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119
Philip Allott, ˜The True Function of Law in the International Community™ (1998) 5 Indiana
Journal of Global Legal Studies 391“413, 391.
219 The return of universalist law


It is instructive to borrow a twentieth-century formulation of sovereignty
with Hobbesian overtones, in the attempt to understand the place of the United
States in the emerging world society. Carl Schmitt wrote: ˜Sovereign is he who
decides on the exception . . . A jurisprudence concerned with ordinary day-
to-day questions has practically no interest in the concept of sovereignty . . .
What characterizes an exception is principally unlimited authority, which
means suspension of the entire existing order.™20
Schmitt was asserting that the jurisprudence of everyday lawyers preoccupied
with law as rules from cases and statutes has nothing to do with sovereignty.
This notion of sovereignty leaves out much of legal value from social processes
which coexist below and above the state level. The United States does, however,
enjoy a Schmittian notion of sovereignty in its role as a world power or
hegemon. The US intervenes at its discretion in international causes (for
example, in the Balkans and not in Rwanda). It chooses the economic laws it
wishes to follow. (For example, the US expected African nations to pay for
unsubsidised AIDS medicines; yet was content, for its own domestic antiter-
rorist purposes, to order its pharmaceutical companies to produce subsidised
anthrax antidote.)21 US whimsicalness is reminiscent of that of the absolutist
monarchies in the seventeenth and eighteenth centuries, guaranteeing, in e¬ect,
social stability (at the expense of freedom), without relying necessarily upon
law.22 To be sure, Schmitt™s theory may be ˜found wanting in respect of those
situations in which there is a standing constitutional tradition™, as observed
by Neil MacCormick.23 Furthermore, absolutist monarchies have not endured
in the West. In the context of an international law which is something less
than a ˜standing constitutional tradition™, in the post-Cold War era the US
may be regarded as a global sovereign (subject to some quali¬cations below).
The US continues to decide the exception, periodically, to established world
law, for example, in Yugoslavia, Afghanistan, Iraq and some South American
countries.24
From what we saw of the historical, normative sources of the nation-state,
the tendency for humans to ally themselves to their own kin and community
of utility25 should cause no surprise when a state such as the US is seen to act
out of self-interest in the international sphere. The US is not, of course, an

120
Carl Schmitt, The Political Theology of Sovereignty, trans. George Schwab (Cambridge, MA:
MIT Press, 1985), pp. 5, 12.
121
See Peter Singer, One World: The Ethics of Globalisation (Melbourne: Text Publishing, 2nd edn
2004), pp. 80“1, 133, 153.
122
˜To produce law [the sovereign] need not be based on law™: Schmitt, Political Theology, p. 13.
123
Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European
Commonwealth (Oxford: Oxford University Press, 1999), p. 128.
124
See generally Michael Byers and Georg Nolte (eds.), United States Hegemony and the
Foundations of International Law (Cambridge: Cambridge University Press, 2003); Michael
Ignatie¬ (ed.), American Exceptionalism and Human Rights (Princeton: Princeton University
Press, 2005); Philippe Sands, Lawless World: America and the Making and Breaking of Global
Rules from FDR™s Atlantic Charter to George W. Bush™s Illegal War (New York: Viking, 2005).
125
See ch. 9, sections 9.1 and 9.2, pp. 196“203 above.
220 A Wholly Mammon Empire?


absolute global sovereign. Its activities are subject to the moral discourse of an
emerging world society amongst other societies. That discourse is in¬‚uential
and not clear cut, like any social discourse, and some deference is paid to the
moral discourse in a self-conscious way “ for example, President George
W. Bush™s ˜war against global terror™ and e¬orts on behalf of ˜the free peoples of
the world™. To be credible at a moral, interior level on the Space Axis of the
Space“Time Matrix, the US, with all of its exterior powers, must a¬rm human
solidarity without reference every time to its own economic and strategic con-
cerns.26 Visions of that solidarity can be found in some fundamental twentieth-
century treaties.


