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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.

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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 thelegal 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 ExacerbatingPolitical Conflict, 14 Wrs.INT'LL.J. 69 (1995).

2. JOHN HowARD JACKSON, THE JURISPRUDENCE OF GATI AND THE WTO: INSIGHTS ON TREATY LAW AND ECONOMIC RELATIONS 3 (2000); SHEU.EY WRIGHT, INTERNATIONAL HUMAN RIGHTS, DECOLONIZATION & GLOBALISATION: BECOMING HUMAN 22-23 (2001) (It is as if the international law of human rights and the international law of globalization and development have been progressing within parallel universes, "but there are signs that the separations of economic thinking and human rights may be diminishing.").

3. E.g., JOSEPHSTIGUTZ,GLOBALIZATION&ITSDISCONTENTS20(2002)("globalization ... is neither good nor bad.It has the power to do enormous good," but it creates few benefits for many countries and has been an "unmitigated disaster" in some countries); Sundhya Pahuja, This is the World: Have Faith, 15 ENT. J.INT'LL. 381, 385-86 (2002) (like other "good"things, human rights can be abused, manipulated, or distorted). See infra text accompanying notes 97-100.

4. See infra text accompanying notes 102-29.

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The nature of "cultures,"5 and the influences they exert on legal processes, are probably the most contentious issues in legal sociology and anthropology.6 Cultural projections, such as values and ideas shaped by media groups, interest groups, national and international agencies, and laws, present a public self-image and comprehension that differs from

5. E.g., PETER BEYER, REUGION &GWBALIZATION 1-2 (1994) (increasingly dense links of worldwide communication make contact and culture clash almost unavoidable, while providing a common context); ROGER COTIERREIL, The Concept of Legal Culture, in COMPARING LEGAL CULTURES 13 (David Nelken ed., 1997) (Lawrence Friedman's definitions have changed over twenty-five years-public knowledge, attitudes and behavior toward law, organically related to culture as a whole; then, those parts of general culture that bend social forces toward or away from law; and later eliminating behavioral and stressing ideational elements); id. at 19 (in Friedman's LEGAL SYSTEM interests, mediated by general culture, create the demands that, lead to legal acts but "real people . . . are at work"); id. (along with factors like the distribution of influence and power, legal culture influences the pace of demands and solutions, and also legal structures); id. at20 (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, 20ANN. 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 note5, 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'sSystems 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 (discussingLuhmann's "social theory of social theories," his attempt to avoid simplified or reductionist accounts); id. at 126 (Luhmann's seems a nonprescriptive account of politics); Measuring Globalization, FOREIGN POL'Y, Mar./Apr. 2004, at 54 (discussing an A.T. Kearney and Carnegie Endowment Study). See KING&THORNHIIL,supra note 8, at 116 (Luhmann prefers the "law state over the welfare state," and seeks to rid the latter of "unnecessary legal authority."); NIKLAS LUHMANN, 0BSERVATIONS ON MODERNITY 75-76 (1998) (we continue to exist only on the basis of communication, trying to save ourselves from the bad things); id. at 85 (citing Anthony Giddens) (telecommunications create an almost total uncoupling of time and space, as the imaginable world expands immensely; LUHMANN, Society and Its Law, in LAW AS A SociAL SYSTEM, supra note 8, at 465 (communications "only prepare the conditions for the continuation of system operations."); id. at 467 n.l4 (law makes expectation formation possible); XIARONGLI, "Asian Values" and the Universality of Human Rights,in THEPHILOSOPHYOFHUMANR1GHTS397,401(Patrick Hardened.,2001) (improvements in communication and literacy make information about repression and injustice more accessible); NOBLES & SCHifF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 48; id. at 49 (while economics and science recognize no natural boundaries, politics is less developed and operates primarily through nation-states and secondarily through regional structures); WALLACE PROVOST, COMPLEX ORGANIZATIONS & NIKLAS LUHMANN'S SOCIOLOGY OF LAW: THE WORLD AS A SociALSYSTEM (2004) (for Luhmann one world "integrates all ... horizons as one communicative system,"including all possibilities); id. (communications must be meaningful within a subsystem, in order to count); Simon Roberts, After Government? On Representing Law Without the State, 68 Moo. L.REv. 1, 1 (2005) (an anthropological discussion of global "negotiated orders," which are significantly different from state law); SHAWN TURNBUlL, EMERGENCE OF A GLOBAL BRAIN: FOR AND FROM WORLD GoVERNANCE (2005) (analyses analogous to Luhmann's, based on cybernetics and game theory); id. (the need to economize on information and based on the "governance of nature"-decentralization, pluralism, and associative relations, based on "holons"- each virtually self-governing and with its own processing and autonomy); Babel Runs

