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 actsbut "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 "selfobservation" -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.Z 2
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 shorttempered 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.
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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).
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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....").
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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 Americaninspired 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 selfreproducing 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.
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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 rubberstamped 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.
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HUMANS AND RIGHTS: COWNIAUSM, COMMERCE, AND GWBAUZATION
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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 "rebalancing" 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).
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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 development 45 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 developmentoriented 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 ideologyperhaps 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).
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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-favorednation" 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.
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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.
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. 53
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 vaguelyworded 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 highmindedness in practice. For instance, those rights are "resistant to tradeoffs, 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 "reasonable," leading a U.S.
Senator to argue that the P.M. should "place principles ahead of profit."); id. (but Kofi Annan and
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HUMANS AND RIGHTS: COWNIALJSM. COMMERCE, AND GWBALIZATION
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the ascendance of the "humanitarian impulse" as a part of globalization,
the desire to "do something" without doing much in the end. 57
In contrast to Guehenno's pessimism, the stunning achievement and
also the Achilles' heel of human rights advocates is their plausible claim
to the universality of international human rights. Such rights are intended
to empower potential victims and to change behavior and beliefs, not
merely to reflect some current consensus.
The advocates are like rational fools, seeking more than can possibly
be achieved under present conditions to develop the system further inevitably in opportunistic ways. The insurgents thus pursue the
programmatic use of a law which contains escape clauses for some, but not
all, national emergencies, and the advocates pragmatically accept less than
the whole loaf if this advances the human rights enterprise. Luhmann calls
international human rights "a kind of [modernist] program for catching
up," by equalizing access to economic and political subsystems and
insisting that certain norms be observed. 58
The relevant norms may not be the advocate's norms; they may be
values of the poor and powerless, for example. Yet human rights is a social
(treaty-based) contract for the reciprocal observance of each other's norms.
Human rights is based on the belief that wrong is wrong, and whether that
wrong is "Legal or illegal - what counts is how that wrong impacts
humanity."59 Anti-terror laws make it much more difficult to implement
this kind of social (treaty-based) contract in many countries. Property
rights, and contractual and enterprising freedoms, thought fundamental to
economic globalization, play no role in international human rights. Such
freedoms would detract from the socioeconomic and cultural human rights
that are based on communist and social democratic models -as opposed
to the unvarnished capitalism of globalization. Such tensions between
globalization and human rights make it difficult to deal with canons of
equalization (which Luhmann calls justice rather than equality) in diverse
a U.S. State Department spokesman immediately expressed concern about this threat to the
relevance of the United Nations).
57. GUEHENNO, The Impact of Globalization on Strategy, in TuRBULENT PEACE, supra note
12, at 88.
58. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 468; LUHMANN, OBSERVATIONS
ON MODERNITY, supra note 9, at 68 ("modernist" characterization). International human rights is
a good example of the autonomy oflaw, in framing nation-state decisions regardless of individuals'
social status. See JACKSON, supra note 2, at 383; LUHMANN, LAW AS ASOCIAL SYSTEM, supra note
8, at 368, 411; LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9, at 30;NOBLES & SCHIFF,
Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 50 (discussing Luhmann's ideas).
59. NOBLES & SCHIFF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 50
(discussing Luhmann's ideas). See LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 68.
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circumstances and countries, and in coherent and procedurally-consistent
ways.60
Most African and Asian countries did not participate in human rights
processes until after the Westernized framework, and the assumptions
concerning substantive rights, were formulated in the 1948 Universal
Declaration of Human Rights.61 Thus, many countries that were colonies
in 1948, as well as other countries, sometimes raise the relativist objections
that will be discussed below. Historically, the human rights movement has
been one of constant argumentation against objections used to justify
human rights abuses. Claims to universality are thought to be essential to
any meaningful moral discourse about rights, which may be required in
order to dominate the discourse with a variety of moral relativists. For
example, the relativists stress both the worldwide complexity and some
diversity of views about rights, among individuals and groups, stemming
from the community moral complexion of many Afro-Asian cultures.
While relativism evolves from anthropology, religion, and moral
philosophy (concerning the scientific and philosophic impossibility of
discovering absolute "truth"), rather than from international law, which
pursues the rival values of coherence and consistency, relativism
sometimes stems from the respect for self-determination that nationalists
try to harness. Nevertheless, relativists forget that their frequent!y-accurate
descriptions do not amount to justifications for relativism, especially as the
integrity of some cultures or the ways people are treated within them leave
much to be desired. The exponential growth of human rights NGOs
worldwide, including within cultures that relativists deem incompatible
with human rights ideals, casts the validity of relativists' arguments into
doubt. As a result, some of their arguments seem to justify oppression.62
60. Falk, supra note 53, at 20; NOBLES & SCHIFF, Introduction, in LAW AS A SOCIALSYSTEM,
supra note 8, at23 (discussing Luhmann's ideas). See LUHMANN, LAW ASASOCIALSYSTEM,supra
note 8, at 132-33; id. at 436-37, n.44 (quoting Benjamin Cardozo's statement, which is applicable
to equality as well-"Liberty in the most literal sense is a negation of law, for law is a restraint,
and the absence of restraint is anarchy"); MICHAELWAIZER, ARGUING ABOUT WAR 176 (2004) (but
the will to undertake egalitarian reforms may be lacking); Walter Mead, Power Goes Soft, FOREIGN
POL'Y, Mar.-Apr. 2004, at 51 ("democracy and human rights have global appeal," and U.S. "soft,"
cultural, power grows when it is seen as supporting these values).
61. See Brietzke, supra note 50.
62. ABDULLAHI AN-NA'IM, Human Rights in the Muslim World, in THE PHll.OSOPHY OF
HUMAN RIGHTS, supra note9, at 315, 316; FAGAN, Human Rights, in INTERNET ENCYCLOPEDIA OF
PHll.OSOPHY, supra note 51; Nickel, supra note 55; Skidelsky, supra note 7; STOILOV, Are Human
Rights Universal?, in HUMAN RIGHTS IN PHll.OSOPHY AND PRACTICE, supra note 31, at 87-89;
FERNANDO TESON, International Human Rights and Cultural Relativism, in THE PHll.OSOPHY OF
HUMAN RIGHTS, supra note 9, at 379. See LUHMANN, OBSERVATIONS ON MODERNITY, supra note
9, at 17 (when we speak of freedom, is there an emancipation from reason or does the unity of the
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For example, Xiaorong Li argues that the rejection by an "Asian
exceptionalism" of international human rights standards has been exposed
as consisting to fallacies, confusions, and mistakes.63
The fact that arguments like "Asian exceptionalism"acquire a localized
legitimacy reflects a reduced legitimacy of international human rights
ideals in that locale: Singapore is a good example. To expand this
legitimacy, the number of human rights, and the number of people covered
by them grows, at a rate exceeding even that seen in the growth of an
economic globalization. Yet human rights advocates capitalize favorable
world dissolve into relativism, historicism, and pluralism); id. at 27 (pluralism as the laziest of
compromises); AN-NA'IM, Human Rights in the Muslim World, in THE PHILoSOPHY OF HUMAN
RIGIITS, supra note 9; Abdullah An-Na'im, Human Rights in the Muslim World: Fundamentalism,
Constitutionalism and International Politics, 15 EUR. J. INT'L L. 400 (2004) (book review)
[hereinafter An-Na'im, Book Review] (The credibility of universalism requires a constant
dedication to the values of international legality); id. (Mashood Baderin distinguishes universality,
global acceptance of a theoretical construct, from universalism -the sociological and political
reality of actual interpretations and applications); Falk, supra note 53, at 18 (the "widespread
conviction that human rights are a Western invention being shoved down non-Western throats");
LI, "Asian Values" and the Universality of Human Rights, in THE PHILoSOPHY OFHUMAN RIGIITS,
supra note 9, at 404-05 (because economic growth does not guarantee subsistence for the poor, they
must be empowered to forestall their marginalization and exploitation, and to speak of their
discontent without fear;STOll.OV, Are Human Rights Universal?,in HUMAN RIGIITS IN PHILoSOPHY
AND PRACI1CE, supra note 31, at 87 (a 1993 Vienna Conference called international human rights
"universal, indivisible, interdependent, and interrelated."); id. (in human rights, no distinction is
made between a moral imperative and a legal category); id. at 88 (this universality stems from
European notions of natural law); Skidelsky, supra note 7 (quoting Hernando deSoto, people with
"dead" stocks, rather than the capital that flows from property rights in those stocks, are ''trapped
in the grubby basement of the precapitalist world."); TEsoN, International Human Rights and
Cultural Relativism, in THE PHILoSOPHY OF HUMAN RIGIITS, supra note 9, at 382 (the language of
human rights is borrowed from moral philosophy); id. at 383 (citing John Rawls, it is unnecessary
to have an infallible method of discovering moral truth, in order to speak about rights all should
enjoy); id. at 385 (relativism overlooks an important feature of moral discourse - its
universalizability); id.at 386 (relativism ignores Kant's categorical imperative that the moral worth
of persons are ends in themselves, not functions of the ends of others); WllllAMS, Culture &
Civilization, in ENCYCLOPEDIA OF PHU.OSOPHY, supra note 5, at 275 (particular cultures often
analyzed as isolated in time and space); id. (an emphasis on cultural relativity began in the 1920s,
as a reaction to the ethnocentricity of categories and value systems). But see Falk, supra note 53,
at 18 (human rights treaties "allow for almost limitless interpretations.").
63. LI, "Asian Values" and the UniversalityofHumanRights,in THE PHILoSOPHY OFHUMAN
RIGIITS, supra note 9, at 407. See id. at 307 (Asians were treated as mysterious and backward in the
nineteenth century, so it is ironic that they now claim that the incommensurability of rights entitles
them to special treatment because of their unique values); id. at 399-400 (Asian exceptionalism
argues that rights are culturally specific, which enables leaders to pick and choose; the community,
which collapses into the state, takes precedence over the individual; social and economic rights take
precedence over political and civil rights, especially among poor and illiterate people living under
instability; and everything is a matter of national sovereignty).
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outcomes and insulate unfavorable ones, perhaps by reinterpreting norms
through their emphasis on humanitarian laws, such as the Geneva
Conventions, while contending with the massive human rights violations
occurring in the name of anti-terrorism. Trade or investment sanctions are
usually the most coercive (but nonviolent) means of enforcing human
rights laws, but many such sanctions violate international economic laws.
Carlos Vasquez offers a simple solution which argues for simply breaching
the relevant international economic law.64 This is fine in theory, but some
states, and most private parties, will refuse to take human rights law this
seriously.