10.3 The preambling quest for human solidarity
On the Time Axis, what has been largely forgotten by most current commenta-
tors on this ˜globalising™ dynamic is the historical signi¬cance of four twentieth-
century institutions synonymous with globalisation. They were concerned at
their establishment to achieve human solidarity and to preserve human dignity
and life.
A new moral awareness of world proportions superseded the shifting
sands of ine¬ective international political allegiance and the unsustainable, evi-
dently misplaced domestic nationalisms which had culminated in the World
Revolution. Of the purportedly universal moral consciousness, the rallying of
regional forces in the name of ˜free peoples™ and ˜¬ghting evil™ has a medieval
crusader ring. It harks back to the Christian commonwealth of our rhetorical
holy Roman empire. The modern European public law system associated with
sovereign states, which had superseded the late medieval Christian common-
wealth, is challenged by a new, secular commonwealth. This new common-
wealth professes to represent liberalism and democracy, proclaiming notions of
human rights, crimes against humanity and free trade. O¬ences against these
universalist principles are considered to warrant collective action in the name
of humanity, not a state, for o¬ences against universalist standards. Principles
of a ˜just war™ returned, by which war may only be justi¬ed on compelling
moral grounds, not as a matter of a state™s right.27 Twentieth-century ˜Peace
Movements™ have acted on behalf of a new commonwealth of humanity, anal-
ogous to the previous turn-of-the-millennium Peace Movement acting on
behalf of members of the Catholic church.28
Nowhere are the aspirations for this new commonwealth better documented
than in the preambles to the revolutionary institutions which, after World War
II, ensued. A common, painful history and hope for the future are the moral

126
See Richard Falk, ˜Re-framing the Legal Agenda of World Order in the Course of a Turbulent
Century™ in Likosky (ed.), Transnational Legal Processes.
127
Martin van Creveld, ˜On Globalization: The Military Dimension™ in Karl-Heinz Ladeur (ed.),
Public Governance in the Age of Globalization (Aldershot: Ashgate, 2004), pp. 205“6.
128
See ch. 5, section 5.1, p. 96 above.
221 The return of universalist law


lynchpins to the success of these politically established legal endeavours. Four
of these institutions are brie¬‚y considered by reference to their preambles.
Unfortunately the preambles and recitals of legal documents are frequently
glossed over in the hurry to exploit operative provisions, to ˜get things done™
for clients (be they governments, corporations or people) at the expense of
someone or something else.


10.3.1 The United Nations
[T]o save succeeding generations from the scourge of war, which twice in our life-
time has brought untold sorrow to mankind, and
to rea¬rm faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women and of nations large and
small, and
to establish conditions under which justice and respect for the obligations arising
from treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom29

In pursuit of these goals, the United Nations (UN), established in 1945, con-
tains codi¬ed prohibitions from customary international law in the ¬rst two
articles of its Charter on aggressive war and the use of force to annex territory
belonging to another sovereign. Permeating ideological notions of what is
˜civilised™, together with the collectivised coercion available from trade sanc-
tions and military force, have compromised the state as a solitary form of gov-
ernment over a territory, unless that state complies with purportedly universal,
collective standards of civilisation.
An analogy can be drawn between the medieval papacy and the UN as moral
superintendents of the social order, transcending territorial boundaries. For the
failures of both supranational organisations politically, some consolation takes
place at the level of moral reach. As Martin van Creveld has written of the UN:
˜Like the papacy, it is swerving from one ¬nancial crisis to another and is forever
negotiating with members (formerly princes) who refuse to pay their debts.
Like the papacy, its practical impotence is o¬set in part by the considerable
moral authority which it wields.™30
The UN™s universalist moral imperative is felt in the network of UN com-
mittees which project civil, political, cultural and economic rights into the
global legal landscape. Unlike the medieval papacy™s relatively universal moral
and political authority in Europe on the Space Axis, the UN has been politically
slow, if not weak, in the face of latter twentieth-century con¬‚icts, for example,
in Rwanda, the Balkans and the Ivory Coast. Criticisms of the UN political

