles).
652 FWRJDA JOURNAL OF INTERNATIONAL LAW [Vo1.17
will tackle its budget deficit seriously. John Jackson wisely
calls for a "re
balancing" of globalizing organizations and their rules.42
So far, we have described some of the ways globalization weakens
state structures, which allows for a greater number and variety of
indirect relationships. These may be based on transnational
business connections, a common educational background, the freer
flow of information that tends to destabilize dictatorships - for
example, Indonesia's Suharto is said to have been toppled through
an "e-mail revolution," and the flourishing of such nongovernmental
organizations (NGOs) as Islamic foundations, French and German
foundations promoting democracy, and NGOs fostering human rights in
China. This global civil society has great creative, participatory,
and emancipatory potential, presently generating, at least, the
politics of talk, and topics for further talk.
But some cultures get squeezed out during the economic
globalization
process, specifically, the human rights of indigenous peoples
whose economic, ecological, and even democratic relations differ
markedly from those under capitalism. Capitalism's demands
frequently result in the indigenes' land, hunting and fishing
grounds being taken away from them; losses which are often stressed
by nationalists seeking self-determination. In theory, a global
society has no such "outsiders" to represent evil or chaos to the
"insiders."43 Yet anti-globalizers and their NGOs, who use a
42. JACKSON, supra note 2, at 410.
43. BEYER, supra note 5, at 72; LUHMANN, LAW AS A SociAL SYSTEM,
supra note 8, at 365; OMARDAHBOUR, The Ethics of
Self-Determination: Democracy, National and Regional, in HUMAN
RIGHTS IN PHILOSOPHY AND PRACTICE, supra note 31, at 503, 510-11;
GUEHENNO, The Impact of Globalization on Strategy, in TuRBUlENT
PEACE, supra note 12, at 89-90; GURR, Minorities and Nationalists:
Managing ofEthnopolitical Conflict in the New Century,in TuRBUlENT
PEACE, supra note 12, at 167; DALAI LAMA, Human Rights and
Universal Responsibility, in THE PHILOSOPHY OF HUMAN RIGHTS, supra
note 9, at 291-93; PAHUJA, Globalization and International Economic
Law, in JURISPRUDENCEroR AN INTERCONNECfED GLOBE, supra note 6, at
75. See KING & THORNHILL, supra note 8, at 90 (Luhmann rejects
principles of political pluralism, especially as these are
expressed and safeguarded by the proliferation of single-issue
movements); LUHMANN, LAW AS A SociAL SYSTEM, supra note 8, at 304
(the state is no longer run on eighteenth century civil society and
peripheral processes); id. (compared to the eighteenth century,
arrangements are freer in political groupings, consensus formation,
everyday mediation of interests, and other things not immediately
turned into collectively-binding decisions). But see also LUHMANN,
OBSERVATIONS ONMODERNITY,supra note 9, at 92 (today, we "dream of
an ethical-political society," which ended in the seventeenth to
eighteenth centuries as an adaptation to social change and as a
means of making the autonomy of subsystems irreversible). LAMA,
Human Rights and Universal Responsibility, in THE PHILOSOPHY
OFHUMAN RIGHTS, supra note 9, at 291-93 (the need to develop a
sense of universal responsibility, and of love and compassion for
others, in a smaller and more independent world where all have the
same needs and concerns).
2005] HUMANS AND RIGHTS: COLONIAUSM, COMMERCE. AND GLOBAU7ATION
653
sometimes violent street theater to get noticed, increasingly
fulfill this
"outsiders" role. Their arguments have some or much
plausibility:
(1) globalization agencies must open meetings to the public and
the media; (2) the IMF and World Bank must cancel the debts owed to
them by poor countries; (3) globalization agencies must end
policies that hinder people's access to food, clean water, shelter,
healthcare, education, and the right to organize (demands which are
also projected as international human rights); ... (4) the Bank
must end support for socially and environmentally destructive
projects involving mining, oil and gas, and large dams;44 and (5)
protections of intellectual property under the WTO should not be
used to make education (through copyrights) or life-saving drugs
(through patents) too expensive for poor people.
Needless to say, some of these views are shared by many who do
not choose to demonstrate.The anti-globalizers have been quiet
oflate, and the current Doha Round of WTO negotiations is being
held in Qatar to minimize anti-globalizer "participation,"-by
denying them visas.