The contradictions in human rights law and how that law is applied will
have to be resolved: between the rights of humans and those of citizens
(i.e., those pre-modem preferential rights that discriminate against "aliens"
and that are usually stipulated by nationalists); between a formal legal
equality and the reality of a massive socioeconomic equality, resulting in
a rights inequality that is exacerbated by globalization; and between the
particularisms and relativism of rights that remain in various religious
traditions, especially in Hindu, Confucian, Islamic, Judaic, and some
African traditions where duties are deemed more important than human
rights. Inevitably, a pragmatic balance has to be struck between a cautious
universalism and a moderate, tactical particularism. The latter inevitability
means tolerating national legislative restrictions on some rights, where
these restrictions are plausible and nondiscriminatory responses to local
cultural conditions. Even given that balance, a valuable core of universal
rights will remain to life, physical integrity, and a fair trial.65 Fernando
Teson would add to this list freedoms of thought, association, religion, and
a prohibition on discrimination.66 Teson's additional rights are consistent
with a economic globalization, but those rights rarely agree with
nationalism or survive under governmental opposition. To give Luhmann
64. Vasquez, supra note 53, at 803.
65. AN-NA'IM, Human Rights in the Muslim World, in THEPlnwSOPHYOFHUMANRIGIITS,
supra note 9, at 316; Nickel, supra note 55; STOILOV, Are Human Rights Universal?, in HUMAN
RIGIITS IN PHILoSOPHY AND PRACfiCE, supra note 31, at 92-99; TEsON, International Human Rights
and Cultural Relativism, in THE PHILOSOPHY OF HUMAN RIGIITS, supra note 9, at 382. See
Cotterrell, lAw in Culture, supra note 5, at 5 (law can be a community of belief, a Weberian ideal
type); PATRICK HAYDEN, Introduction to Part Two, in THE PHILOSOPHY OF HUMAN RIGIITS, supra
note 9, at 369, 371 (the human rights covenants justify "investigation, diplomatic pressure,
economic sanctions and perhaps military intervention."); id. at 374 (the future of human rights lies
in "continued education, good will, sensitivity, direct condemnation of discrimination and acts of
violence, and increased accountability on the part of governments.").
66. TEsON, International Human Rights and Cultural Relativism, in THE PHILOSOPHY OF
HUMAN RIGIITS, supra note 9, at 382.
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the last word, human rights involve the constant unfolding of a paradox:
"rights are implemented only by their violation and the corresponding
outrage...."67
N. NATIONALISM
Nationalists try to reverse the modernizing collapse of the national into
the global. The multiculturalism or pluralism currently fashionable in
political philosophy is rejected by nationalists because it treats local
cultures like "side shows in a theme park."68 An "international community"
of globalizers and human rights activists is seen as an oxymoron: like
politics, all culture is local. Economic globalization may replace
colonialism, an imperfect globalization from the past, as a major motive
for organizing nationalist "movements," since all economics is global.
Luhmann would explain that in order to analyze the resistance of "old"
cultures to the destructive effects of"evolution," and to the corresponding
growth of "freedom" under law, we need to remove the formal legal
strictures of kin, clan, birth, and status.69
The accelerating disappearance of local languages through voluntary
abandonment, for example, can be attributed to a global communications
emphasis on English, Spanish, and Chinese. It may be that local languages
were perfectly adapted to particular habitats, but adaptions are now
changing so rapidly that the languages seems backward, especially among
younger people interested in new ways of material life. Such trends
contrast sharply with the views of some anthropologists, who would
preserve local cultures (including customary laws) and languages as if they
are specimens in a "museum of peoples." Perhaps this is because
anthropologists need local cultures and languages as grist for their
analytical mills.70
67. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 487.
68. KING, Legal Cultures in the Quest for Law's Identity, in COMPARING LEGAL CULTURES,
supra note 5, at 123. See Cotterrell, Law in Culture, supra note 5, at 2.
69. LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9, at 22, 75; NOBLES & SCHIFF,
Introduction, in LAw AS A SOCIAL SYSTEM, supra note 8, at 30, 49 (discussing Luhmann's ideas).
See LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 468 (in contrast with a national science
or economy, national legal systems "can still be afforded today ... (even if only in terms of
international associations, in which they recognize each other . . . through public international
law)").
70. Babel Runs Backwards, supra note 9, at 62-63. See LUHMANN, LAW AS ASOCIALSYSTEM,
supra note 8, at 272 ('back to nature' movements have little chance of succeeding in the face of
modernizing subsystems); id. at 272, 386 ("pluralistic" laws can succeed only where expectations
are as modest as the means of enforcing them); Babel Runs Backwards, supra note 9, at 63 (quoting
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Still, Andrew Harding properly notes the "irony" that globalization also
spawns an emphasis "on locality as the true or significant identity."71
Governments and local groups should arguably be free to choose their own
arrangements, as counterweights to powerful Americanized or Eurocentric
cultural forces, but how and when do nationalists pursuing this objective
go too far? They usually see loyalty as properly owed to the ideal political
form of one "nation" per state. One hundred and ninety-five states are
currently licensed by an international recognition to govern up to 5,000
nations. Such nationalist-revised, fragmented nation-states would likely
become a force for ethnic, religious, linguistic or cultural exclusivity and
mobilization for development, perhaps or, more darkly, for identifying
enemies who ostensibly forestall development, nation building or military
success. In particular, there is a need to break the repetition of Hobbesian
nationalist cycles: war-conquest-empire-oppression-succession-anarchy
cycles, which reinforce inequalities in wealth and power and different
understandings of how we should live. The nationalist role for law in all
of this is to conserve a carefully-reconstructed cultural heritage.72
Ted Gurr claims that, like globalization and human rights, nationalism
is both an indirect consequence of modernization and contentions for
power (i.e., "culture wars" in the eyes of some and achieving the right to
Kenneth Hale, "When you lose a language,"it's "like dropping a bomb in a museum."); id. (quoting a
UNESCO paper, "Every time a language dies, we have less evidence for understanding patterns in
the structure and function of human language, human prehistory, and the maintenance of the
world's diverse ecosystems." The latter is true and tragic, but it does not follow that we can and
should thus "save"such a language; people cannot be forced to speak it, and thus to keep it in touch
with their contemporary realities.).
71. Andrew Harding, Peripheries and Public Law: Some Thoughts on the Constitutional
Status of Regions and Peripheries in South East Asia (2004) (unpublished manuscript, on file with
author).
72. JACKSON, supra note 2, at 92; STANLEY BENN, Nationalism, in 5 ENCYCLOPEDIA OF
PHILOSOPHY, supra note 5, at 442, 442-43; Brietzke, supra note 1, at 70; ALAN BULLOCK,
Nationalism, in THE FONTANA DICTIONARY OF MODERN THOUGHT 409 (Bullock & Oliver
Stallybrass eds., 1988); Cotterrell, Law in Culture, supra note 5, at 5; WALZER, supra note 60, at
132-34, 173, 176. See LUHMANN,0BSERVATIONSONMODERNITY,supranote9,at 101 (the cultural
promise of something better, even if it is snake oil). DAHBOUR, The Ethics of Self·Detennination:
Democracy, National and Regional, in HUMAN RIGHTS IN PHILOSOPHY AND PRACTICE, supra note
31, at 506 (nationalism as an escape from cultural marginalization through state-like institutions,
and the assumption of an important connection between the welfare of the individual and of the
group); The Politics of Values, EcONOMIST, Oct. 9, 2004, U.S. Election 2004 insert, at 29
(commentators tried to poke holes in the obvious reality of U.S. "culture wars" by arguing that most
people have "fairly nuanced" and changeable views on many things).
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HUMANS AND RIGHTS: COLONIAUSM, COMMERCE. AND GLOBAU7ATION
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culture for others) - in newly-fluid situations.73 Consider recent events in
Ukraine, which illustrates a movement from a nominal independence
dependent on Russia to a nominal independence dependent on the EU,
NATO, and U.S. governmental and NGO "democratic" interventions. 74
Gurr usefully finds five factors relevant to the success of a particular
nationalism. The first factor is the salience of the "nation's" identity,
especially when it correlates with inequities in status, economic well-being,
and access to political power. The second factor is the incentives to
organize based on past losses or fears of future losses. Such incentives can
create a potent combination of self-interest, passion, and solidarity. The
third factor is the capacities for collective action, which are based on the
foregoing criteria. The fourth factor is opportunities arising in the political
subsystem, based on strategic assessments and tactical decisions: that is,
good timing in building group morale and mobilization, or in selecting
targets. The fifth factor is the foreign support of, or opposition to, a
nationalist movement, which can lead to more protracted conflicts,
opportunities for mediated settlements.75
Religions deserve separate treatment as sources of nationalism, despite
religions' significant similarities to nationalism. Religions resent being
relegated to the likes of Luhmann's functional subsystem, expressing
communitarian values from the past through the themes of survival and
revival that are also seen in Luhmann's descriptions of an ethnic
nationalism. For Luhmann, other functional subsystems no longer require
religious support for the positions they take. Religion can thus be shrugged
off as a chance or regional peculiarity.76
73. GURR, Minorities and Nationalists: Managing of Ethnopolitical Conflict in the New
Century, in TuRBUlENT PEACE, supra note 12, at 166. See WllllAMS, Culture & Civilization, in
ENCYCLOPEDIA OF PHILoSOPHY, supra note 5, at 179.
74. See Nadia Duk, In Ukraine, Homegrown Freedoms, WASH. POST, Dec. 4, 2004, at A23;
infra notes 112-13 and accompanying text.
75. GURR, Minorities and Nationalists: Managing of Ethnopolitical Conflict in the New
Century, in TuRBULENT PEACE, supra note 12, at 167-73, 177-79; See WllllAMs, Culture &
Civilization, in ENCYCLOPEDIA OF PIDLOSOPHY, supra note 5, at 178 (nationalism can involve
cooperation among cultures and religions-as in India at Independence); BENN, Nationalism, in
ENCYCLOPEDIA OFPIDLOSOPHY, supra note 5, at 443.
76. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 263, 470; LUHMANN,
OBSERVATIONS ON MODERNITY, supra note 9, at 61. See Mark Chaves, Secularization as Declining
Religious Authority, 72 Soc. FORCES 749 (1994) (discussing secularization as declining religious
authority, in Luhmannesque ways). Countries ranking low in globalization exhibit high levels of
religious participation, but there are significant exceptions. The United States and Ireland, in
globalization's top ten, are among the world's most religious societies, while Greece and Ukraine,
relatively low-ranked globalizers also have low rates of religious participation. Measuring
Globalization, supra note 9, at 62.
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Religious fundamentalism amounts to the belief that it should not be
shrugged off and that nothing fundamental should change, even within an
international framework that has holistic implications radiating far beyond
any local religious sub-subsystem. Fundamentalism is a global way of
seeing the world, but only in the religious terms that, as a result, restrict
certain types of explanations. A fierce battle transpires between religious
fundamentalists and religious progressives or reformers to capture the vast
majority of people that are neither fundamentalists nor progressives.
Luhmann concludes who progressives must, and will, win, because
modernization is crucial to global success, and modernization without
Westernization will fail. Westernization (not Americanization, for the
German Luhmann) means the privatization of religion, which focuses on
the concerns of the individual in a secular world.77
International attention tends to focus on Islamic fundamentalism, but
other significant religious nationalisms exist, often with more modest
territorial ambitions.78 A religious nation-state, more likely a federation of
religious nationalists, remains a dream for some Muslims, despite quarrels
among the different schools of Islam over constituting "the Caliphate."
Islamic fundamentalism tends to treat international human rights as a
Western cultural imperialism, despite the curbs on freedom of religion
permitted under article 18(3) of the Civil and Political Covenant. This subarticle creates a flexible criteria for favoring a particular religion that focus
on safety, order, health, morals and the fundamental rights of others.
William Schulz argues that links between violations of human rights
and the onset of a terrorism can be ascribed to the vast number of
unemployed youth and Western tolerance for incumbent Muslim
autocrats.79 Like some other fundamentalists, religious Islam tends to grant
77. BEYER, supra note 5, at 10, 65, 67, 70; KING, Legal Cultures in the Quest for Law's
Identity,in COMPARING LEGALCULTURES, supra note 5, at 123, 125; Robin Wright, After GriefThe
Fear We Won't Admit, WASH. POST, Sept. 12,2004, at Bl.