129
Preamble, Charter of the United Nations.
130
van Creveld, Rise and Decline, pp. 353, 384. He understates the medieval papacy™s political
power of excommunication: see ch. 5, section 5.3, pp. 102“3 above.
222 A Wholly Mammon Empire?


process abound, including its internal corruption, ˜democratic de¬cit™31 and
lack of permanent representation on the Security Council for countries other
than China, France, Russia, the UK and the US. Whilst these issues require
debate, disparagement of the UN frequently proceeds according to the UN™s
perceived impediments to factional goals. References to the UN, particularly in
the popular media, rarely recall that the UN was spawned out of bloody revo-
lution and the highest of human aspirations. Cynicism of the institutional
culture of the United Nations should not displace respect for the crucial nor-
mative signi¬cance of this institution in the history, and for the future, of the
solidarity of humanity.


10.3.2 International criminal adjudication
The administration of international criminal justice after World War I was
morally bankrupt. Armed burglars convicted in the 1920s served more time in
prison than the six German o¬cers convicted for war crimes committed in
World War I. Those burglars on their release were not received back into their
societies amid the national cheer for their return which greeted the war crimi-
nals. The plea of ˜not guilty™ for following orders from superior o¬cers had until
that time been persuasive in most war crimes trials.32
The Nuremberg and Tokyo Tribunals set a new precedent after World War II.
Interests of justice were thought better served through the formality of due
process.33 The undefended summary trial or execution of the vanquished by the
victor would have taught no moral lessons. The Nuremberg Charter de¬ned the
greatest twentieth-century legal doctrine, ˜crimes against humanity™, as
murder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war, or persecu-
tions on political, racial or religious grounds in execution of or in connection
with any crime, within the jurisdiction of the tribunal, whether or not in viola-
tion of the domestic law of the country where perpetrated. Leaders, organizers,
instigators and accomplices participating in the formulation or execution of a
common plan or conspiracy to commit any of the foregoing crimes are respon-
sible for all acts performed by any person in the execution of such plans.34


131
See ch. 11, section 11.4, pp. 267“8 below.
132
Vesselin Popovski, ˜The International Criminal Court: A Synthesis of Retributive and
Restorative Justice™ (2000) 25 International Relations 1“10, 2.
133
Allied justice featured its own inequities. For example, defence counsel were German lawyers
without training in adversarial trial procedure. There was allied hypocrisy in relation to the
charges of wanton destruction (e.g., Britain had ¬re-bombed Dresden; the US had used
nuclear weapons). The Soviet Union under Stalin was subjecting its vanquished to forced
labour. See Geo¬rey Robertson, Crimes Against Humanity: The Struggle for Global Justice
(London: Allen Lane, 1999), pp. 201“2, 206.
134
Nuremberg Charter article 6(c), extracted in Robertson, Crimes Against Humanity, p. 190. See
generally Larry May, Crimes Against Humanity: A Normative Account (Cambridge: Cambridge
University Press, 2005).
223 The return of universalist law


By exposing war activities to legal argumentation, individual responsibility
during war was established under law. The arti¬ciality of the state was exposed
and a ˜universal jurisdiction™ projected over all human associations. O¬cers
could not hide behind uniforms.
Universal criminal jurisdiction can purportedly be exercised in state tri-
bunals, such as when Adolf Eichmann was abducted from Argentina by the
Mossad to face trial in Israel for his role in the Holocaust.35 A national ˜Beth
Hamishpath™ “ ˜House of Justice™ “ risks being undermined by the perception of
state bias. One state™s house of justice is another state™s house of injustice. The
state exercise of such jurisdiction also poses the risk of further abductions.
The treaty for the International Criminal Court (ICC), although still to sit
in judgment at the time of writing, exercises jurisdiction without obvious
national bias over crimes against humanity. The preamble captures its mission:
Conscious that all peoples are united by common bonds, their cultures pieced
together in a shared heritage, and concerned that this delicate mosaic may be
shattered at any time,
Mindful that during this century millions of children, women and men have been
victims of unimaginable atrocities that deeply shock the conscience of humanity,
Recognizing that such grave crimes threaten the peace, security and well-being of
the world36