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Luhmann's focus is on global cultures as an almost incidental consequence of modernization, through a functional differentiation of society, which displaced its stratified (class-based) differentiation that operated through dominance, and center-periphery relations. The United Nations measures modernization on the basis of health, literacy, access to education, and earned income. Consequently, the United Nations finds that women tend to be better off under such criteria in more globally-integrated countries. But, relatively globalized countries often fare poorly under such criteria if they are vulnerable to external shocks (i.e., Iran and Venezuela are dependent on the erratic oil rnarket.)10

The functional (relatively egalitarian and autonomous) subsystems that emerge during modernization - legal, political, military, economic, religious, educational, family (where the relevant communications sometimes express love), scientific, ecological, health care, and artistic - that generate such specialized cultural changes as adaptations to surprises and especially to disappointed expectations within a subsystem. Often, failed expectations strengthen pressures for legal reform-usually partial and gradual, for compensation in lieu of change, for punishment when change is sought without following approved legal procedures and reasoning, or for an uncertainty of expectations. While law contributes to an international social order-and to economics, politics, and the military functioning in particular ways, it not only accommodates changes but depends on them for improved operations and for helping global society to understand itself.

Principles are evaluated on whether they meet (disappointed) expectations, rather than on the quality of a legal argumentation, which can also be used to justify contrary outcomes. For Luhmann, international law

Backwards, ECONOMIST,Jan. 1, 2005, at 62 (thanks to globalization, there is an accelerated attrition of languages in favor of a "dominant" English, Spanish, and Chinese).

10. Measuring Globalization, supra note 9, at 64, 67; see LUHMANN, OBSERVATIONS ON MODERNITY,supra note 9, at 85 ("communication has increased in volume, complexity, memory, and pace."); id. at 255 (either the legal system remains stable, applying existing rules again and again, or tensions from outside law create a higher complexity by distinguishing, overruling, or creating exceptions-resulting in problems of are-stabilization); Niklas Luhmann, The World Society as a Social System, 81NT'LJ. Soc. SYS. 131, 132 (1982) [hereinafter Luhmann, The World Society] (contrasting his subsystems with stratified social ranks and the creation of"high"cultures); id. at 133 (functionally-differentiated subsystems depend on a high degree of self-regulation); id. (functional differentiation arose because, in eighteenth-century Europe, identity and order problems could not be solved by older stratification processes); id. (this prompted the first waves of "self observation" -of law based on law, of education based on education); WllllAMS, Culture & Civilization, in ENCYCLOPEDIA OF PHILOSOPHY, supra note 5, at 273 (culture as new ways of thinking about the large changes occurring in eighteenth and nineteenth century Europe).

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could always have evolved (by responding to "irritants") differently, and change does not necessarily move in progressive or efficient directions. Countries and international processes frequently develop unevenly, with plenty of backsliding on the road to modernization. 11

A bewildering variety of global communications creates an overabundance of possibilities for social action, of choice in other words. This abundant choice is a double-edged sword. The future becomes difficult to predict and interacting complexities cause individuals, groups, states, or international organizations frequently to lose control over outcomes. The overall result is a complex global network of meaning. For example, some years ago, a family in Botswana watching the O.J. Simpson trial on their Japanese television understood that distinctively legal events were being communicated. Of course, legal actors also communicate by nonlegal means, and their communications form part of the "environment"

11. K!NG&THORNHIIL,supra note 8, at 34, 47, 55, 57, 159, 212; LUHMANN, OBSERVATIONSONMODERNITY,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 note8, 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).


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, at44, 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, at273 (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 thepoor 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 realitybefore the term became fashionable.2° Consequently, the strategic realitymay be that globalization's current economic guise reflects a novel strategywhich usually operates without the active involvement of the militarysubsystem.

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 onStrategy, in TuRBULENT PEACE, supra note 12, at 83. See BEYER, at 22 (discussing John Meyer's arguments); GUEHENNO, The Impact of Globalization on Strategy, in TuRBULENT PEACE, supra note 12, at 90-91 (America's globalization strategy may be nothing more than a series of successful tactics -a "style" rather than a "program").

