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

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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.

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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).

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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

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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 KING&THORNHIIL,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

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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).

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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!NG&THORNHIIL,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).

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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.

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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).

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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).

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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).

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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.

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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.

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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).

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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

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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).

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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).

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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