By April 2002, the requisite number of sixty states had signed the treaty. The oper-
ational e¬ectiveness of the ICC is threatened by the US refusing to ratify the treaty,
for fear of its soldiers being prosecuted. What can be said, given this initiative and
the ad hoc UN International Criminal Tribunals,37 is that morality is not simply
the preserve of the individual™s immediate environs or social spheres where per-
sonal relationships exist. Minimal morality as a matter of law is expected of behav-
iour performed in the service of larger, more exterior, political social collectives
such as the state. The particularity of the state is being challenged by the univer-
salism of world moral principles.38 Curiously, the collective of the ˜world™ can be
closer on the Space Axis to the allegiance of the individual than is the state.39


10.3.3 The IMF and World Bank
Two key economic institutions of the global society with continuing world sig-
ni¬cance are the International Monetary Fund (IMF) and the World Bank. The

135
See generally Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil
(Harmondsworth: Penguin, 1997).
136
Preamble, Rome Statute of the International Criminal Court, 37 ILM 1002 (1998).
137
See William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia,
Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006).
138
Universal civil jurisdiction over torts and delicts, emanating from a state house of justice, can
be seen, for example, in the Alien Tort Claims Act, 28 U.S.C. §1350.
139
See discussion surrounding n. 70 below.
224 A Wholly Mammon Empire?


World Bank (initially called the International Bank for Reconstruction and
Development) provides low-interest credit and grants to less-developed coun-
tries. The IMF promotes international monetary co-operation and exchange
stability, and temporary ¬nancial assistance to countries in need. Led by the
US and the UK, the charters of both organisations were conceived in 1944
at Bretton Woods, New Hampshire, at the UN Monetary and Financial
Conference. Nowadays these institutions are subject to a great deal of criticism.
Primarily this is for their attitude to the less-developed countries which these
institutions are supposed to serve.40 Far from being designed to serve the free-
market economic dogma which coincides with Western interests at the expense
of developing economies, the preambular intentions were di¬erent.
The purposes of the Bank are:
(i) To assist in the reconstruction and development of territories of members
by facilitating the investment of capital for productive purposes, including
the restoration of economies destroyed or disrupted by war, the reconversion
of productive facilities to peacetime needs and the encouragement of
the development of productive facilities and resources in less developed
countries.
...
(v) To conduct its operations with due regard to the e¬ect of international
investment on business conditions in the territories of members and, in the
immediate postwar years, to assist in bringing about a smooth transition
from a wartime to a peacetime economy.41

The purposes of the IMF are:
...
(ii) To facilitate the expansion and balanced growth of international trade, and
to contribute thereby to the promotion and maintenance of high levels of
employment and real income and to the development of the productive
resources of all members as primary objectives of economic policy.42

The immediate background to the founding of the World Bank and the IMF
were the 1930s depression, trade restrictions, discriminatory currency arrange-
ments and unpaid World War I debts regarded as a cause of the Japanese
and German aggression facilitated by an absence of collective action.43 The con-
sequential tasks were collective and threefold: relief and rehabilitation of the

140
The critical literature is voluminous. For the main ideas, see e.g. Joseph Stiglitz, Globalization
and its Discontents (London: Penguin, 2002); Richard Peet, Unholy Trinity: The IMF, World
Bank, and WTO (London: Zed Books, 2003).
141
The International Bank for Reconstruction and Development (now one of ¬ve organisations
comprising the World Bank) Articles of Agreement, adopted on 22 July 1944, Australian
Treaty Series 1947 No. 15.
142
The International Monetary Fund Articles of Agreement, adopted on 22 July 1944, Australian
Treaty Series 1947 No. 11.
143
Raymond F. Mikesell, The Bretton Woods Debates: A Memoir (Princeton: International Section,
Department of Economics, Princeton University, 1994), p. 4.
225 The return of universalist law