21. JACKSON, supra note 2, at 4; KING & THORNHILL, supra note 8, at 83-84; LUHMANN, LAW

AS A SOCIAL SYSTEM, supra note 8, at 271; FRANCESCA BIGIONI, CREATING RIGHTS IN THE AGE OF GLOBAL GoVERNANCE: MENTAL MAPS AND STRATEGIC INTERESTS IN EUROPE (2004); NOBLES & SCHIFF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 16. See LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 8, at 489 (the advantages of inclusion are upward mobility and a better career); LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9, at 99 ("esteem"as "an indicator" of ... "inclusion"); NOBLES & SCHIFF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 50 (inclusion/exclusion is a meta-distinction common to all subsystems). But see also KING & THORNHilL, supra note 8, at 82-83 (modem social systems are inclusive and integrative, spawning communications relevant for increasingly diffuse and interconnected operations, leading to democratization -in the sense of dissolved hierarchies -and to development).

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A globalized religion, Islam for example, is then seen as struggling for dominance against beliefs in a secular economic globalization or a "universal" human rights. It may be that, just as rape signals weakness in sex, terrorism signals the desperation of some fundamentalists over a loss of control within global Islam, to moderates and progressives. Many secular globalizers argue that some or many cultural emphases of traditional communities -for instance, tolerance for corruption or for female genital mutilation -must be changed through laws to foster new choices and relationships.Traditional authoritarians, Muslim activists, and other would-be nationalists correctly see this as Westernization or Americanization. Luhmann (a German) ascribes the failure of many third world economic projects to a modernization (or an individuation) without Westernization. Those Westerners who do not follow an anthropological approach typically respect foreign traditions only up to the point where instrumental relations (those based on the pursuit of gain, rather than on kinship or friendship) begin to atrophy or, as in several human rights prohibitions, affective relations become oppressive. Globalization also favors those countries, in an "international marketplace of ideas and cliches" governed by national marketing abilities, able to manipulate perceptions without necessarily controlling them.Z2

Globalization can properly be equated with Americanization, a dominance-for-profit sponsored by the "reluctant but efficient sheriff'23

and featuring imitations of American legal forms - if not American legal cultures. Its military force creates an American umbrella under which more benign forms of power can flourish, for example, the European Union. This force, as well as economic power and cultural appeal, have put the United States at the top of the global order. Cultural appeal is a "soft" power: the force of ideas and ideals, which operates subtly by influencing others to support the United States of their own free will. It is this cultural

22. KING & THORNHIIJ.., supra note 8, at 8, 99. LoWENFEID, supra note 12, at l 08; Cotterrell, Law in Culture, supra note 5, at 9, ll-12; DAUVERGNE, New Directions for Jurisprudence, in JURISPRUDENCE RJR AN INTERCONNECfED GLOBE, supra note 6, at 7; GUEHENNO, The Impact of Globalization on Strategy, in TuRBUIBIT PEACE, supra note 12, at 86, 90. See BEYER, supra note5, at 5 (Luhmann's communications can involve "sacred symbols ... which always point radicallybeyond 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 note12, 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).


appeal which, some critics argue, President Bush is dissipating carelessly. Progress toward free trade and economic integration, financed in no small measure by its trade deficits, is a great, mostly unheralded triumph for U.S. foreign policy. But it does not always live up to its aspirations or its advance billing. For example, when the United States takes the lead in bilateral and regional trade agreements, the United States undercuts the WTO. Also, many countries resent the U.S. President's statutory power to retaliate against "unreasonable or unfair" injuries to U.S. commerce, by another country or foreign trader. The early 1990s Uruguay Round of GATT negotiations tried to eliminate this power, but Congress kept it as a part of U.S. "sovereignty."24

Under a market fundamentalism akin to a Christian one, full of glosses on the texts of St. Milton Friedman, the U.S. projects raw laissez faire capitalist values and institutions onto the world stage.25 These projections often have the effect of differentiating a global economic subsystem from its pre-modem social bonds within American's Third World - for instance, the non-market, and possibly corrupt "way we do things here," including at Enron or the Chicago City Council. Rival organizational cultures, for example those of communist party-states, welfare states, or social democracies, are either dying or sapped of the resources needed to implement their rival goals effectively. Most of the American cultural influences discussed earlier are rather diffuse. These cultural influences are sponsored by multinational corporations and the media, or through the "Washington consensus" governing World Bank and International Monetary Fund operations.26 There is no master plan for, or even a full awareness of, the current cultural changes or of the Americans' collective