78. E.g., BEYER, supra note 5, at 115-17 (a history of American fundamentalism, especially
opposition to Darwinian evolution, "modernist"critics undermining God's sovereignty, and a "New
Deal socialism" undermining a moral regeneration); id. at 117-18 (a discjplined personal lifestyle
as the solution to nonreligious problems, such as the perceived status decline of rural America); id.
at 157 (a tremendous amount of religious activity on all sides produced rather meager results,
illustrating religion as a functionally-differentiated mode of communication). See CHARLESTAYLOR,
A World Consensus on Human Rights, in THE PIDI.OSOPHY OFHUMAN RIGIITS, supra note 9, at 409,
416-17 (an austere reformism by a small elite removed from the outlook of most Thai Buddhists,
with an emphasis on social justice and well-being, but not democracy.
79. Hannah Pakula, Book Review: Tainted Legacy, 9/I I and the Ruin of Human Rights
(review of WilLIAM SCHULTZ, TAINTED LEGACY, 9/11 AND THE RUIN OF HUMAN RIGIITS (2004),
available at http://hrw.org/Englishldocs/2004/12129/usdom9938.htrn (last visited July 19, 2005).
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HUMANS AND RIGHTS: COWNIAUSM, COMMERCE. AND GLOBALIZATION
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rights under strict classifications of faith and gender. The desire for more
rights among various Islamic groups helps fuel reforms such as educational
reinterpretations of moral duties, and substituting religious penalties for
legal sanctions. A primary cause for violence is a globalized, or Americandominated fear, stemming from an inability or unwillingness to understand
Islam. The Bush Administration draws a green curtain around the Muslim
world, creating an enduring divide, rather than a stable bridge which
integrates Muslims living both at home and abroad.80
The legal rubric used to encompass the demands of nationalism is the
international human right to self-determination. This right to selfdetermination is the subject of article 1 of both the Civil and Political and
the Economic and Social Covenants of 1960, and a right implicit in the
1948 Genocide Convention.81 It is essential this right be the most
important, because other rights are pretty meaningless until an individual's
self-determination right is secured, as a shield against oppression and
See An-Na'im, Book Review, supra note 62, at 401; Chaves, supra note 76, at 770 (seeing a diffuse
discontent mobilized into movements).
80. AB-NA'IM, Human Rights in the Muslim World, in THE PHILOSOPHY OF HUMAN RIGIITS,
supra note 9, at 320, 322-23, 329. See BEYER, supra note 5, at 3 (Salman Rushdie as an affront to
what Muslims hold most sacred, and thus a negation of themselves as global actors); An-Na'im,
Book Review, supra note 62, at 400 (current Islamic scholarship stresses the compatibility of
Islamic law with modem democracy, constitutionalism, and even human rights); AN-NA'IM, Human
Rights in the Muslim World, in THE PHILOSOPHY OF HUMAN RIGIITS, supra note 9, at 315 (the
Shari'a, the historical formulae of Islamic religious law, regulates all aspects of life with moral and
religious authority, but there are other formative forces behind behavior, society, and polity); id.
at 316 (human rights advocates must work within this framework, without being bound by historical
interpretations of the Shari'a); id. at 333 (reinterpretation as reform must be timely, address urgent
concerns, and be effectively disseminated); Ariana Cha, From a Virtual Shadow, Messages of
Terror, WASH. POST, Oct. 2, 2004, at Al (Bush is losing the propaganda war over Iraq to radical
Islamic web sites). Lazare, supra note 22, at 32 (quoting Olivier Ray that, the danger of Al Qaeda
"has been much exaggerated" and will never be more than a "security problem"); id. (Osarna's
ideological mentor, Zawahiri, pondered why the 1981 assassination of Anwar Sadat and the 1990s
fundamentalist revolt in Algeria ran aground); Fareed Zakaria, Glimmers of Hope in the Arab
World, WASH. POST, Dec. 21, 2004, at A25 (much talk and some action over economic and political
reforms, reducing illiteracy and corruption, but "Arab elites remain enormously resistant to
reform"); The New With the Old, EcoNOMIST, Oct. 16,2004, at 79 (younger Muslims in "the West
are attracted by the idea of a simple, stentorian version of their faith, stripped of the cultural
accretions that were built up in the 'old country' over many centuries, and compatible with modem
patterns of consumption."); Lazare, supra note 22, at 44 (citing Giles Kepel, neither a modernizing
nor an ultra-militant Islam has won, given thefitna-disintegration and chaos-from the West
Bank to Baghdad to Kabul). But see id. at 44 (citing Kepel, Zawahiri "is a ruthlessly modem mind"
with an ''up-to-the-minute sense of global trends and opportunities.").
81. See James Crawford, The Rights of Peoples, in THE PHILOSOPHY OF HUMAN RIGIITS,
supra note 9, at 427, 430 (the most vigorous and vigorously disputed of rights); Brietzke, supra
note 50.
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enforced deprivations. But in practice, some nationalist movements and
their governmental opponents are so violently intolerant the pursuit of selfdetermination becomes a net destroyer of human rights. For example, an
almost Germanic nationalist romanticism can displace the cool rationality
seen in economic globalization, by creating regional instability and
unflattering portraits of those who are not beneficiaries of a particular
nationalism. The result is a new world dis-order, which usually occurs
when weaker political actors attempt to assert the independence necessary
to maintain a precarious national identity, by deploying the forces of
cultural relativism discussed above.82 A national sovereignty becomes the
hallmark of nationalism's success, through a provocative secession from,
or through the deconstruction of, a larger state. Through economic
globalization, and human rights, sovereignty has already been partially and
unevenly abandoned as the anchor for order, stability, and finality in
international law. Nationalism puts much additional strain on this anchor.83
Nationalism and self-determination illustrate, in extreme fashion, the
problems and possibilities of the international human rights movement's
attempts to secure rights through law-as-order, as well as law-as-justice.
An international jurisprudential confusion results from the conflicts that
nationalism often creates, and from the establishment lawyers' tending to
treat the group rights aspect of self-determination reductively, under a
methodological individualism. Admittedly, there is a need to protect
individuals against actions by the group. Such actions often stem from the
nationalist desire to secure loyalty from all "citizens."84 Contrary to
82. Brietzke, supra note I, at 69, 73. See WilllAMS, Culture & Civilization, in
ENCYCLOPEDIA OFPHILoSOPHY, supra note 5, at 78-79, 230-3I (romanticism as a mostly Germanic,
nineteenth century artistic and philosophical movement, seeking liberation from rules and forms
as an alternative human development, a fresh and authentic feeling based on subjectivity and folk
culture); BENN, Nationalism, in ENCYCLOPEDIA OF PHILOSOPHY, supra note 5, at 444 (discussing
a German, romantic anthropological nationalism); id. at 445 (citing Adam Muller) (e.g., Kantian
obligations circumvented by the assertion that German Romantics individual's permanent will is
more truly expressed by the Volksgeist); MALCOLM BRADBURY, Romanticism, in THE FONTANA
DICTIONARY OF MODERN THOUGHT, supra note 72, at 548 (a reaction to classicism, mechanism,
rationalism, and modernism - expressive and nihilistic, with deep nationalist and populist
assumptions); supra text accompanying notes 60-62.
83. Brietzke, supra note I, at 92, 94; Li, "Asian Values" and the Universality of Human
Rights, in THE PHILOSOPHY OFHUMAN RIGHTS, supra note 9, at 400; TEsON, International Human
Rights and Cultural Relativism, in THE PHILOSOPHY OF HUMAN RIGHTS, supra note 9, at 379. See
WAIZER, supra note 60, at I74-75 (sovereignty as a means of preserving distinctiveness, and
perhaps of expanding territory); Pahuja, supra note 3, at 389; supra text accompanying notes 59-62
(cultural relativism).
84. WAlZER, supra note 60, at 176; Brietzke, supra note I, at 7I-72, 78-79, 82, I28. See
Mikmak Tribal Soc. v. Canada, U.N. Doc. CCPR/C/43/D/20511986 (199I). Mikmak leaders
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Luhmann's strict individualism,85 but like recently-expanded notions of
corporate criminal liability, an international criminal law is slowly
becoming more supportive of collective obligations and liabilities. These
international criminal laws were previously discarded out of revulsion over
their misuse by the Nazis, and serious problems now arise over collective
punishments for "terrorism."
As a result, self-determination becomes a legal quasi-order or a quasiprivate international law. In other words, self-determination has a strong
dialectical influence on the public international law concerning the balance
between human rights and a territorial integrity. With regard to a quasiprivate globalization law, its laissez-faire capitalism contrasts sharply with
the neo-mercantilism adopted by many nationalists. For indigenous
peoples, self-determination often encompasses a noncapitalist way of
material life, which involves more of an ecological relation to hunting,
fishing, water rights, or farming. This means that, for indigenous people,
their self-determination is often a governance without government. For
instance, self-determination for a Palestinian or a Kurd is an impossibility
separated, or even segregated, from other Palestinians or Kurds: the
expression (without repression) of those aspects of personality bound up
in a cultural identity, which is a gestalt greater than the sum of its parts.
Self-determination is thus an externality in part, a public good (or bad,
perhaps) which can only be produced through a cooperation which
excludes no member of the relevant nationality - however defined. It
would be difficult to convince a Palestinian or Kurd that self-determination
is a "backward" right which forestalls the achievement of more
"important" rights. But only a suicidal state willingly surrenders territory
claimed rights violations to individuals, and also that they were trustees protecting the rights and
welfare of"the people." /d. Canada argued threats to "national unity." /d. The U.N. Human Rights
Committee held that its jurisdiction extends only to individuals who invoke individual rights, as
opposed to the collective right to self-determination. /d. <Jl 37.
85. See KING & THORNHilL, supra note 8, at 6 (criticizing Luhmann's ideas, theories of the
growth of individualism are partial and incomplete); id. (individuals do not belong to any social
subsystem, but depend on their interdependence); LUHMANN, LAW AS ASOCIALSYSTEM, supra note
8, at 142-43 (people exist only as individuals and statements about collectivities are difficult to
verify, while the function of law deals with expectations directed at society and not individuals);
id. at 160 (decision-making organizations provide rights and obligations, but cannot guarantee
collective expectations); id. at 484 (the liberal tradition is dramatically transgressed by collective
rights, especially self-determination, an "uncharted terrain" where "violence is the ultimate
arbiter."); NOBLES & SCHIFF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 50-51 (for
Luhmann, wrongs are wrongs, nation-state programs notwithstanding, but wrongs are more likely
to concern individuals rather than groups); Viskovatoff, supra note 8, at 506-07 (valid criticism of
Luhmann that he fails to bridge individualism and collectivism, but this is a fragmentation
bedeviling sociology generally).
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or important functions. Unfortunately, a majoritarian form of politics
cannot be trusted to protect minority rights, is a weaker form of selfdetermination. Constitutions even democratic ones, are often too weak to
protect such rights.86
In the future, such conflict and jurisprudential confusion should be
reduced procedurally, to better integrate self-determination with other
international legal externalities. More explicit burdens of proof are needed,
to make the entitlement to self-determination more concrete -within a
specialized agency having the (inevitably limited) force of the United
Nations behind it. In assessing the tactics used, such burdens should favor
democratization among both the nationalists and their opponents, and
should guarantee the protection of rights for both groups. Also, a greater
range of viable remedies between repression by, and succession from, the
larger state is needed, to make the deconstruction of an existing state (a
step which probably endangers future development prospects) necessary
only if that state remains recalcitrant. The legal goal should be to guarantee
diverse vibrant cultures, and not merely to create the anthropological
museum of cultures discussed earlier.87
Focusing on problem cases like Kurds and Palestinians should not lead
us to ignore the fact that most self-determination works under international
laws much of the time. In any event, the alternative to tolerating selfdetermination attempts is often to tolerate a continued repression by the
larger nation-state. We can take comfort from Gurr's demonstration that,
from 1945 to 2000, ethno-political conflict and discrimination decreased
significantly worldwide, and also take an interest in the thoughtful reforms
Gurr proposes.88 Yet Debra Satz concludes:
86. Brietzke, supra note 1, at 86 (quoting Joseph Raz); id. at 98-99, 131; Yanira Reyes
(personal communication); see LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 477-78
(emphasis added) ("Possibly the most important problem is the growing demand for individual selfdetermination, on which the classic liberal (form-giving) instruments appear to founder); id. at 482
n.42 (human rights are not necessarily antisocial rights); Luhmann, The World Society, supra note
10, at 132; NOBLES &SCHIFF, Introduction, in LAW AS A SociAL SYSTEM, supra note 8, at 46 (since
there is no legal answer to some questions, these can be externalized to religion, ethics, economics);
id. at 50 (discussing Luhmann's ideas, "obedience to all of the laws, all of the time would paralyze
self-determination.").