post-World War II world, reconstruction and development, and freeing inter-
national markets (which was entrusted to the World Trade Organization).44
The ¬rst ¬fteen years of the life of the World Bank were dominated by recon-
struction e¬orts shaped by the rise of the Cold War and the need to bolster
democracy.45
Prevention of another global economic depression was the main province of
the IMF. The IMF was to apply pressure to those Member States not contribut-
ing their share to global aggregate demand. Loans were to be provided as liq-
uidity injections in economies su¬ering from economic downturn. There was,
therefore, an acceptance back then that markets often did not work well when
left only to their own devices.46 The tension persists.47
International organisations, like states and people, move on after they have
dealt with tragedy. Free trade, inconsistently with its connotation of equality,
produces great inequality and potential instability which could foreseeably
betray the birthright given to these Bretton Woods institutions.


10.3.4 The European Communities
. . . Resolved to substitute for age-old rivalries the merging of their essential
interests; to create, by establishing an economic community, the basis for a
broader and deeper community among peoples long divided by bloody con¬‚icts;
and lay the foundations for institutions which will give direction to a destiny
henceforward shared48
. . . Resolved by thus pooling their resources to preserve and strengthen peace and
liberty, and calling upon the other peoples of Europe who share their ideal to join
in their e¬orts49
. . . Recalling the historic importance of the ending of the division of the
European continent and the need to create ¬rm bases for the construction of
the future Europe50

The passionate sources of personal moral allegiance which helped to found the
European Union were captured in the words of Winston Churchill. In answer
to the question ˜What is Europe?™, he answered in July 1945: ˜a rubble heap, a

144
Edward S. Mason and Robert E. Asher, The World Bank Since Bretton Woods (Washington,
DC: The Brookings Institute, 1973), pp. 2“3.
145
Christoper L. Gilbert and David Vines, ˜The World Bank: an Overview of Some Major Issues™
in Christopher L. Gilbert and David Vines (eds.), The World Bank: Structure and Policies
(Cambridge: Cambridge University Press, 2000), p. 14.
146
Stiglitz, Globalization, p. 12.
147
See Mac Darrow, Between Light and Shadow: The World Bank, the International Monetary
Fund and International Human Rights Law (Oxford: Hart Publishing, 2006); Balakrishnan
Rajagopal, International Law from Below: Development, Social Movements and Third World
Resistance (Cambridge: Cambridge University Press, 2003), ch. 5.
148
Preamble, Treaty Establishing the European Coal and Steel Community, 18 April 1951.
149
Preamble, Treaty Establishing the European Economic Community, 25 March 1957.
150
Preamble, Treaty on European Union, 7 February 1992.
226 A Wholly Mammon Empire?


charnel house, a breeding-ground for pestilence and hate™. He appealed in
September that year for ˜a kind of United States of Europe™. At the privately
organised Congress of Europe in 1948, the foundations for moral allegiance
received further articulation by Churchill with similar sentiments expressed
by other leaders, in terms which sought to replace the necessary national alle-
giance with allegiance to some other, newer social organism in response to the
revolution:
We must proclaim the mission and the design of a United Europe whose moral
conception will win the respect and gratitude of mankind, and whose physical
strength will be such that none will dare molest her tranquil sway . . . I hope to
see a Europe where men and women of every country will think of being
European as belonging to their native land, and wherever they go in this wide
domain will truly feel ˜Here I am at home™.51

This is not economic language, nor is it distantly political. It is a passionate, per-
sonal appeal at a nonetheless logical level, to a people recovering from world war
in the midst of the World Revolution. Not only does a European moral author-
ity underlie the foundation of the institutions of the EU but the institutions
possess a universalist European political authority which has achieved a power
comparable to the medieval papacy. There does not, however, appear to be
the same con¬‚uence between moral and political authority. Forgetful state-
nationalism and economic rationalism tend to leaden the loftier aspirations of
the EU formulated in response to the past and envisioned for the future.52