In sum, a country can expect, at most, rapid economic growth
from the
status quo of this Americanized globalization. Absent reforms
advanced by anti-globalizers and others, there will be none of the
development45 that,
44. Brietzke, supra note 6, at 15 (citing newspaper articles by
Manny Fernandez, Noreena Hertz, and Robert Weissman). See CHUA,
supra note 23, at 12-13 (neglecting the fact that democratization
often creates more ethnic hatred and violence, anti-globalizers
like Noam Chomsky push for more democratization, while others see
more marketization as a panacea); Pahuja, supra note 3, at 83
(under "two solitudes," "human rights, labor standards and
environmental concerns are continually excluded from the scope of
international trade law"); Putting the Brakes On, ECONOMIST, Aug.
4, 2001, at 43 (quoting French President Chirac). "Our democracies
... cannot be mere spectators of globalisation. They must tame it,
accompany it, humanise it, civilise it." ld. at 44. While these
attitudes reflect a French dislike for "free markets" and other
aspects of the "American hegemonialism" that are seen to negate the
prominence of French language and culture. ld. at 43. It also
indicates a basis for making common cause with the
anti-globalizers.
45. A development which can be integrated with an economic
globalization involves an equalization (rather than equality),
perhaps called "justice." It arguably includes minimal labor
standards and environmental protections, universal primary
education, access to modest levels of health care, ameliorating
corruption and securing other incidents of national and
international good governance, the implementation of (other)
socioeconomic, cultural, and political rights and, more
controversially perhaps, the promotion of peace -especially through
a demilitarization. This means inclusion, through access to the
means of a life with dignity, perhaps with individual (and
national) "winners" transferring some of their gains to individual
and national "losers." A major problem is that the wealth, power,
and elitism of some often depends on or is seen to depend on the
exclusion of others, leading the few to oppose improvements in the
plight of the poor and
654 FWRIDA JOURNAL OF INTERNATIONAL LAW [Vol. I?
perhaps more democratically, can also attend to the needs of the
world's poor and powerless.
Such development could be credibly pursued simply by taking
statements by senior globalizers seriously and then implementing
them.
Chief among these senior globalizers is the recent World Bank
President James Wolfensohn. His many, excellent reform-based and
development oriented statements, were almost never given meaningful
effect "in the trenches" ofWB (or IMF or WTO) policy
implementations. Furthermore, Wolfensohn's reformed-based and
development-oriented statements provoked the United States into
refusing to appoint him for a third term in
2005. In any event, the lack of WB, IMF, and WTO transparency or
accountability tum senior globalizers' views into a comforting
ideology perhaps an indication of how vulnerable they feel.46
This status quo of an Americanized global culture (of economic
growth
regardless of marked increases in inequality) provokes much
helplessness, suspicion, resentment, and the organization of
countervailing forces, especially given the Bush Administration's
heavy-handedness and tendency to militarize everything in the name
of anti-terrorism. While President Bush often gives lip service to
globalization and development, funding has not matched his promises
and he has impeded trade by levying tariffs on steel and textiles
and increasing subsidies to American
powerless. JACKSON, supra note 2, at 100, 422; KING &
THORNHilL, supra note 8, at 82-83; Brietzke, supra note 6; Greider,
supra note 38; NOBLES & SCHIFF, Introduction, in LAW AS A
SOCIAL SYSTEM, supra note 8, at 22; Measuring Globalization, supra
note 9, at 68; Recasting the Case for Aid, ECONOMIST, Jan. 22,
2005, at 69 (discussing, e.g., the U.N.'s Millennium Development
Goals). All of this should be done without undue indulgence of what
Luhmann calls the state's "steering mania." KING & THoRNHilL,
supra note 8, at 82; Recasting the Case for Aid, supra, at 70. See
LUHMANN, LAW AS A SociAL SYSTEM, supra note 8, at 132-33
(equality); id. at
480 (there is only one global society, inequalities
notwithstanding); id. at 490 (on inclusion and
exclusion, persons with no address cannot send their child to
school); LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9, at 96
(persons must be allowed to create bonds, unfreedoms, provided this
is done on the basis of freedom and equality); JACKSON, supra note
2, at 93 (the problem of "national welfare" versus "global welfare"
discussed); F.G. ADAMS ET AL., How THE DRAGON CAPTURED THE WORLD
EXPORT MARKETS: OUTSOURCING FOREIGN INvESTMENT LEAD THE WAY (2004)
(China succeeding by an economic growth-based
competitiveness-exchange rate under valuation, low wage rates, and
a surplus labor pool). But see also KING & THORNHilL, supra
note 8, at 168 (a constitutional grandeur undermined the
"dictatorship of the standard of living" through responsibilities
for social allocation and amelioration).