87. Brietzke, supra note 1, at 110-31. See id. at 128 (this conflict and confusion raises serious
questions about how global governance can be managed without a global government).
88. GURR, Minorities and Nationalists: Managing of Ethnopolitical Conflict in the New
Century, in TuRBULENT PEACE, supra note 12, at 164-68, 180. See id. at 180-84 (principles for
managing ethnic discrimination: 1) recognize and promote group rights through democratic
institutions, if possible, as in lilmost all European countries; 2) recognize the right to a substantial
autonomy where necessary, adopting a Spanish-style asymmetrical system rather than a "one size
fits all" federalism; 3) mutual accommodation where possible-e.g., the split-up of the Soviet
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We live in a "world house" where only a fraction of the inhabitants
have a decent standard of living, and that standard can be
maintained only by strict controls on immigration across national
borders. Until the inequities between the fortunes of individuals,
rooted in arbitrary facts such as place of birth and ethnicity are
addressed, the work of reconciling ethnic nationalism with the
common human· status of all ... remains undone.89
With the growing interdependence that now seems inevitable through
economic globalization and the growth in a global civil society, national
boundaries will likely become less important, except as means of
accountability for the delivery of human rights, democracy, development,
other services, and even the rejection of some aspects of Westernization
which are unpalatable locally. Sophisticated models of federalism or the
"subsidiarity" notions being developed within the European Union are
likely legal steps in this direction.90
V. {UN)COMMON
ELEMENTS
Luhmann might conclude that the many relatively new rules and the
few new or retooled institutions we surveyed nicely match changing global
Union, with an unfortunate unwillingness to compromise over Chechnya; 4) the active engagement
of the major powers, the OSCE, the Organization of Islamic Nations Conference, the World
Council of Churches, Jimmy Carter, George Mitchell over Northern Ireland; and 5) coercive
interventions in response to gross human rights violations-e.g., Serbia and East Timor). See also
Tom Ginsberg (personal communication); Harding, supra note 71 (limited constitutional guarantees
for regional arrangements in Southeast Asia may be the "least worst option," given that the best
solution requires such missing factors as an independent judiciary and commitment to the rule of
law).
89. Debra Satz, The World House Divided: The Claims of the Human Community in the Age
of Nationalism, in POUTICALORDER(Ian Shapiro & Russell Hardin eds., 1996) at 342. See BEYER,
supra note 5, at 23; FAGAN, Human Rights,in INTERNET ENCYCLOPEDIA OFPHILOSOPHY, supra note
51 ("the doctrine of human rights is ideally placed to provide individuals with a powerful means
for morally auditing the legitimacy of ... national and international forms of political and economic
authority.").
90. See BREYER, supra note 5, at 23 (citing John Meyer that states are legitimated as citizens'
representatives because they pursue progress and equality); FAGAN, Human Rights, in INTERNET
ENCYCLOPEDIA OF PHILOSOPHY, supra note 51; GUEHENNO, The Impact of Globalization on
Strategy, in TuRBUlENT PEACE, supra note 12, at 92; KING, Legal Cultures in the Quest for Law's
Identity, in COMPARING LEGAL CULTURES, supra note 5, at 122-23; PAHUJA, Globalization and
International Economic Law, in JURJSPRUDENCE RlR AN INTERCONNECTED GLOBE, supra note 6,
at 241; STOILOV, Are Human Rights Universal?, in HUMAN RIGHTS IN PHILOSOPHY AND PRACTICE,
supra note 31, at 102.
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cultures and illustrate how such processes evolve, in complex relation with
each other, as adaptations to disappointed expectations. Moreover, this
survey, Luhmann may contend, accounts for changes in the ways an
interchangeable wealth and power are used. Communicating in more or
less globally-agreed language, legal actors are as likely to discover
promising new perspectives on old problems as other actors may possibly
find consensus solutions. Cherished values, like autonomy, coherence, and
consistency of international law, are increasingy! unattainable in a complex
world of increasingly differentiated but interdependent sub-subsystems.
Thus the always-problematic international law enforcement and its
legitimacy and accountability, are increasingly treated like externalities to
law and shunted off to other subsystems. Attempts at explicit reforms of
such processes create the unintended side effects that fuel still more legal
evolution. This process is illustrated by U.S. tax law, where loopholes are
found, exploited, and then closed, only to create new loopholes in the
process. In other words, new profit-making opportunities are constantly
being discovered through the economic globalization process, while old
oppressions appear in new forms. Valiantly trying to deal with new
oppressions, the various U.N. human rights bodies interpret and act in
modest ways under rather vague covenants, against a counterpoint created
by new conventions. This is seen from the bodies' own decisions, experts'
reports and other bodies of "soft law," and national (domestic) legislation
and court decisions, which usually involve novel assertions of "universal
jurisdiction" over the most serious of human rights violations. 91 The rights
culture is strong and popular enough that a country openly flaunting
outcomes from this complex process can expect some unpleasant
consequences.
The three strands of international law/culture we surveyed are processes
without end, and struggles which are "the logical result of overall
economic, political, cultural and legal advancement," which do not
necessarily amount to reform.92
Structurally, a simultaneous, almostdialectical "particularization of universalism (the rendering of the world as
a single place) and the universalization of particularism (the globalized
expectation that sovereignties ... should have distinct identities)"93 tries
91. See KlNG & THORNHilL, supra note 8, at 79, 81, 110-12 (discussing Luhmann's ideas);
Imer Flores (personal communication); NOBlES & ScHIFF, Introduction, in LAW AS A SOCIAL
SYSTEM, supra note 8, at 45; UNIVERSALJURISDICTION: NATIONALCOURTS AND THE PROSECUTION
OF SERIOUS CRIMES UNDER INTERNATIONAL LAW (Stephen Macedo ed., 2004).
92. STOIWV, Are Human Rights Universal?, in HUMAN RIGHTS IN PHILOSOPHY AND
PRACTICE, supra note 31, at 91 (referring to human rights).
93. BEYER, supra note 5, at 28.
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to create as much strength, diversity and legitimacy as is possible under the
circumstances. Law and legal culture slowly seep into more and more areas
of global life, creating a claims consciousness: growing expectations of
justice and recompense in the formulation and fulfillment of individual and
group choices.94
Obviously, the biggest weaknesses in the three tracks under discussion
are (except in the dispute settlement process under the WTO) imperfect
institutionalizations, and enforcement capabilities which rely on an
underdeveloped international political subsystem, with few rules and
almost no institutions along some tracks: to meet the demands of
nationalism and self-determination, for example. Thus, there is a
continuing need for the sovereignty of strong states, which are necessary
and inevitable enforcement adjuncts to global governance without effective
global government. Trying to govern the behavior of multinational
corporations is a good analogy. Departing from Luhmann's views,95
sovereignty is best understood as particular reservations of power, having
emotional appeal within the nation-state in question and serving as a quasifederal check and balance on international trends which move in directions
disfavored by the state in question. These reservations include the ability
to withdraw from an international arrangement, a tactic that grows more
difficult to execute in our increasingly interdependent world.96
International reliance on state sovereignty must continue until a
sovereignty substitute can be found for particular states' political, even
military "muscle."This might be a legitimacy-based and active consent for
those State functions which are internationally governed. For Luhmann,
legitimacy is produced in the political subsystem that is underdeveloped at
the international level-a fact he does not account for, produced from a
reservoir of appealing values which steer and justify legal policies. The
justifications we see are not anchored by anything more weighty than the
freestanding sub-subsystems creating them, like economic growth (but not
development) for economic globalization, universalism in human rights,
and the various local benefits that imperfectly justify nationalism or selfdetermination at the international level.
94. COITERREI.L, The Concept of Legal Culture,in COMPARINGLEGALCULTURES, supra note
5, at 20 (citing Lawrence Friedman).
95. See KING & THORNHilL, supra note 8, at 91 (Luhmann rejects sovereignty as a founding
condition of political order, as a gross simplification and as one among many systems which limit
the political order); id. at 111 (inLuhmann'sRechsstaat, sovereign power is always bound by law);
LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 409 (a modern constitution destroys
sovereignty as arbitrariness, transforming it into a separation of powers and differentiation of legal
and political subsystems).
96. JACKSON, supra note 2, at 381, 386, 391.
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The limited ability to regulate and control at the international level, and
the need to keep so many odd balls in the air simultaneously, lends a
pragmatic appearance to the processes under discussion. Transient
opportunities for mobilization and action must be grasped quickly, even if
this means a diffusion of power, incremental decisions, uneven
development through, for example, limited accommodations to aspects of
religion which are immune to rational criticism, and even the deployment
of inevitably small strategic doses of coercion against gross human rights
violators. In other words, do what you have power to do and can get away
with.97 All of this can best be seen in the search for incentives to observe
the cultural goals along our three tracks. Those who reap the benefits of
human rights, self-determination, and even the value-creating potentials of
economic globalization do not and cannot pay anything like the full costs
of such international public goods. These goods potentially belong to
everyone, and thus no one wants to pay for, and devote much effort to,
producing them, in the absence of altruistic motives such as those which
lead people to donate blood to, or corporations or governments to support,
the Red Cross/Crescent.
The successful creation of such incentives can be based on a common
core of people-centered cultural values on our three tracks. Most
commentators summarize these values as achieving an individual and
group " dignity," defined on the basis of John Rawls's "overlapping
[global] consensus" perhaps,98 or "the pursuit of spiritual as well as
material well-being," if dignity and Rawls are thought too ethnocentric. 99
The idea is the elimination of abject poverty and the implementation of
minimum environmental, social, and political standards, often while
pursuing other goals internationally. You might prefer Amy Chua's
97. Id. at 133; Yanira Reyes (personal communication).
98. TAYLOR, A World Consensus on Human Rights, in THE PHILOSOPHY OF HUMAN RIGHTS,
supra note 9, at 418-19 (discussing Thailand and JOHN RAWLS, POUTICALLmERAUSM (1993)). See
Grundgesetz (German Federal Constitution) art. I (dignity is inviolable and "the duty of all state
authority.");Sv. Makwonyane, 1995(6) BCLR 665(cc); (3) SA391(cc) (the entitlement to be treated
as worthy of respect and concern is the foundation for much of the South African Bill of Rights);
WilLIAMS, Culture & Civilization, in ENCYCLOPEDIA OFPHILOSOPHY, supra note 5, at 79 (stressing
complexity of relation between general human development and particular ways of life and
governance); AN-NA'IM, Human Rights in the Muslim World, in THE PHILOSOPHY OF HUMAN
RIGHTS, supra note 9, at 374 (discussing a similar Islamic moral imperative); TEsoN, International
Human Rights and Cultural Relativism, in THE PHILOSOPHY OF HUMAN RIGHTS, supra note 9, at
379, 382-83.