24. JACKSON, supra note 2, at 135, 391; Walter Mead, America's Sticky Power, FOREIGN POL'Y, Mar./Apr. 2004, at 46, 48; Trade's bounty; Economics focus (Economics focus: American's trade divided), ECONOMIST, Dec. 4, 2004, at 80 (U.S. gains from trade total an estimated 8.6% of GDP). But see also Daniel Lazare, Diversity and Its Discontents, NATION, June 14, 2004, at 23 (reviewing and quoting SAMUEL HUNTINGfON, WHO ARE WE? THE CHALLENGES TO AMERICA'S NATIONAL IDENTITY (2004) ("identity requires differentiation"-as Luhmann might say, we add-and the 1989-91 collapse of the Soviet Union left the United States adrift); id. (terrorism filled this vacuum and encouraged us to redefine ourselves in a democratic "crusade"); id. (already short tempered over a declining economy, the war on terrorism makes Americans more belligerent).

25. Lazare, supra note 24, at 14. See DAUVERGNE, New Directions for Jurisprudence, inJURISPRUDENCE R>R AN INTERCONNECTED GLOBE, supra note 6, at 5-6 (citing Dimitry Kingsford Smith that, transnational securities regulation does little more than promote American norms, in technocratic and anti-democratic ways in what is a failure of legal generalizability); WILLIAMS, Culture & Civilization, in ENCYCLOPEDIA OF PHILOSOPHY, supra note 5, at 274.

26. See infra text accompanying notes 38-39.

2005) HUMANS AND RIGHTS: COWNIAUSM, COMMERCE, AND GWBALJZATION 645

control over them. As Luhmann's analyses might lead us to conclude, this is one facet of "global governance without global government."27

This seeming paradox serves as a theme for analyses of our three partly self-governing and relatively stable tracks, or legal sub-subsystems. Some commentators call governance without government an international anarchy: the absence of, or significant gaps in, international laws and institutions; the lack of a central authority to enforce international agreements effectively, outside of the WTO; and/or the absence of an effective global monopoly over the legitimate means of coercion-a role the U.N. Security Council would like to play. But the obvious fact that most parts of the negotiated orders we analyze here, work most of the time suggests that we need a more nuanced view of governance.28

This view of governance might be analogous to the role of global"cosmopolitans" who lack a corresponding global state. This view iscomparable 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).


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'HROUGHLAW 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 note2, 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 thebulb needs changing, the market will have done it already.

The dominance of this marketplace model, through money as themedium 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, 0BSERVATIONSON MODERNITY, supra note 9, at 96. See LoWENFEI.D, supra note 12, at 474 (largely American inspired bilateral investment treaties enact a U.S. neoclassical economics-prohibiting or partially prohibiting local content requirements; the conditioning of imports on production, exports or foreign exchange; the requiring of a certain export volume; limits on domestic sales; and requirements of technology transfer or domestic research and development efforts); id. (but other governmental interventions like subsidies, tax deferrals or land grants -i.e., benefits to U.S. investors-are permitted); LUHMANN, LAW AS ASOCIALSYSTEM, supra note 8, at 390 (law applies its own jurisprudence of interests to its own interests, homogenizing economic interests by stripping them of content); id. at 391, 395 (transactions, balanced in terms of money, become self reproducing through a broad range of opportunities for repeat use through property and contracts-negotiating the conditions of transactions -laws); id. at 401 (the limits of "despotic" state intervention); Jorge Esquirol (personal communication) (free market orthodoxy as technocratic interference with democratic participation). Joseph Stiglitz, Letter to the Editor, FOREIGN PoL'Y, Mar./Apr. 2004, at 4 (neoclassical economics models unrealistically "assume perfect markets, perfect information, and perfect competition"); id. (under these assumptions "if left alone, the invisible hand will solve problems."). But see id. (neoclassical theories are "formerly beloved by the 'mainstream,' but now increasingly rejected because their predictions are so out of line with reality."). ld.