46. Paul Blustein, World Bank Chief to Step Down in '05, WASH.
POST,Jan. 3, 2005, at A4.
See LoWENFEI.D, supra note 12 (U.S.-formatted bilateral
investment treaties could, but do not, impose labor standards, and
their environmental and human rights protections serve only to
limit these protections); id. (the WTO relegates global labor
standards to the ineffective International Labor Organization). But
see also Recasting the Case for Aid, supra note 45 (the U.N.
Millennium Development goals are becoming part of global
institutions policies and rhetoric).
2005] HUMANS AND RIGHTS: COWNIAUSM. COMMERCE, AND GWBAUZATION
655
agriculture and industry.47 Dominance by an Americanized culture
of globalization may thus prove a short-lived phenomenon.48
Macedonians, Romans, the Chinese, Mongols, Spaniards, and the
British can remind Americans that global dominance never lasts.
Although some elites in the United States openly speak of "empire,"
previous drives to dominate have always been undone by pluralistic
and tolerant American ideals. In any event, the perceived
outsourcing of jobs from the United States, and the attribution to
globalization of declining real wages and increased inequalities,
may lead to a new bout of isolationism in the United States.49
ill. HUMAN RIGHTS
While the profitability of economic globalization activities
attracts "establishment" lawyers, an austere purity of human rights
goals appeals to "insurgents." Establishment lawyers love to create
the complex spontaneous orders of globalization. For example, the
"most-favored nation" or national treatment rules in trade arise
from a cooperation based on the mutual self-interest among Western
countries that leads to an intense competition in practice.
Insurgents, on the other hand, are a rather odd assortment of
elites, including almost anyone in a poor country with a legal
qualification -some of whom are establishment lawyers during their
"day'' jobs. They are concerned about issues that the establishment
ignores. They may, for instance, help organize a local chapter of
Amnesty
47. STIGUI'Z, supra note 3, at xi, 11-12. See Ignatius, supra
note 17 (the power of globalization became clear during the Bush
Administration, especially with the economic collapse of Russia and
Japan); id. ("Among the biggest challenges of the early 21st
century is bringing ... modernizing China safely into the global
economy, and this seems to be happening").
48. GUEHENNO, The Impact of Globalization on Strategy, in
TuRBULENT PEACE, supra note
12, at 92 (the United States as a "laboratory"of globalization);
id. (doubtful that U.S. "imperialism" can be sustained in the long
run in the American democracy, as compelling definitions of
national interest become more difficult to devise in a fragmented
polity); Skidelsky, supra note 7 (quoting Hernando de Soto, ''The
builders of globalization, 'still arrogant in their victory over
Communism,' will ... suffer the fate predicted by Marx" if the
history of Western countries cannot be replicated in the Third
World); Grappling with Globalization, ECONOMIST, Oct. 9, 2004, U.S.
Election 2004 insert, at 14 (many Americans blame globalization for
a weak labor market caused by the "outsourcing" of good jobs to
cheap workers overseas).
49. John Spayde, We'll Always Have Paris, UTNE MAG., Nov-Dec.
2004, at 76; Review:
Pride and Shame, ECONOMIST, Oct. 9, 2004, at 80 (quoting Hendrik
Hertzberg). See Samuel Huntington, The Threat of White Nativism,
FOREIGN PoL'Y, Mar.-Apr. 2004, at 41; Robert Wade, Reply to Letter
to the Editor, FOREIGN PoL'Y, Mar.-Apr. 2004, at 5 (a U.S. Treasury
Under Secretary "recently proclaimed free capital mobility to be a
'fundamental right."'); World v. Web, ECONOMIST, Nov. 20,2004, at
66 (in what is seen as "an expression of American unilateralism,"
the United States refuses to allow the United Nations to run the
Internet).