10.3.5 The community that jurisprudence rebuilds?
Inaugurating memories and purposes are often buried under the dust thrown
up by the frenzied pursuit of political and economic goals facilitated by treaties,
constitutions and agreements. The exhortations of the political ¬gures who
inspired the preambles of these four global legal phenomena face being for-
gotten in the new time like the cautions uttered by Old Testament prophets.
There seems to be some truth in the pregnant conclusion reached by Eugen
Rosenstock-Huessy (in his 1938 ˜autobiography of Western man™) that ˜[i]n the
community that common sense rebuilds, after the earthquake, upon the ashes
on the slope of Vesuvius, the red wine of life tastes better than anywhere else™.53
An implicit meaning which may be imbibed from this quote is that when revo-
lutionary times settle into comfort, it is all too easy to become complacent and
indulgent. A general, globalist jurisprudence must therefore encourage a nor-
mative, historical jurisprudence, to keep alive and to generate, further, the
highest human aims and principles to direct the norms of institutions such as
the United Nations, International Criminal Court, International Monetary
Fund, World Bank and the European Union.

151 52
See Davies, Europe, pp. 1065“6. See ch. 11 below generally.
153
Rosenstock-Huessy, Out of Revolution, p. 758.
227 The return of universalist law


We may now move to examine the principles which accompany these insti-
tutions: human rights and free trade.


10.4 Universal human rights
˜Human rights™, according to former High Court of Australia Chief Justice Sir
Gerard Brennan, ˜prescribe the minimum conditions in which an individual
can live in society with his or her dignity respected™.54 Human rights discourse
seeks universal support by o¬ering some benchmark of normativity which
should be able to attract subjective, moral allegiance. Whilst sometimes com-
peting with state law, the universalist principles of human rights and free trade
can also provide legitimacy to state law. These discourses rely upon a recurring
functional authority by occupying a similar place to traditional Christianity in
earlier Western societies.


10.4.1 Patterns of ultimate reality and meaning
Until the seventeenth and eighteenth centuries, God™s laws were thought to
bind humans unalterably. Nowadays, human, economic and civil rights are,
in popular Western consciousness, vying for the functional place of God™s
laws. The twentieth-century human rights documents represent a contin-
uation of the sorts of universalist, natural law principles characteristic of
medieval Christendom,55 signi¬cantly bolstered, as suggested in chapter 8, by
the French Declaration of the Rights of Man and Citizen. As apprehended by
Friedrich Tenbruck, they build on ˜the Creation, the universality of the
Children of God and of brotherhood . . . with the chiliastic promise arising
in the Middle Ages of the . . . salvation of the Kingdom of God on earth . . .™
The ˜secular remnants of this Christian theology of history™ facilitated ideas
˜of an equal and common development of humanity as the ful¬lment of
history™.56
The twentieth-century rights purport to transcend the nation and apply to
all of humanity. Human rights evidence the natural laws and natural rights of
our time “ patterned on a recurring legal need for social theology and now phi-
losophy. Until about the seventeenth century, it was easy to point to God as the
crucial normative authority which underlay all other claims to authority. There
have been successors, as Johan Galtung has observed:


154
Sir Gerard Brennan, ˜Principle and Independence: The Guardians of Freedom™ (2000) 74
Australian Law Journal 749“59, 755.
155
See e.g. John Witte Jr, ˜Law, Religion, and Human Rights™ (1996) 28 Columbia Human Rights
Review 1“31; Charles J. Reid Jr, ˜The Medieval Origins of the Western Natural Rights
Tradition: The Achievement of Brian Tierney™ (1998) 83 Cornell Law Review 437“63.
156
Friedrich H. Tenbruck, ˜The Dream of a Secular Ecumene: The Meaning and Limits of
Policies of Development™ in Mike Featherstone (ed.), Global Culture: Nationalism,
Globalization and Modernity (London: Sage, 1990 reprinted 1996), p. 200.
228 A Wholly Mammon Empire?