99. TAYLOR, A World Consensus on Human Rights, in THE PHILOSOPHY OF HUMAN RIGHTS,
supra note 9, at 419 (citing Yasuaki Onuma, concerning a standard which can arguably be applied
to groups as well).
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formulation of eliminating "indignity, hopelessness and grievance."100 In
1949, Jacques Maritain posited consensus over liberty, equality and
fraternity, while admitting the many legitimate ways of pursuing these
goals. 101 For each definition, international law offers a center for values
and, by such criteria, the most positivized and institutionalized of our three
tracks, economic globalization, is most in need of reform. But such reform
requires little more than implementing the lip service globalization's senior
officials regularly pay to development (rather than a mere economic
growth), environmental protections, and other human rights.
These similarities in the three tracks under analysis are counterbalanced
by the contradictions that interactions among these tracks produce. Such
contradictions will likely continue to produce hybrid or halfway outcomes,
along the lines that follow. A significant economic growth legitimates
globalization, so far, but at the price of financial crises (often attributed to
the premature capital market liberalizations ordered for less-developed
countries by the IMF and World Bank), growing environmental
degradation and economic inequality, and barriers to achieving labor,
welfare, civil, and developmental human (or dignitary) rights. A dialectical
relation between some tracks, for example between the economic growth
of globalization and the development pursued by human rights advocates,
or self-determination and other human rights, is potentially fruitful,
because no track is complete without the others. But an integration of these
tracks would be even more fruitful. 102 Globalization both endangers local
cultures, religions, and languages, by making them seem inessential
luxuries, and renders these localisms more essential to a free choice of
identity in an increasingly homogenous, Americanized or Eurocentric
world.
The property, contractual, and enterprising rights, created through the
establishment of legal positivism of an international economic law, are
ignored by insurgent human rights advocates, who use innovative legal
(and nonlegal) techniques which revolve around reciprocal observances of
a treaty-based international social contract. The globalizers' establishment
rights operate to negate many of the human rights advocates' rather anticapitalist rights. Nonetheless, these advocates try to legitimate their human
rights, and lend them a measure of unity and consistency, through the
purported universality of these rights. This notion is attacked in tum by the
100. CHUA, supra note 23, at 4.
10 l. TAYLOR, A World Consensus on Human Rights, in THE PHILOSOPHY OF HUMAN RIGHTS,
supra note 9, at 410 (quoting Maritain). See LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8,
at 368; LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9, at 90.
102. See infra text accompanying notes 122-26 (integration).
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economic globalizers, the philosophical and anthropological relativists, and
religious and ethnic nationalists.
Nationalists disrupt the neat schemes of the others by demanding a
sketchy and somewhat incoherent self-determination, which is both a
precondition to other human rights and their frequent negation, through an
extralegal violence and intolerance occurring when nationalists or their
opponents go too far. Nationalists are thus insurgents disdained by human
rights insurgents, as well as by the establishment globalizers who resent an
autochthonous and fragmentary special treatment demanded for a
nationalist's favored group. While sovereignty is necessary fully to achieve
the nationalist agenda, it is seen as an unwelcome intrusion in the pursuit
of other human rights or of economic globalization. One prominent fear is
that, except for lucky city-states like Singapore (but not Macau), the
outcome of nationalist fragmentations will be territories and populations
too small for purposes of development. Globalizers somewhat
unrealistically respond that genuine development is possible for small
states if all national barriers to the movement of trade, capital, technology,
and labor are removed.
VI. HOW AND WHY INTERNATIONAL LEGAL PROCESSES
(DO NOT) WORK
The contradictions summarized in the last three paragraphs are some of
the legal consequences of governance without a government able to
harmonize and integrate conflicting laws and policies. Earlier analyses
show that, accordingly, any postulated unity of global society readily
dissolves into a multiplicity of Luhmann's sub-subsystems, with outcomes
"balanced between no longer and not yet,"103 and only tenuously linking
the future to decisions made today. The international law analyzed here is
the product of a social culture, and there are few interventions by a global
"State,"104 and Luhmann's growing differentiation
among global
subsystems means that law cannot be used to solve the political problems
that get relegated to particularly underdeveloped international subsystems.
103. LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9, at 66. See id. at 18, 27.
104. /d. at 67-68. See Vasquez, supra note 53, at 801-02. Of course, the General Assembly acts
like a U.S.-style legislature in some areas; the Security Council like a British-style parliament in
some areas; the Secretariat offers some bureaucratic backstopping, inefficiently according to most
observers; and the International Court of Justice tries to resolve some disputes, under a jurisdiction
to which the parties must consent in advance. This system is not terribly effective, and it is mostly
irrelevant to the three tracks under discussion.
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Wealthy and powerful businesses and nation-states easily manipulate
such negotiated legal orders, which require consensus to take effect. These
manipulations help to create a major source of dispute, such as a legal
uncertainty which is greater at the international level than in most nationstates. A good example is global investment disputes incompletely,
covered by an awkward jumble of business practices, customary
international law, General Assembly resolutions, proliferating bilateral
investment treaties, and World Bank facilities. Much of this "law" focuses
on the now-quite-rare issue of expropriation of the investment by usually
less-developed country hosting it. This "law" is motivated primarily by
political and economic power, like the bilateral trade and investment
treaties that the Bush Administration uses as weapons against terrorism,
leading to the many, manifestly unequal arrangements that poor countries
go along with because they desperately need Western investment. With
tiny elites creating rules along each track, decoupled from any popular
legal culture at the international level, questions arise of whose interests or
expectations the law serves, other than those of elites, and how this law can
be legitimated and deemed autonomous. Another, even less escapable
source of legal uncertainty is complexity itself. There are few "economies
of scale in a rule specific enough unambiguously to govern a decision; over
time, the increasingly-difficult question becomes which of these
proliferating specific rules resolves a particular dispute with some degree
of flexibility."105
As mentioned before, 106 this uncertainty and complexity are not merely
the products of international anarchy. A more nuanced view of governance
is required, such as a search for fairly stable "rules of the road" rather than
an automatic, Hobbesian recourse to coercion which is almost always too
costly these days, for a variety of reasons. The need for cooperation and
coordination, through a bargaining process, can be met without a
developed global state because the truly significant international "players"
are few in number. They are five, in fact, and those "players" constitute
what economists might call an "oligopoly."These "players"are the United
105. Andrew Guzman, Why WCs Sign Treaties that Hurt Them: Explaining the Popularity
of Bilateral Investment Treaties, 38 VA. J.INT'LL.639, 641, 644 (1998); Werner Hirsch, Reducing
Laws Uncertainty and Complexity, UCLAL.RE¥.1233(1974). See KING&THORNHIIL,supranote
8, id. at 252 (discussing Luhmann's analyses); id. at 285 ("awareness of complexity" eclipses the
claim that the problems of the world can be worked out logically or even theoretically."); id. at ("the
pressure for action often cuts short the search for knowledge short."); LUHMANN, OBSERVATIONS
ON MODERNITY, supra note 9, at 27, 67-68; Paul Blustein, U.S. Free Trade Deals Include Few
Muslim Countries, WASH. POST, Dec. 3, 2004, at El; NOBLES & SCHIFF, Introduction, in LAW AS A
SOCIAL SYSTEM, supra note 8, at 50; Exclusive, EcONOMIST, Nov. 20, 2004, at 78.
106. See supra text accompanying note 26.
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States, Russia, China, and the European Union and the United Nations
itself, when members coordinate their communications effectively. The
very existence of the game described later shows that, unlike the economy
or science, politics still recognizes and informally operates through the
nation-state boundaries defining the "players," through their sovereignty
that still proves necessary in international law and relations. The game is
thus one solution to economists' "collective action problems," and thus to
dealing with "free riders" and "holdouts" which are stimulated by the
existence of extremely high "transaction costs" in international relations,
yielding solutions too complex to be captured by simpler versions of
economists' game theory. 107
The global relations of the five major players play out against a
backdrop of what economists might call a "competitive fringe" for
example the many countries that are too relatively poor or powerless to
affect outcomes much overall. Their role is usually supportive of any
consensus among the five major players. This tactic avoids antagonizing
the majors and perhaps provoking their retaliation, and it gives the minor
players a sense of inclusion in international enterprises and a measure of
"soft" power gleaned from the interstices of these enterprises. Some of
these many countries have a situational or geographic power with regard
to particular issues, a power which forces the major players to take them
into account for some purposes, such as Saudi Arabia's funding of Islamic
fundamentalism in many countries or India and Pakistan in relation to
Kashmir.
107. Snidal, supra note 28, at 126-28. See JACKSON, supra note 2, at 149, 156; NOBlES &
SCHifF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 49 (discussing Luhmann's
ideas). On the five major players as an "oligopoly," see HERBERT HOVENKAMP, FEDERAL
ANTITRUST POUCY: THE LAW OF COMPETITION AND ITS PRACTICE 173-76 (2d ed. 1999); JAMES
KOCH, INDUSTRIAL ORGANIZATION AND PRICES 267-69, 327-33 (1974); ROGER MilLER,
lNTERMEDIATEMICROECONOMICS248-50,330,343-44,350-51,356(1976);JEFFPERLOFF&KLASS
VAN'T VELD, MODERN INDUSTRIAL ORGANIZATION 7-8, 125, 229N, 816-17 (2d ed. 1994); F.M.
SCHERER,INDUSTRIALMARKETSTRUCTUREANDECONOMICPERR>RMANCE 10,131-40,157,16670, 172-73,209-10, 316, 334-35, 443, 445, 466, 541 (1970). On the European Union as a major
player, see Morton Abrahamowitz & Heather Hurlbut, Where to Stan With Europe, WASH. POST,
Dec. 23, 2004, at A23 (reviewing TIMOTHY GoRTON ASH, AMERICA, EUROPE, AND THE SURPRISING
FuTURE OF THE WEST (2004) and T.R. Reid, The United States of Europe (2004)) (residual
affection, resilient interdependence, and furious passion of the trans-Atlantic relationship); id. (the
Europeans' "bickering and boredom" and anxiety over "feeling dwarfed by the U.S.
hyperpuissance."); id. (Ash shows how disunity is "one of the things we in the West have in
common."); id. (Ash shows how "building a future in defiance of the other-the Soviet Union in
the past, America today, perhaps Islam or China tomorrow - is neither sustainable nor
ennobling."); Editorial: Backward in China, WASH. POST, DEC. 20, 2004, at A22.
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A helpful, extended analogy illustrating this small group behavior has
us imagining the five majors playing a global poker game. 108 They have
played together for so long that each is aware of the past behavior patterns
of the others, although new player-representatives -Bush or Putin for
example -can disrupt the game. In particular, each player has views
about the strengths and weaknesses of its own play, and especially about
the reactions other players will have to its own projected actions
(perceptions based on asymmetries of information and understanding),
which in turn affects these actions. The barriers to becoming a major player
are huge, which is just the way incumbent major players want to keep it.
Such conditions hold sway even if other seats around the poker table (up
to a total of seven, say) are filled by temporary players, for example: Japan
and South Korea during negotiations with North Korea. The range of
feasible outcomes from any given hand is thus reduced markedly, but the
actual outcome is still indeterminate because knowledge is imperfect,
concerning who has which cards (or which "hole" cards, if stud poker is
being played).