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 disadvantagedthese [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, at166; Pahuja, supra note 3, at 390. See CHUA, supra note 23, at 6-9; Paul Brietzke, New Wrinklesin 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 note5, 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 forpoor countries, and how many hoops a new member must jump through, by amending its laws and policies to fit the molds Americans and Western societies prefer. In order to stay in power, the regime in a poor country needs public-sector loans which eventually create a mountain of debt, to finance projects through theWorld Bank (WB) and to ameliorate monetary crises through the International Monetary Fund (IMF). The conditions that the World Bank and IMF set on granting these loans require, once again, the adoption of Western style laws and policies, among other things. Without such laws and policies in place, Western banks and foreign investors will not provide desperately-needed capital, without pro-

38. JACKSON, supra note 2, at 6 (citing Douglas North); KING & THORNHILL, supra note 8, at 81; Lolita Buckner Inmiss (personal communication); Becky Jacobs (personal communication). See JACKSON, supra note 2, at 450-51 (the economists' theory of "market failure" includes monopoly, asymmetry of information, distortions created by government, and the inability to obtain public goods-including peace, human rights, and self-determination and a measure of distributive justice), KING & THORNHILL, supra note 8, at 107-08 (in his late works; Luhmann emphasizes a "parasitic" power developing in other subsystems, which both draws upon and counteracts power in political subsystems); William Greider, Defunct Economists, NATION, Dec. 20, 2004, at 89 (economics guru Paul Samuelson discovers that free trade can turn into a loser for the wealthy country trading with a poor but ambitious country); id. (China and Japan must keep lending the U.S. money-finance our trade deficit-so that we can keep buying their stuff). See LINDSETH, supra note 29; (in France and Britain, the demands of administrative efficiency prompted a "dejudicialization," until the desire for justice prompted an American-style "rejudicialization"); id. (the United States never created a "self-regulating" market economy by removing it from political control, and a "rejudicialization" stemmed from the belief that administrative governance and the market economy remain "always embedded" in the values of justice and legitimacy); supra text accompanying notes 23-24.

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employer labor laws and enforcement for example.There are now very few breaches of manifestly unequal, Western style private investment agreements by "host" (typically underdeveloped) countries, compared to those breaches occurring in the 1960s and 1970s. The adoption of these Western-style laws and politics does not reflect a growing legal consensus, but a shift in the economic balance of power in favor of capital exporters.39

The massive deregulation and privatization required by the WB and IMF negates state sovereignty, as well as some nationalist demands. New laws and policies are typically approved by finance ministers or central bank governors in an undemocratic fashion and, at best, are rubber stamped by parliaments. These requirements suppress the possibility that Southern economies will develop differently from those economies in the North. Recently enhanced IMF and WB "surveillance" of its debtors, which has the effect of expanding the international agencies' jurisdictions, reflects an economists' increased emphasis on these interactions of macroeconomic policies with unwelcome interferences made by the agencies in the debtors' political priorities and social policies. Unrealistically short time horizons are imposed on unrealistic reforms. In particular, riots are provoked by forcing these debtor nations to end food and fuel subsidies to citizens quickly. Ultimately, the legitimacy of the IMF and WB stems from the force of their analyses, which are increasingly

39. LoWENFEID, supra note 12, at 492-93; Where Does the Buck Stop?, EcONOMIST, Nov.13, 2004, at 13-14. See LUHMANN, LAW AS ASOCIALSYSTEM, supra note 8, at 266 (evolution is not necessarily progress; planned legal improvements "may contribute to ... evolution but cannot have a decisive impact ... on outcomes"); id. (many old problems resurface, and participants cannot "calculate in predictable ways"); Grinding Them Down, EcONOMIST, Jan. 15, 2004, at 35 ("Brutal" Argentine tactics during its monetary crisis may be responses to poor IMF policies); Show Us The Money, ECONOMIST, Feb. 12, 2005, at 11 (the rich-nation, G8 and Davos, pledge of "making poverty history" concealed "a tangle of disagreements over how much more aid and debt relief to provide, how to pay for it and how to deliver it."). But see also Stiglitz, supra note 32 ("Even the... IMF is recognizing that open capital markets may not produce economic growth and can lead to instability in developing economies. That is a major change from just a few years ago...." Arguably, this insight has not yet occurred to many low-leveliMF officials "in the trenches."). A good summary offered in Editorial: A Boss for the World Bank. WASH. PosT, Jan. 23, 2005, B6:

the bank is fragile because its financial model is creaking. Its commercial loans are often unattractive to successful developing countries that have access to the [World] capital markets, because they come attached to well-meaning but burdensome social, environmental and anti-corruption conditions. The bank's subsidized credits, which are offered only to its poorest borrowers, are under attack for contributing to these countries debt burdens. As a result, the bank may be gradually pushed into becoming an institution that awards grants. That would deprive it of the earnings from its loans, forcing it to shrink substantially.


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 the1997 ... crisis.").