These successors . . . were the king, the state, the people and the state organiza-
tion (the League of Nations, the United Nations etc.). The state is then con-
structed in the image of a benevolent, omnipresent, omniscient and omnipotent
king, possibly receiving legitimacy both from the state community and from the
people . . . The state elevates itself through an act of levitation to the transcen-
dental levels of even deciding over omnicide, through weapons of mass destruc-
tion, while standing on top of a growing human rights mountain.57

Our ˜global times™, featuring accelerated interconnections amidst perforated
territorial borders, have resulted in a boon to the possibility for certain human
norms to be projected and accepted as universal. This de¬es the traditional
sphere of containable disruption of the nation-state, such that the nation-state
can appear to be an excuse for privilege in a particular sphere which is unjusti-
¬able on a world scale. These new human rights universalise humanity by con-
testing sovereignty conceived in state, national or territorial terms.58 This was a
consequence of the maniacal horror of the World Revolution which implored a
human, as opposed to national, response.
Human rights received their fundamental codi¬cation in the Universal
Declaration of Human Rights (which will at times be referred to as ˜the
Universal Declaration™), adopted by the United Nations General Assembly in
1948. Two other documents adopted in 1966 are commonly dealt with in the
context of twentieth-century human rights: the International Covenant on
Civil and Political Rights; and the International Covenant on Economic, Social
and Cultural Rights. Not all of these rights are absolute in the sense of ˜cover-
ing the ¬eld™ morally without dispute: some rights can clash ˜head-on™,59 for
example where cultural rights might con¬‚ict with economic rights. To an
extent there is a di¬erence between ˜human rights™ and civil, political and social
rights of the covenants, the latter distinguishing between national and alien, for
example, where employment is concerned.60 The two covenants do, however,
attempt to convert the general language of the Universal Declaration into
legally binding treaties. All of these human rights texts are related. Economic,
social and cultural rights can facilitate the enjoyment of civil and political
rights.61



157
Johan Galtung, Human Rights in Another Key (Cambridge: Polity Press, 1994), pp. 18“19.
158
Roland Axtmann, ˜Globalization, Europe and the State: Introductory Re¬‚ections™ in Roland
Axtmann (ed.), Globalization and Europe: Theoretical and Empirical Investigations (London:
Pinter, 1998), p. 15.
159
Alice Tay, ˜Human Rights and Human Wrongs™ (1999) 21 Adelaide Law Review 1“18, 16.
160
See e.g. Matthew C. R. Craven, The International Covenant on Economic, Social and
Cultural Rights: A Perspective on its Development (Oxford: Clarendon Press, 1998),
pp. 172“4, 265“6.
161
See Abdullahi Ahmed An-Na™im, ˜Globalization and Jurisprudence: An Islamic Law
Perspective™ (2005) 54 Emory Law Journal 25“51, 32; Chen, ˜Globalization and its Losers™, 161
and sources therein at n. 20; Michael Kirby, ˜Human Rights and Economic Development™
(1996) Australian International Law Journal 1“14.
229 The return of universalist law


10.4.2 From equality of souls (eleventh century) to equality of bodies
(twentieth century)
The emanation of human rights from the French Declaration of the Rights of
Man and Citizen is easily observed. The universalistic projections of liberty,
freedom of speech and thought, and rule of law are developed in the twentieth-
century document. There is a similar sense in both the French Declaration
and the Universal Declaration that both tables of norms o¬er an advance over
a disturbing past, although more dramatically expressed in the Universal
Declaration. The French Declaration posited a vision of equality against a
history of corrupt monarchy. For the Universal Declaration, the preamble ˜the
barbarous acts which have outraged the conscience of all mankind™ echoes the
institutional preambles to which reference was made above,62 in response to the
despair of world wars. These logical, rational human rights documents are
heavily imbued with the futurist dimension of our Space“Time Matrix with a
corresponding interior moral urgency and logical impulsion on the Space Axis.
Extending the discussion of human rights doctrines commenced with the
French Declaration in chapter 8,63 the following visionary doctrines of univer-
sality and social welfare are added by the Universal Declaration.
Universality ˜The General Assembly proclaims This Universal Declaration
of Human Rights as a common standard of achievement for all peoples
and all nations . . .™ (Preamble). ˜Everyone is entitled to all the rights and
freedoms . . . without distinction of any kind, such as race, colour, sex, lan-
guage, religion, political or other opinion, national or social origin, prop-
erty, birth or other status™ (article 2). ˜Everyone has the right to recognition
everywhere as a person before the law™ (article 6). ˜No one shall be arbi-
trarily deprived of his nationality nor denied the right to change his
nationality™ (article 15(2)) . ˜Education shall be directed to the full devel-
opment of the human personality . . . It shall promote understanding, tol-
erance and friendship among all nations, racial or religious groups . . .™
(article 26(2)) . A global civil society, or world society of humans, is clearly
contemplated by the Declaration. No nation-state has the moral right to
enjoy a sphere of containable disruption impervious to these universal
principles.
Social Welfare ˜Everyone, as a member of society, has the right to social
security and is entitled to realization, through national e¬ort and interna-
tional cooperation . . . of the economic, social and cultural rights indis-
pensable for his dignity and the free development of his personality™
(article 22). ˜Everyone has the right to rest and leisure, including reason-
able limitation of working hours and periodic holidays with pay™ (article
24). ˜Everyone has the right to a standard of living adequate for the health