The most important point is that the major poker players recognize their
interdependence, which makes the course of play less fun but more
predictable. Economists might call the major players' an "oligopolistic
interdependence," to reflect the absence of explicit collusion among the
major players. Each major player wants to "win" each hand for itself of
course with each major player defining what amounts to a win somewhat
differently, and each player being keen to avoid the huge costs of
monitoring the others' opportunistic defections from a more formal
"cartel." However, for the major players, more important than winning is
to not lose in certain ways like through war or some other painful (costly)
disaster, occurring through disruptions of, or a loss of authority. Major
players recognize the safest way to avoid a disaster while playing to win is
to play by "liberal internationalism" rules, for want of a better description,
for "advanced poker" or the anti-Hobbesian rules of the road. Ordinary
poker is a zero-sum game: winners benefit only at the expense of losers,
while (an imaginary) "advanced poker" can, rather than must, be played in
positive-sum ways. This means all or most major and minor players benefit
from a particular hand, through cooperation and coordination.
108. See KOCH, supra note 107, at 268-69; SCHERER, supra note 107, at 165. The ideal
analogy to oligopoly would: define the number of actors and account for procedures, asymmetries
(especially of information and a limited understanding of political and economic forces), the way
expectations are conveyed, an uncertainty of outcomes, and the managing of cooperation. See
JACKSON, supra note 2, at 18, 42, 156; Snidal, supra note 28, at 123-24. The poker game analogy
arguably satisfies these criteria.
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Economists increasingly understand how the repetition of such
cooperation, hand-by-hand in our poker analogy, breeds reciprocity and
trust over time. This is especially true when a "non-rival" good can be won
-your use of it does not interfere with my use-and reaches a peak over
"network effects" such as using Microsoft systems: the more who act in the
same way, the more useful the good becomes for everyone. 109
Such things as a body of rules in international law can thus be built up
through group cooperation over time, something no major player can do by
itself, through its domestic regulations. Multinational corporations and
other nongovernmental organizations like Greenpeace or Amnesty
International also play "advanced poker"at its fringes, strengthening global
cooperation for their own purposes. Even though processes may have an
opportunistic directionality, rounds or hands are usually played in cautious
and incremental ways. Effects are occasionally broad and deep over time,
but outcomes are more frequently halting and with some or much
backsliding, under what amounts to "rule of thumb" procedures. As
Luhmann suggests, planning or preventative action is largely impossible;
you must usually play the cards dealt you (in our analogy and in reality),
often under a short time horizon. Cooperation is never perfect, mistakes
happen, and rebelliousness occurs, especially among states taken for
granted because of their long record of cooperation. As a result, the major
or minor states sometimes prefer national interests (centrifugal aspirations)
over the liberal internationalist consensus. 110
A country can be called a "rogue" if it refuses to follow this consensus
over major issues and for an extended period of time. If a rogue is quite
poor and powerless, it is simply ignored -with disastrous human rights
consequences in Zimbabwe, for example. More powerful rogues get
109. SCHERER, supra note 107, at 135, 166, 443; Snidal, supra note 28, at 122-23; The
Economics of Sharing, EcONOMIST, Feb. 5, 2004, at 72. See KOCH, supra note 107, at 328 (in the
course of play, oligopolists "outline spheres of interest" which change over time); MillER, supra
note 107, at 343-44 (discussing George Stigler's implicit collision among oligopolists, because
explicit collusion is too costly); id. at 352 (price wars as evidence of temporary disruption of
communications channels among oligopolists); PERLOFF & VAN'T VElD, supra note 107, at 175,
229N, 816-17; SCHERER, supra note 107, at 443 (recognition among oligopolists that aggressive
actions provoke aggressive reactions, which leads to mutual restraint); Snidal, supra note 28, at 133
(need for cooperation and coordination through bargaining internationally).
110. SCHERER, supra note 107, at 166; WAI2ER, supra note 60, at 177, 170-81; Mead, supra
note 24, at 51; TuRNBUlL, supra note 9. See JACKSON, supra note 2, at 33 (discussing the tendency
to overlook GAlT obligations, especially when these are owed to the poor and powerless); id. at
42 (perfection cannot be expected among players with diverse interests); id. at 156 (the tactic of
erecting barriers which cost your opponents more than they do you); KOCH, supra note 107, at 350
(information about future states of the market is not free, and therefore neither are decisions about
what to do, so that most simply follow the behavior of the major players).
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disciplined by the major players if they can reach consensus over how to
do this: for example, North Korea, a proto-nuclear Iran or Sudan-a
chronically rights-abusing oil state. Almost always, a relatively poor and
powerless state is best advised to seek wealth and power by playing the
game in slightly different ways, creating a "niche" for itself (clever
advertising or a differentiated product are examples from the economics of
oligopoly), which will be tolerated by the major players because it does not
disrupt the overall game. 111 Singapore, for example, has become much
richer and somewhat more powerful in quite specialized ways. Yet
Singapore is tolerated by the majors because, as a city-state, it lacks the
capacity to become a major player -a capacity possessed by the India,
Brazil, and even Indonesia, countries that are thus watched carefully by the
incumbent majors.
The game totters along, minor rogues notwithstanding, but its
continuance is threatened - as are the disasters that liberal
internationalism rules are designed to avoid - when a major player
becomes a rogue. After all, the last bout of globalization ended when
unresolved political tensions among the then-majors and their satraps
exploded into World War I. As Luhmann puts it, even sophisticated
subsystems may be unable to block the causes of their own destruction.
The Bush Administration arguably turned the United States into a majorplayer rogue, by persisting in a refusal to play the game by liberal
internationalism rules, 112 and thus blunting the directionality of governance
111. KOCH, supra note 107, at 350; SCHERER, supra note 107, at 10, 209; Sebastian Mallaby,
Making Globalization Work, WASH. POST, Feb. 28, 2004, at Al7. See SCHERER, supra note 107,
at 209 (in an oligopolistic market, limited deviations operate to inhibit retaliation).
112. Bush the younger came as a shock to foreign leaders familiar with Bush the elder's and
Clinton's (admittedly rather tepid) liberal internationalism. Already in 2002, a career diplomat
resigning over the younger's foreign policies, John Brady Giesing, ably summarized the changes
taking place: "We are straining beyond its limits an international system we built with such toil and
treasure, a web of laws, treaties, organizations, and shared values that sets limits to our foes far
more effectively than it ever constrained America's ability to defend its interests." PAUL BRIETZKE,
SEPTEMBER 11 AND AMERICAN LAw (forthcoming 2007) (quoting Geising). In rapid succession, the
current Bush Administration repudiated the Kyoto Global Warming Treaty, the Nuclear Test-Ban
Treaty, and U.S. participation in the International Criminal Court; coercive "agreements" were
subsequently wrung from a number of minor players, to keep U.S. citizens out of this Court. The
United States even managed to lose its perennial seat on the U.N. Human Rights Commission, and
the invasive U.S.A. PATRIOT Act gave the United States a bad name among human rights
advocates because, e.g., it encouraged rights abusers. Common "anti-terrorism" cause was made
with dictators in Pakistan, Saudi Arabia, Egypt, and more reliable allies in "old" Europe were
ignored. Zbigniew Brzezinski attributes such strange policies to a blind fear that periodically verges
on panic. Wright, supra note 77 (quoting Brzezinski). See BRIETZKE, supra; CHUA, supra note 23,
at 8-9; Ellen Goodman, A Post-Bush Mind Set, WASH. POST, Oct. 30,2004, at Al9; GUEHENNO,
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without a government. Putin's Russia is also tending in this direction. 113
The Impact of Globalization on Strategy, in TuRBULENT PEACE, supra note 12, at 92. Having
reinvented the doctrine of pre-emption as a kind of anticipatory retaliation, Bush marketed Iraqi
War II as if it were a soft drink or toothpaste, adopting "Orwellian flourishes: in order to be
relevant," the U.N. Security Council (that was awaiting reports on weapons of mass destruction that
turned out to not be in Iraq) "must become irrelevant" by allowing "the U.S. to evaluate ... risk and
respond in its sole discretion." Michael Kinsley, By Whose Authority, WASH. POST, Mar. 21, 2003,
at A37. See GUEHENNO, The Impact of Globalization on Strategy, in TuRBULENT PEACE, supra note
12, at 90; Lazare, supra note 22, at 36. As always, the devil is in the details and, as this Essay is
being written, the Bush Administration raised (and then fortunately dropped) an antiabortion
initiative at a U.N. women's conference. Then, the Administration withdrew from the Optional
Protocol to the Vienna Convention on Consular Relations, which was originally proposed by the
United States in 1963. This will almost certainly limit the access of U.S. citizens abroad to U.S.
consular officials. It results from a 2004 International Court of Justice ruling that the United States
violated this Protocol by denying access to Mexican consular officials for fifty-one Mexicans on
death row in Texas. This added fuel to foreigners' fires over the death penalty (and over detention
and torture at Guantanamo and Abu Ghraib). Next, Bush shocked even his cynical critics by
appointing the abrasive John Bolton as U.N. Ambassador because, apparently, Secretary of State
Rice did not want him as her Deputy. Bolton is a darling of the neoconservatives who would
dissolve the United Nations, and whose influence over foreign policy is an increasingly permanent
factor in the United States. Bolton led the U.S. repudiation of several treaties, alienated North
Korea (an easy thing to do, perhaps) and opposes European Union efforts to curb Iran's nuclear
ambitions. He calls the United Nations a "rusting hulk,"opposes its peacekeeping and humanitarian
missions, and denies that the United States has a legal obligation to pay U.N. dues. Bush nominated
another neoconservative icon, Paul Wolfowitz, as the new World Bank President. Diplomat and a
senior Defense Department official, Wolfowitz is a major architect of Iraqi War II. Glenn Kessler
& Colum Lynch, Critic of U.N. Named Envoy, WASH. POST, Mar. 8, 2005, at AI; Charles Lane,
Mexicans on Death Row Get Hearings, WASH. POST, Mar. 8, 2005, at A2; Charles Lane, U.S. Quits
Pact Used in Capital Cases, WASH. POST, Mar. 10, 2005, at AI; Colum Lynch, U.S. Drops
Abortion Issue at U.N. Conference, WASH. POST, Mar. 5, 2005, at Al3; Brian McNamara, Letter
to the Editor, WASH. POST, Mar. 13, 2005, at B6 (by a retired U.S. consular official); Susan Rice,
Tough Love or Tough Luck, WASH. POST, Mar. 8, 2005, at Al5; Ian Williams, Real U.N. Reform,
NATION, Dec. 27, 2004, at 6; The View From Abroad, ECONOMIST, Feb. 19, 2005, at 24 (a Special
Report on Anti-Americanism). Neoconservatives see Europeans as "a bunch of duplicatous,
atheistic wimps, whose moral laxity is leading them to an inevitable and richly deserved doom." The
European Dreamers, EcONOMIST, Dec. 18, 2004, at 78. In sum, the Bush Administration continues
to fuel nationalist claims hostile to U.S. interests, and repudiates or ignores key international law
principles. With little justification, neoconservatives take credit for the democracy difficult to detect
in the Middle East.