656 FWRIDA JOURNAL OF INTERNATIONAL LAW [Vol. 17
International or Greenpeace, to provide (limited) protective
"cover" from a recognized global NGO. Insurgents may collaborate
across NGOs for an enhanced organizational power, through a
conflationary "human right to sustainable development" and act out
a "progressive" ideology which states that things will quickly get
much worse without urgent interventions by the international
community.50
The costs and benefits of human rights (and such other insurgent
aims
as peace, development, and environmental protection) belong to
everyone,
which is the same thing as saying that (as the economists'
notion of "externalities" illustrates) they belong to no one. In
other words, none pursue them for profit, and insurgent lawyers'
attempts to portray them as collective or "peoples"' rights are met
with establishment attempts to reduce such claims to those of the
"person" (such as a corporation or nation-state) known to an
individualistic international law system. Unlike establishment
lawyers, insurgents lack control over, and sometimes a simple
access to, international law. Lacking the advantages of the legal
positivism that is international economic law, insurgent human
rights lawyers have recourse to awkward "progressive" or
"programmatic" implementations of an "organic law" (for example,
Magna Carta or the Declaration of Independence are predecessors of
human rights covenants and conventions). These processes form what
civilian lawyers might call a lex imperfecta, but a lex
nonetheless. In Luhmann's terms, insurgents create a higher degree
of complexity and inconsistency in international law, by using more
indeterminate legal concepts and by softening traditional
(establishment) doctrinal positions.51
Insurgents are forced primarily to rely on the implementation of
treaties
in particular countries through relatively powerless
international human rights decisions and agencies' reports and
recommendations. 52 Usually, these are then used in efforts to
mobilize international public opinion, in
50. Paul Brietzke, Insurgents in the 'New' International Law, 13
WIS.INT'LL.J.l-6 (1994).
51. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 260;
Brietzke, supra note 50, at
6-11; ANDREW FAGAN, Human Rights, in INTERNET ENCYCLOPEDIA OF
PHILOSOPHY (2004); Luhmann, The World Society, supra note 10, at
136 (the realization of the contingency of decisions and the need
for rules that regulate the production of rules promoted the
positivism of an international economic law).
52. The number of relevant treaties continues to grow, but modem
human rights law stems from a U.N. General Assembly Resolution:
Universal Declaration of Human Rights. G.A. REs.
217A (lll), U.N.GAOR, 3d Sess., pt. 1, at 71, U.N. Doc. A/180
(1948). The treaties implementing this Declaration are the
International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights.
Dec. 16, 1966,993 U.N.T.S. 171; Dec. 16,
1966, 993 U.N.T.S. 3. The former Covenant was signed by
President Carter in 1979 and ratified by the Senate in 1990.
2005] HUMANS AND RIGHTS: COLONIAUSM, COMMERCE, AND GLOBAUZATION
657
hopes of influencing the trade, foreign aid, loans, and
investments that establishment lawyers claim as their province.
Insurgent scholars try to build (inevitably tenuous) links between
human rights laws, which mostly bind nation-states, and
international trade and finance, rules which mostly bind ostensibly
private parties.
For example, multinational corporations (MNCs) exist to serve
the
economic interests of senior managers and (secondarily)
shareholders. MNCs have no established moral obligations, and their
human rights concerns are usually limited to not alienating
consumers and NGOs, who might publicize, lobby, and organize
product boycotts against perceived misbehaviors. The MNC's
establishment lawyers, who do approximately ninety percent of the
"work" in international law, try firmly to segregate a positivist
international economic law from the "fluff' pursued by insurgent
lawyers. The establishment purports to deal with the law as it
"is," within the WTO, IMF, and WB institutions, whose power and
jurisdiction tends to be exaggerated, and to then limit a customary
international law to that of commercial practices.