41. Editorial: The Holiday Spirit, WASH. POST, Dec. 24, 2004, at Al6 (discussing Rajan'sFinancial 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 globalizationprocess, 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 thestatus quo of this Americanized globalization. Absent reforms advanced by anti-globalizers and others, there will be none of the development45 that,

44. Brietzke, supra note 6, at 15 (citing newspaper articles by Manny Fernandez, Noreena Hertz, and Robert Weissman). See CHUA, supra note 23, at 12-13 (neglecting the fact that democratization often creates more ethnic hatred and violence, anti-globalizers like Noam Chomsky push for more democratization, while others see more marketization as a panacea); Pahuja, supra note 3, at 83 (under "two solitudes," "human rights, labor standards and environmental concerns are continually excluded from the scope of international trade law"); Putting the Brakes On, ECONOMIST, Aug. 4, 2001, at 43 (quoting French President Chirac). "Our democracies ... cannot be mere spectators of globalisation. They must tame it, accompany it, humanise it, civilise it." ld. at 44. While these attitudes reflect a French dislike for "free markets" and other aspects of the "American hegemonialism" that are seen to negate the prominence of French language and culture. ld. at 43. It also indicates a basis for making common cause with the anti-globalizers.

45. A development which can be integrated with an economic globalization involves an equalization (rather than equality), perhaps called "justice." It arguably includes minimal labor standards and environmental protections, universal primary education, access to modest levels of health care, ameliorating corruption and securing other incidents of national and international good governance, the implementation of (other) socioeconomic, cultural, and political rights and, more controversially perhaps, the promotion of peace -especially through a demilitarization. This means inclusion, through access to the means of a life with dignity, perhaps with individual (and national) "winners" transferring some of their gains to individual and national "losers." A major problem is that the wealth, power, and elitism of some often depends on or is seen to depend on the exclusion of others, leading the few to oppose improvements in the plight of the poor and

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perhaps more democratically, can also attend to the needs of the world's poor and powerless.

Such development could be credibly pursued simply by takingstatements by senior globalizers seriously and then implementing them.Chief among these senior globalizers is the recent World Bank President James Wolfensohn. His many, excellent reform-based and development oriented statements, were almost never given meaningful effect "in the trenches" ofWB (or IMF or WTO) policy implementations. Furthermore, Wolfensohn's reformed-based and development-oriented statements provoked the United States into refusing to appoint him for a third term in2005. In any event, the lack of WB, IMF, and WTO transparency or accountability tum senior globalizers' views into a comforting ideology perhaps an indication of how vulnerable they feel.46

This status quo of an Americanized global culture (of economic growthregardless 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. at480 (there is only one global society, inequalities notwithstanding); id. at 490 (on inclusion andexclusion, persons with no address cannot send their child to school); LUHMANN, OBSERVATIONS ON MODERNITY, supra note 9, at 96 (persons must be allowed to create bonds, unfreedoms, provided this is done on the basis of freedom and equality); JACKSON, supra note 2, at 93 (the problem of "national welfare" versus "global welfare" discussed); F.G. ADAMS ET AL., How THE DRAGON CAPTURED THE WORLD EXPORT MARKETS: OUTSOURCING FOREIGN INvESTMENT LEAD THE WAY (2004) (China succeeding by an economic growth-based competitiveness-exchange rate under valuation, low wage rates, and a surplus labor pool). But see also KING & THORNHilL, supra note 8, at 168 (a constitutional grandeur undermined the "dictatorship of the standard of living" through responsibilities for social allocation and amelioration).

46. Paul Blustein, World Bank Chief to Step Down in '05, WASH. POST,Jan. 3, 2005, at A4.See LoWENFEI.D, supra note 12 (U.S.-formatted bilateral investment treaties could, but do not, impose labor standards, and their environmental and human rights protections serve only to limit these protections); id. (the WTO relegates global labor standards to the ineffective International Labor Organization). But see also Recasting the Case for Aid, supra note 45 (the U.N. Millennium Development goals are becoming part of global institutions policies and rhetoric).