113. Outsiders understand little about Russia: e.g., having exaggerated the extent to which
Yeltsin established liberal democracy, they exaggerate the extent ofPutin's backpeddling towards
authoritarianism. Admittedly, he has fought a brutal, human-rights-abusing war against nationalists
in Chechniya (a separatist province), justifying this as a move against ''terrorism"-the same
justification Bush uses in Iraq. Russia's political meddling in Belorus, Georgia, Moldova, Abkashia
(a province in Georgia), and Trans-Dniester (a separatist region of Moldova) will almost certainly
continue. But the ex-Soviet Muslim "-stans" are slowly drifting out of the Russian orbit while
adopting a variety of anti-democratic practices, the Baltic countries are already in NATO, and the
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Many leaders in the European Union are appalled, the Chinese seem
Transcaucasian region is unstable and bloody -because local rulers pursue ethnic nationalism
claims. Rachel Denber, Beyond Ukraine, INT'L HERALD TRIB., Dec. 28, 2004, available at
http://hrw.org/English/docs/2004/12/29/uzbeki9941.htm (last visited July 19, 2005); Jackson Diehl,
Russia's Unchecked Ambitions, WASH. POST, Dec. 6, 2004, at A21; Peter Finn, Krygystan
Opposition Routed at Polls, Process Faulted, WASH. POST, Mar. 15, 2005, at Al7; Charles
Krauthammer, Why Only in Ukraine?, WASH. POST, Dec. 3, 2004, at A27; Michael McFaul, Reform
and Retreat, WASH. POST, Feb. 6, 2005, at T08; Bleak House, ECONOMIST, Jan. 15, 2005, at 80;
An Empire's Fraying Edge, EcONOMIST, Feb. 12, 2005, at 21; Vladimir Ill, EcONOMIST, Dec. II,
2004, at 46. The elections in Ukraine were most interesting in this regard. Putin's interventions
were blatant and clumsy, involving personal appearances and a conniving in electoral fraud. In
contrast, U.S. (and some EU) interferences were subtle and sophisticated. U.S.A.I.D. and
government-related NGOs funded opposition web sites, other media outlets, marketing advice,
election monitors, the exit polls that helped to fuel demonstrations (which, in turn, prompted
mutinies among the police and military), and contacts with opposition forces from Slovakia,
Romania, Croatia, and Serbia. None of this would have worked if conditions were not ripe,
however; somewhat similar efforts in Iran were largely unsuccessful. These and other actions within
what Russians regard as their traditional sphere of influence led to Putin's sharp criticism of U.S.,
EU, and OSCE "interference." Roya Hakakian, Revolution Redux, WASH. PosT, Dec. 20, 2004, at
A23; Michael McFaul, 'Meddling' in Ukraine, WASH. POST Dec. 21, 2004, at A25; Jonathan Steele,
Ukraine's Untold Story, NATION, Dec. 20, 2004, at 4 (a revision of Steele's GUARDIAN article);
Russian Roulette, EcoNOMIST, Dec. 4, 2004, at 10. As an expert on the Russian economy, Marshall
Goldman, puts it, "Putin's reassertion of state control over more and more of the economy
combined with his radical reversal of many ... political reforms is ominous" and sows "the seeds
of future recriminations and turmoil." Marshall Goldman, Putin, the Oligarch and the End of
Political Liberalization, 2 ECONOMIST'S VOICE (2004). The independence of the media and other
checks and balances have been curbed, dissidents have been jailed, and the role of the FSB (the
KGB's successor) is expanding. The re-nationalizing of state enterprises privatized during the
1980s, a tactic which gave rise to the "oligarchs"of a "state" or "crony"capitalism, proceeds apace.
Foreign investors believe that the centerpiece of this effort -the forced auction of the major oil
producer Yukos for the ostensible nonpayment of taxes, the only buyer being a funnel for a state
enterprise-will happen again. Diehl, supra; Fred Hiatt, Russian Motives, WASH. POST, Dec. 13,
2004, at A21; McFaul, 'Meddling' in Ukraine, supra; Vladimir Ill, supra. There are many
characterizations· of Putin; some of the better ones are "an odd combination of volativity and
inertia" and a "soft authoritarianism" replacing the "guided democracy"familiar to observers of the
Third World-of e.g., Sukarno's Indonesia./d.; Masha Lipman, Putin's Harder Edge, WASH.
POST, Jan. 18, 2005, at Al7. Its pro-Americanism notwithstanding, Ukraine withdrew its 1600
troops from Iraq in mid-2005. Putin's ratification of the Kyoto Climate Change Treaty guaranteed
that it would take effect, the Bush Administration's withdrawal notwithstanding. Putin has made
clear that he will sell weapons to countries the United States dislikes, Syria for example, and he will
supply uranium to fuel Iran's nuclear ambitions.His fears of American "mischief' are at least partly
rational, and they perhaps anticipate an encirclement by hostile countries, reminiscent of George
Kennon's Cold War "containment" policy. Anne Applebaum, Russia's Last Stand, WASH. POST,
Dec. 15, 2004, at A33; David Ignatius, A Climate of Disdain, WASH. POST, Feb. 9, 2005, at A23;
Vladimir Isachenkov, Russia Said to Sign Weapons Deal with U.S., Feb. 8, 2005; Jackie Spinner,
Ukraine Announces Pullout of Iraq Force, WASH. POST, Jan. 11, 2005, at Al2; Russian Fuel,
European Carrot, American Stick, EcONOMIST, Feb. 26, 2005, at 43.
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bemused and are perhaps positioning themselves to take advantage of any
future chaos, and a few commentators saw Ukraine demonstrations and
elections as the kick-off of a new Cold War. 114 Many minor players are
seeking cover because they fear the onset of disasters and reallocations of
power that the disruptions in our poker game make more likely.
Not yet a disaster, disruptions in this governance without government
poker game are also disruptions in Luhmann's (and economists')
expectations. Self-fulfilling prophecies of a lack of cooperation can lead
to a potentially dangerous level of instability, and to even greater
uncertainty and complexity. But the game has been running for a long time
within consensus borders, and most nation-states have buffers against
threatened international instabilities.These buffers may prove effective for
a long enough period -until Bush and perhaps Putin leave office for
example. Increasingly dense clusters of laws, relations, and a few
institutions mitigate anarchy in the areas under analysis, forming low-lying
islands (prone to flooding like the Seychelles, perhaps) in the ocean of
international relations. Caution, retrenchment, and repair of liberal
internationalism, a ruling by cooler heads, are obviously called for.
Yet even during such difficult times, at least four categories of change
can move forward toward the development of international law. These are
discussed here in ascending order of complexity and of departure from the
poker game analogy: a more formal constitutionalization, a related
democratization, an integration of several or many of the international law
tracks, and the formalized checks and balances that an enhanced
integration makes possible and desirable. Luhmann argues the
impossibility of the players agreeing and then implementing overarching
international reforms.115 There is force in his arguments but, as Robert
Samuelson reminds us, "reform"is "a public relations tool-a convenient
114. Stephen Cohen, The Media's New Cold War, NATION, Jan. 31,2005, at 18 (citing Anne
Applebaum, William Kristol and Washington Post editorials as discussing a revived Cold War). See
Don Blumental, Unhelpful China, WASH. POST, Dec. 6, 2004, at A21 (treated by the United States
to a traditional "engagement" policy, in an effort to maximize common interests, China behaves like
a strategic competitor -as our poker game analogy suggests, we would add); id. (instead of
displaying a shared interest in reducing nuclear proliferation, China tries to act as an honest broker
by treating the United States and North Korea as equally to blame for the standoff); id. (desperately
in need of oil, China trades with Iran and trades with and invests in Sudan-which it will shield
by vetoing Security Council sanctions over human rights abuses in Darfur).
115. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 74. See JACKSON, supra note 2,
at 135; WALZER, supra note 60, at 186-89; NOBlES & SCHIFF, Introduction, in LAW AS A SOCIAL
SYSTEM, supra note 8, at 17 (discussing Luhmann's ideas); Snidal, supra note 28, at 125, 133.
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label ... slap[ped] on ... proposals to claim the high moral ground."116
Debates should focus on the principles and practicality of proposed
changes, rather than on reform labels.
Formal constitutionalization carries the obvious costs of forming a
consensus over the new rules, which depart from the ordinary poker game
by expanding upon liberal internationalism rules. Fundamental changes
now seem to be occurring in this game anyway, and this may make
consensus easier to form. But the process is likely to be slow, incremental,
and opportunistic -with particular rules created quickly because their
time seems to have come. It is difficult to amend existing treaties, so the
constitutionalizing tendency would be to draft new treaties, ideally with
attention to improving cooperation, coordination, consistency, coherence,
and the fairness of outcomes along the way. An exception to this process,
which was used to create international human rights for example, is the
periodic renegotiation of the same GATT Treaty, culminating in the WTO
while remaining a work in progress. Such successive sets of consensus
over huge packages of proposals would reward careful study as an efficient
and effective means of constitutionalization where it can be copied,
although it seems to have run aground during the current, Doha Round of
WTO negotiations. 117
By either route, through new treaties or modifying an old one, the goal
should be creating channels of communication which are broader and more
open, so that information flows more widely to players in various
subsystems and to the public, and rapid global changes can be embodied
in legal changes more accurately. New opportunities for mediation and
consensus should emerge accordingly. While the current game of ordinary
poker works, it does so rather crudely. For example, adding escape clauses
to treaties judiciously, and new means of buffering conflicts widely, will
reduce tensions among the players -where differences among them are
based on religion, for example. Stability should be maximized through a
better management of complexity, especially by developing the means of
turning dangers into risks and then for countering, neutralizing, evading or
116. Robert Samuelson, Seduced by 'Reform,' WASH. POST, June 2, 2004, at A25
(emphasizing adverse side effects-as Luhmann does). See id. (self-labeled refonners "aim to
stigmatize adversaries as nasty, wrongheaded, selfish or misinformed" - tactics used by
nationalists, anti-globalizers and their opponents, we might add).
117. See JACKSON, supra note 2, at 120-21, 216, 350, 355, 365, 445-46; KING& THORNHllL,
supra note 8, at 87 (discussing Luhmann's ideas); LUHMANN,LAw AS A SociALSYSTEM, supra note
8, at 406, 468.
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delaying these risks; in other words, trying to save ourselves from bad
outcomes. 118
Constitutionalization should draw firm differentiations between
political and economic subsystems, by defining what is and is not politics,
so as to reduce the cumulative influences of wealth and power on
international law. This is a difficult task because wealth and power are so
widely useful and readily interchangeable. For example, the Renaissance
Florentine Medici motto (loosely translated) was to use wealth to gain
power and to then use power to protect the wealth. Differentiations
between economics and politics also create additional means to the better
management of complexity, by depoliticizing decisions once they are taken
and given legal form, and by creating more incentives for legalism (a more
autonomous law operating to determining what law is), while paying a
somewhat reduced deference to international power configurations. Serious
thought should also be given to constitutionalizing a modest, carefullystructured global legislative power, perhaps centralized in a World Law
Commission. Such a power could be used to create innovations that need
no longer be justified as questionable re-interpretations of treaty provisos,
thus enhancing the responsiveness and even the democratization oflaw.
Finally, and probably most controversially from the standpoint of
achieving consensus, a global constitutionalization should clarify how and
why intrusions into national and local concerns need to occur (along with
narrow "escape clause" procedures for granting exceptions and waivers),
so as to not store up trouble for the future. 119
Another modification which can accompany constitutionalization is a
global democratization which promotes inclusion, participation and, less
directly, transparency, accountability, and distinctive and powerful sources
oflegitimacy-if not predictability, reliability, uniformity, or impartiality.
If international democratization succeeds, it would likely unfold in slow,
incremental ways. For example, public "audits" along the tracks of
international law have already been set in motion by NGO activists, as
have attempts to mobilize segments of the global public, like the poor and
powerless for example, in opposition to economic globalization and in
118. See JACKSON, supra note 2, at 459; KING & THORNHIU., supra note 8, at 86, 109
(discussing Luhmann's ideas); TuRNBUlL, supra note 9.
119. JACKSON, supra note 2, at 465 (an "interface" with domestic constitutions needed
especially over the international influence domestic interest groups are to have); KING &
THORNHilL, supra note 8, at 27, 40, 87, 109, 175 (discussing Luhmann's ideas); LUHMANN, LAW
AS A SociAL SYSTEM, supra note 8, at 265 (the test of power should be replaced by self-regulating
proceedings which unfold internally); id. (exception to this seen as emergency and self-defense
Jaws); NOBLES& ScHIFF, Introduction, in LAW ASASOCIALSYSTEM, supra note 8, at 26 (decrease
the incidence of ad hoc or ad hominem applications of Jaw); id. at 27, 40, 42.