(5)In Luhmann's terms, the establishment lawyers distinguish
only legal and illegal, while the insurgents would add a second
distinction of just and unjust, which includes a variety of
noncommercial rules of customary international law. Insurgents also
argue that the treaties of international economic law are contracts
of adhesion for poor and powerless countries, unconscionable under
U.S.law or inequitable in civil law. Insurgents argue that the
purpose of economic law treaties is to legitimize and thus enhance
the long-term stability of economic globalization in its present
form. 3
A human rights culture can be understood as incorporating
Weberian ideal types, which are complex constructs for molding the
procedural and substantive means of pursuing justice into
recognizable patterns. Without such communications about the causes
of and cures for human misery, the argument proceeds, the
subsystems of international or national society cannot find out
what human needs and wants really are. Human rights abuses are
near-permanent features; they will remain unhealed in Rwanda, for
example, if a truthful accounting and justice continues to be
postponed or denied. Compare Chile with South Africa. But democracy
and an
53. JACKSON, supra note 2, at 11 (stating the ninety percent
figure, but noting that international economic law cannot be
segregated from a general international law); LUHMANN, LAW AS A
SOCIALSYSTEM, supra note 8, at 212, 216, 260; Richard Falk, Human
Rights, FOREIGN PoL' Y, Mar.-Apr. 2004, at 20; Carlos Vasquez,
Trade Sanctions and Human Rights-Past, Present, and Future,
6J.1NT'LECON. L. 797,797, 804(2003). See JACKSON, supra note 2, at
445 (ascribing the insurgent tactics described in the text to
environmentalists, and noting that neither trade nor environmental
policies can be pushed to the limit).
658 FWRIDA JOURNAL OF INTERNATIONAL LAW[Vol. 17
independent judiciary need time to grow strong enough to pursue
justice, against the military in Argentina or Brazil for
example.54
While the international community readily pays lip service to
vaguely worded human rights, disputes quickly and consistently
erupt over the legitimacy of merely moral rights. Moral rights are
those lacking a legal sanction, "interpretations" of human rights
as attempts to give them useable content. The international
community then attempts to establish the correlative duties to
observe these rights (by individuals, groups such as corporations,
communities, states, and regional and international organizations)
and to then institutionalize, implement, and enforce rights and
duties that have become fairly concrete in the process. Detracting
from its own sovereignty, a state is expected to forbear
interfering with some principled, chiefly political and civil
rights, yet play an important role in implementing other social,
economic, and cultural rights. While many states have conceded
these sovereignty limitations by agreeing to the relevant human
rights covenants and conventions, the increasingly-rare
recalcitrants (countries which are dissidents from some or many of
these rights) risk having the rights in such documents applied
against them anyway, as "customary international law." Conceptual
hierarchies among all of these rights and their sources are
somewhat confusing and provoke additional disputes.55
While the resulting human rights are of high priority and
usually mandatory, a fair amount of pragmatism accompanies such
high mindedness in practice. For instance, those rights are
"resistant to trade offs, but not too resistant."56 Jean-Marie
Guehenno sees in human rights
54. Editorial: Chile's Accounting, WASH. POST, Dec. 24, 2004, at
A16. See LUHMANN,
0BSERVATIONS ON MODERNITY, supra note 9, at 15; NOBlES &
SCHifF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at
49.
55. TOM CAMPBEll., Democratizing Human Rights, in HUMAN RIGHTS
IN PHILoSOPHY AND PRACTICE, supra note 31, at 175, 177-80;
COTTERREIL, The Concept of Legal Culture, in COMPARING LEGAL
CULTURES, supra note 5, at 23-24; LAMA, Human Rights and Universal
Responsibility, in THEPlllLOSOPHYOFHUMANRIGHTS,supra note 9, at
291-93 (discussed in part in supra note43); FAGAN, Human Rights, in
INTERNETENCYCLOPEDIAOFPlllLOSOPHY,supra note
51; James Nickel, Human Rights, STANFORD ENCYCLOPEDIA OF
PHILoSOPHY 2004, available at
http://plato.stanford.edu/entries/rights-human (last visited
July 19, 2005); Pahuja, supra note 3, at
383.
56. Nickel, supra note 55 (quoting James Griffin). See LUHMANN,
LAW AS A SOCIALSYSTEM, supra note 8, at 484 ("Basic rights such as
freedom and equality are still recognized-but with full knowledge
of how much they can be modified by legislation and how little they
reflect real situations."); Editorial: A Test From Burma, WASH.
POST, Dec. 18, 2004, at A26 (the Thai Prime Minister pronounced the
junta's detention of Aung San Suu Kyi