2005] HUMANS AND RIGHTS: COWNIAUSM. COMMERCE, AND GWBAUZATION 655

agriculture and industry.47 Dominance by an Americanized culture of globalization may thus prove a short-lived phenomenon.48 Macedonians, Romans, the Chinese, Mongols, Spaniards, and the British can remind Americans that global dominance never lasts. Although some elites in the United States openly speak of "empire," previous drives to dominate have always been undone by pluralistic and tolerant American ideals. In any event, the perceived outsourcing of jobs from the United States, and the attribution to globalization of declining real wages and increased inequalities, may lead to a new bout of isolationism in the United States.49

ill. HUMAN RIGHTS

While the profitability of economic globalization activities attracts "establishment" lawyers, an austere purity of human rights goals appeals to "insurgents." Establishment lawyers love to create the complex spontaneous orders of globalization. For example, the "most-favored nation" or national treatment rules in trade arise from a cooperation based on the mutual self-interest among Western countries that leads to an intense competition in practice. Insurgents, on the other hand, are a rather odd assortment of elites, including almost anyone in a poor country with a legal qualification -some of whom are establishment lawyers during their "day'' jobs. They are concerned about issues that the establishment ignores. They may, for instance, help organize a local chapter of Amnesty

47. STIGUI'Z, supra note 3, at xi, 11-12. See Ignatius, supra note 17 (the power of globalization became clear during the Bush Administration, especially with the economic collapse of Russia and Japan); id. ("Among the biggest challenges of the early 21st century is bringing ... modernizing China safely into the global economy, and this seems to be happening").

48. GUEHENNO, The Impact of Globalization on Strategy, in TuRBULENT PEACE, supra note12, 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).


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 aimsas 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.

5

2005] HUMANS AND RIGHTS: COLONIAUSM, COMMERCE, AND GLOBAUZATION 657

hopes of influencing the trade, foreign aid, loans, and investments that establishment lawyers claim as their province. Insurgent scholars try to build (inevitably tenuous) links between human rights laws, which mostly bind nation-states, and international trade and finance, rules which mostly bind ostensibly private parties.

For example, multinational corporations (MNCs) exist to serve theeconomic 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. 3

A human rights culture can be understood as incorporating Weberian ideal types, which are complex constructs for molding the procedural and substantive means of pursuing justice into recognizable patterns. Without such communications about the causes of and cures for human misery, the argument proceeds, the subsystems of international or national society cannot find out what human needs and wants really are. Human rights abuses are near-permanent features; they will remain unhealed in Rwanda, for example, if a truthful accounting and justice continues to be postponed or denied. Compare Chile with South Africa. But democracy and an

53. JACKSON, supra note 2, at 11 (stating the ninety percent figure, but noting that international economic law cannot be segregated from a general international law); LUHMANN, LAW AS A SOCIALSYSTEM, supra note 8, at 212, 216, 260; Richard Falk, Human Rights, FOREIGN PoL' Y, Mar.-Apr. 2004, at 20; Carlos Vasquez, Trade Sanctions and Human Rights-Past, Present, and Future, 6J.1NT'LECON. L. 797,797, 804(2003). See JACKSON, supra note 2, at 445 (ascribing the insurgent tactics described in the text to environmentalists, and noting that neither trade nor environmental policies can be pushed to the limit).


independent judiciary need time to grow strong enough to pursue justice, against the military in Argentina or Brazil for example.54

While the international community readily pays lip service to vaguely worded human rights, disputes quickly and consistently erupt over the legitimacy of merely moral rights. Moral rights are those lacking a legal sanction, "interpretations" of human rights as attempts to give them useable content. The international community then attempts to establish the correlative duties to observe these rights (by individuals, groups such as corporations, communities, states, and regional and international organizations) and to then institutionalize, implement, and enforce rights and duties that have become fairly concrete in the process. Detracting from its own sovereignty, a state is expected to forbear interfering with some principled, chiefly political and civil rights, yet play an important role in implementing other social, economic, and cultural rights. While many states have conceded these sovereignty limitations by agreeing to the relevant human rights covenants and conventions, the increasingly-rare recalcitrants (countries which are dissidents from some or many of these rights) risk having the rights in such documents applied against them anyway, as "customary international law." Conceptual hierarchies among all of these rights and their sources are somewhat confusing and provoke additional disputes.55

While the resulting human rights are of high priority and usually mandatory, a fair amount of pragmatism accompanies such highmindedness in practice. For instance, those rights are "resistant to trade offs, but not too resistant."56 Jean-Marie Guehenno sees in human rights

54. Editorial: Chile's Accounting, WASH. POST, Dec. 24, 2004, at A16. See LUHMANN,0BSERVATIONS ON MODERNITY, supra note 9, at 15; NOBlES & SCHifF, Introduction, in LAW AS A SOCIAL SYSTEM, supra note 8, at 49.