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support of sensible development initiatives. Democratization faces more
serious potential opposition than does constitutionalization, from the major
players that deem unaccountable power and an ordinary poker game-like
secrecy essential to pursuing their elaborate strategies. For these same
reasons, the collectively quite powerful minor players, NGOs, and antiglobalizers should support democratization as a partial equalizer for the
major players' wealth and power. 120
Democratization would thus reduce segmentation in Luhmann's
subsystems, reduce their differentiation by wealth and power which he
often neglects (but which echo conditions in the pre-modem feudal and
aristocratic societies that he does analyze), and create a better balance in
reciprocal relations internationally. Legal enforcement would then depend
less on who the participants are, and democratization would further
differentiate economic from political subsystems, in a manner similar to a
process which began in developed countries late in the eighteenth century.
Based on that experience, a democratized global public would slowly come
to tolerate only a certain level of governance by wealthy and powerful
elites, as that public slowly develops confidence in those elites' ability to
respond to some communications democratically. Political development,
and thus a more reliable enforcement of legal decisions, would follow
eventually, as in the developed countries once again. Corridors of contact
and integration would expand greatly, inclusion/ exclusion being a metadistinction within and among all of Luhmann's subsystems.121
As an illustration, the effect of an international democratization on
human rights is likely to be ambiguous-at least initially. While a broadscale and democratic standing up for one's rights helps to develop
subsystems further, and to expand a popular legal culture in particular:
consider the effects of the 1960s' civil rights movement on life and law in
the United States. The putative universality of human rights would then
suffer from the influx of many new players, claiming new kinds of rights.
But universality is (only) one legitimating principle for human rights, and
we can imagine a much more powerful, democratic source for human
rights legitimacy growing up over time. In human rights and along many
other international law tracks, democratization may result in a growing gap
between a greater number of public demands and the subsystems' ability
to satisfy them. Luhmann would tum such a concern into a question about
120. See JACKSON, supra note 2, at216; LUHMANN, LAW ASASOClALSYSTEM, supra note 8,
at 304, 347; WAIZER, supra note 60, at 180-81.
121. See KING & THORNHilL, supra note 8, at 83, 488-89 (discussing Luhmann's ideas);
Luhmann, LAW AS A SOCiAL SYSTEM, supra note 8, at 386-88; NOBLES & SCHIFF, Introduction, in
LAW AS A SOCiAL SYSTEM, supra note 8, at 252 (discussing Luhmann's ideas).
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whether the right kinds of communications for comprehension (education)
can deal with increases in disappointed expectations and with the limited
capacity of subsystems in the face of uncertainty and complexity. 122
Thomas Barnett imagines a "Functioning Core" of prospering nationstates connected to the global economy, and a "Non-Integrating Gap" of
nation-states excluded or self-excluded from the matrix of wealth and
progress, and thus perhaps spinning toward chaos. The problem here is not
religion or geography but disconnection and, for Barnett, the solution is to
devise rules which encourage connection and thus discourage an alienated
rage. 123 The World Wide Web offers a model of such coherent connections:
a few rules which (almost) all can support because they permit diverse
content, and few nodes but many links which can be "Googled" to solve
legal and other subsystem problems. John Jackson offers one legal frame
for such a model. He puts forward "plurilateral" agreements (covering
some but not all nation-states) which integrate economic globalization and
environmental concerns as an example. 124 ·Similar agreements could
integrate globalization and human rights (other than those relating to the
environment), and which integrate self-determination with other human
rights. With advocacy from NGOs (a category which includes
multinational corporations), such agreements could form the base of a
pyramid of an international law among the willing, with increasingly
general integrations at the higher levels. But this technique is open to the
criticism that it reverts to the "a Ia carte"international law that multilateral
agreements are designed to avoid. It is unlikely that such plurilateral
agreements would ever create a customary international law.
A full-scale integration of international law tracks, such as the three
surveyed here, is markedly more difficult than constitutionalization and
even democratization. While there would be significant rewards, in terms
of definitively resolving the conflicts discussed earlier, 125 the tracks we
surveyed display an exceedingly uneven development in substantive rules,
procedures, and enforcement prospects. Such unevenness makes
integration more difficult: a process more difficult still if Luhmann is
122. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 472, 474; LUHMANN,
OBSERVATIONS ON MODERNITY, supra note 9, at 98. See KING & THORNHilL, supra note 8, at 69
(discussing Luhmann's ideas); WAIZER, supra note 60, at 190; NOBLES & ScHIFF, Introduction, in
LAW AS A SOCIAL SYSTEM, supra note 8, at 50 (discussing Luhmann's ideas).
123. David Ignatius, Winning a War for the Disconnected, WASH. POST, Dec. 14, 2004, at A27
(discussing Barnett's ideas). These ideas are designed as a policy strategy for the Pentagon, but they
can be internationalized and made more neutral.
124. JACKSON, supra note 2, at 412. See Vasquez, supra note 53, at 831 (agreements could
permit but not require states to impose trade sanctions for human rights violations).
125. See supra text accompanying notes 101-02.
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correct, modernization requires differentiation, and modernizing functions
growing apart along the various tracks of international law may become
more difficult to put back together as time goes by. The United Nations
and its many coordinated organizations could stimulate integration efforts,
if these organs were not so preoccupied with the peacekeeping and
humanitarian efforts that sometimes create serious disruptions among the
major players. 126 While some measure of temporary and ad hoc integration
is possible, and even likely, a more significant integration is thus unlikely
in the absence of a powerful specialist organization like a Global Law
Organization (GLO). Ideally, this GLO would be akin to a treaty-based
WTO, to manage trade in law: in constitutionalization, democratization,
and the creation of checks and balances as well.
A fair number of informal checks and balances already exist along the
three tracks we surveyed. Should additional and more formal separations
and checks be created, at substantial costs in procuring consensus,
especially if these new devices might weaken important processes which
are already rather weak? Things are unlikely to "get out of hand" in the
foreseeable future, except in the opinions of those who dislike particular
international decisions. International law already operates as a buffer and
a modest check on wealth and power. It offers the means of settling
disputes peacefully, screens out some abusive arguments, generally
promotes cooperation, and (to a modest extent) restrains raw power that
comes from political and military subsystems. These and other subsystems
are interdependent in complex ways, reacting to each others' stimuli and
altering them in the process. Law alters such stimuli while framing
manageable and universally-meaningful rules, as constrained by
preexisting rights and duties. Private (especially corporate and NGO)
interests also help to channel and condition the ways stimuli are converted
into law. 127
Arguably, the most important check, one which might be improved
upon, is the "federalism" of nation-states operating in the global arena,
especially through the veto over implementing particular programs that
major players possess much of the time (unless one or more of them
chooses to play the "rogue"). To the extent that nation-state policies are
indeed devised in democratic ways, this lends a measure of indirect
126. See LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 386; WAl.ZER, supra note 60,
at 185; NOBLES & SCHIFF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 29
(discussing Luhmann's ideas).
127. See JACKSON,supra note 2, at454; KING&THORNHILL,supra note 8, at 107-08, 112, 115
(discussing Luhmann's ideas); NOBLES &SCHIFF, Introduction,in LAW ASASOCIALSYSTEM, supra
note 8, at 33 (discussing Luhmann's ideas).
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democracy to international processes. States have reserved a measure of
sovereignty precisely for influencing global affairs. But if this reservation
is not spelled out in international law, the realities of sovereignty create
additional uncertainties over where power and competence lie.128 Ideally,
under "subsidiarity" principles, matters for international action are only
those which many nation-states cannot or will not take for themselves:
"externalities" to these states, in other words. Michael Walzer imagines an
international future of a federation of nation-states, perhaps working on
externalities in the constitutionalized and integrated ways that may prove
difficult to create, and in "pluralistic" and mediating ways which limit but
do not destroy sovereignty. Individuals, NGOs, states, and international
organizations could then apply to a court or agency for redress of
grievances. Such a combination of centralization and decentralization
would better manage complexity, the flows of huge quantities of
information (Luhmann's communications), and the bounded rationality
that often makes the "big picture" elusive. Perhaps the most important
global separation of powers, which should be created explicitly, lies
between politics and modest levels of global administration that have
largely avoided accountability for its actions.129
VII. WORKS IN PROGRESS
Since the end of the Cold War, the most important global developments
have occurred in the area of culture, rather than ideologies, politics, or even
economics. Luhmann, one of the most capable analysts of these cultural
developments, argues that as much as "we fight against the contingency of
our own, as well as others', actions," everything depends on everything
else. These developments are too complex to understand completely,
channeled as they are through interdependent global sub-subsystems
operating under a great deal of stress.130 This Essay has been no less
complex than the global phenomena it tries to describe. Luhmann may be
too pessimistic, however. Coercion and violence on ethnic, religious or
128. See JACKSON, supra note 2, at 275,411-12,423.
129. ld. at 275, 411-12,423.
130. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 473-75, 490; LUHMANN,
OBSERVATIONS ON MODERNITY, supra note 9, at 62; STOILOV, Are Human Rights Universal?, in
HUMAN RIGIITS IN PHILOSOPHY AND PRACTICE, supra note 31, at 100-02. See LUHMANN,
OBSERVATIONS ON MODERNITY, supra note 9, at ix (stressing the "postmodem" loss of confidence
because there is no correct, objective way of facing the future); NOBLES & SCHIFF, Introduction, in
LAW AS A SociAL SYSTEM, supra note 8, at 46 (discussing Luhmann's ideas).
2005]
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other political grounds is progressively more difficult to justify and is
accordingly somewhat reduced. International sources of legitimacy grow
slowly; using them actively, to create an enhanced capability for
individuals and groups alike is now possible. The inescapable lesson of
self-determination is that everyone needs meaningful access to the
economy, the government, and the court system. This access should be
available, at least until Eurocentric notions about using law to determine
which interests are legitimate enough to prevail get supplanted by some
other device. 131
Currently, Andreas Lowenfeld notes, "nothing is permanent except
change,"132 but most of international law is already followed by a majority
of countries, most of the time.133 Consistent compliance with an enhanced
human capability or any other legal goal is unrealistic. No amount of
change in international law and culture will improve the less-than-perfect
political will to comply. Nonetheless, significant and meaningful work has
already been done under the harsh conditions of global governance without
global government. As Luhmann concludes, it is "not ridiculous" to adopt
a "Stoic attitude" and "stay at the [law] job," re-defining it in a more
integrated fashion so that a community of beliefs in human dignity,
autonomy, and choice can be addressed within participating global
organizations.134 1f his Stoics can also be pragmatists, then this job can be
accomplished while we learn to live with the legal failures that guide us to
expect only small "evolutions" in law and culture, "evolutions" that flow
from a plethora of disappointed expectations.
131. NOBlES & SCHifF, Introduction,in LAW AS A SociALSYSTEM, supra note 8, at 50-51. See
KING & THORNHilL, supra note 8, at 48; infra text accompanying note 134. "Capability"is also the
developmental goal of Amartya Sen and Martha Nussbaum. See, e.g., AMARTYA SEN, FREEDOM AS
DEVELOPMENT (2002).
132. LoWENFELD, supra note 12, at 43 (paraphrasing Heraclitus).
133. /d. at 148.
134. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 137. See BEYER, supra note 5, at
72; id. at 77 (these are prime structural features which are conducive to institutionalization);
Cotterrell, Law in Culture, supra note 5, at 11.
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