55. TOM CAMPBEll., Democratizing Human Rights, in HUMAN RIGHTS IN PHILoSOPHY AND PRACTICE, supra note 31, at 175, 177-80; COTTERREIL, The Concept of Legal Culture, in COMPARING LEGAL CULTURES, supra note 5, at 23-24; LAMA, Human Rights and Universal Responsibility, in THEPlllLOSOPHYOFHUMANRIGHTS,supra note 9, at 291-93 (discussed in part in supra note43); FAGAN, Human Rights, in INTERNETENCYCLOPEDIAOFPlllLOSOPHY,supra note51; James Nickel, Human Rights, STANFORD ENCYCLOPEDIA OF PHILoSOPHY 2004, available athttp://plato.stanford.edu/entries/rights-human (last visited July 19, 2005); Pahuja, supra note 3, at383.

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

2005) HUMANS AND RIGHTS: COWNIALJSM. COMMERCE, AND GWBALIZATION 659

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 claimto 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 possiblybe 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 thatwrong 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 note12, 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 note8, 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 assumptionsconcerning 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 note9, at 17 (when we speak of freedom, is there an emancipation from reason or does the unity of the

2005] HUMANS AND RIGHTS: COWNIAUSM, COMMERCE, AND GWBAUZATJON 661

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).


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.

2005) HUMANS AND RIGHTS: COWNIAllSM, COMMERCE, AND GWBALIZATION 663

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

664 FWRIDA JOURNAL OF INTERNATIONAL LAW [Vol.l7

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 Eurocentriccultural 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, nationalismis 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 OFPHILOSOPHY, 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, at132-34, 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 note31, 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).

2005] HUMANS AND RIGHTS: COLONIAUSM, COMMERCE. AND GLOBAU7ATION 665

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, expressingcommunitarian 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.


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 sub article 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, especiallyopposition 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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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 American dominated 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 the1948 Genocide Convention.81 It is essential this right be the most important, because other rights are pretty meaningless until an individual'sself-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.


enforced deprivations. But in practice, some nationalist movements and their governmental opponents are so violently intolerant the pursuit of self determination 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 totreat 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 HumanRights, 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. SeeMikmak Tribal Soc. v. Canada, U.N. Doc. CCPR/C/43/D/20511986 (199I). Mikmak leaders


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 strongdialectical influence on the public international law concerning the balance between human rights and a territorial integrity. With regard to a quasi private 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 thegrowth 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 note8, 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 self determination. 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 internationallaws much of the time. In any event, the alternative to tolerating self determination 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 self determination, 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 note10, 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 note51 ("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.


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.


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 discussionare (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 quasi federal 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 self determination at the international level.

94. COITERREI.L, The Concept of Legal Culture,in COMPARINGLEGALCULTURES, supra note5, 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.

674 FWRIDA JOURNAL OF INTERNATIONAL V.W [Vol. I?

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, at379, 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).

2005] HUMANS AND RIGHTS: COLONIAUSM, COMMERCE. AND GLOBAUZATION 675

formulation of eliminating "indignity, hopelessness and grievance."100 In1949, 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 valuesand, 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 environmentaldegradation 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 theestablishment 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 anti capitalist 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 4.10l. 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 aprecondition 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 nation states. 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,supranote8, 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 abackdrop 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 10,131-40,157,166-70, 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 theirinterdependence, 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.


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 byitself, 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 aggressiveactions 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, supranote 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. at42 (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 itscontinuance 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 major player 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,


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 note12, at 90; Lazare, supra note 22, at 36. As always, the devil is in the details and, as this Essay isbeing 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 whichYeltsin 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 the1980s, 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 manycharacterizations· 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 governmentpoker 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.


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 aconsensus 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, willreduce 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 note8, at 406, 468.


delaying these risks; in other words, trying to save ourselves from bad outcomes.118

Constitutionalization should draw firm differentiations betweenpolitical 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, carefully structured 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.

2005) HUMANS AND RIGHTS: COWNIAUSM, COMMERCE, AND GWBAUZAT/ON 687

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 anti globalizers should support democratization as a partial equalizer for the major players' wealth and power. 120

Democratization would thus reduce segmentation in Luhmann'ssubsystems, 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 meta distinction within and among all of Luhmann's subsystems.121

As an illustration, the effect of an international democratization onhuman rights is likely to be ambiguous-at least initially. While a broad scale 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).


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 nation states connected to the global economy, and a "Non-Integrating Gap" of nation-states excluded or self-excluded from the matrix of wealth andprogress, 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 couldpermit but not require states to impose trade sanctions for human rights violations).

125. See supra text accompanying notes 101-02.


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 improvedupon, 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, supranote 8, at 33 (discussing Luhmann's ideas).

690 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol.17

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).


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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