162 63
See section 10.3, pp. 221“6 above. See ch. 8, section 8.4.1, pp. 180“1 above.
230 A Wholly Mammon Empire?


and well-being of himself and of his family . . . Motherhood and child-
hood are entitled to special care and assistance™ (article 25). ˜Everyone has
the right to education™ (article 26). These welfare principles moderate the
harshness of liberal capitalism and perhaps have gone some way towards
incorporating the less radical demands of socialism in an e¬ort to avert the
revolutionary threat after World War II.
As a practical matter, human rights under the Universal Declaration are not
˜law™ in the strict sense of law centrally co-ordinated and enforced by the state
(although human rights have been received as a matter of principle into EU pos-
itive law).64 ˜[H]uman rights are ¬rst and foremost moral rights.™65 Chie¬‚y, they
animate a jurisdiction for public discourse and recommendation. The United
Nations Human Rights Committee66 supervises state parties™ compliance with
the International Covenant on Civil and Political Rights (ICCPR), through
reporting and petition procedures. Under article 40 of the ICCPR, state parties
are obliged to ¬le, within one year of entry and at ¬ve yearly intervals thereafter,
reports with the Committee on their human rights measures. The Committee
reviews submissions in public session, inviting government representatives to
attend and respond to questions. Proceedings are then published in the annual
report to the General Assembly.67
The First Optional Protocol to the ICCPR allows for petitions in the form of
written communications from individuals, against states which have rati¬ed the
protocol, to be adjudicated by the Committee. Domestic remedies must ¬rst
have been exhausted, under article 2. Communications are invited from the indi-
vidual and the state party without oral hearings or formal court rules. Opinions
by consensus of the Committee are delivered after considering the written sub-
missions and making a determination in private meeting. Enforcement depends
largely upon publicity by the Committee for the most part.68 Certain ¬ndings,
for example, in France and the Netherlands, have resulted in legislative and
¬nancial measures being taken to a¬ord remedies to claimants.69
Con¬‚icting with the old notion that the subjects of international law are
states, individuals may have access to international human rights tribunals.
Non-state actors and international organisations may avail themselves of inter-
national norms alongside, if not ahead of, state laws. For example, a person

164 65
See ch. 11, section 11.2.4, pp. 262“3 below. Tay, ˜Human Rights™, 5.
166
This ICCPR treaty organisation is di¬erent from the UN Charter-derived Human Rights
Council which replaced, in 2006, the Commission on Human Rights.
167
See Laurence R. Helfer and Anne-Marie Slaughter, ˜Toward a Theory of E¬ective
Supranational Adjudication™ (1997) 107 Yale Law Journal 273“391, 338“41.
168
Helfer and Slaughter, ˜Supranational Adjudication™, 341“5, 361. The e¬ect of non-government
organisations has been to assess the conduct of states ˜in terms of the binary code legal/illegal
regardless of any breach of traditional international law obligations™: Andrea Bianchi,
˜Globalization of Human Rights: The Role of Non-state Actors™ in Gunther Teubner (ed.),
Global Law Without A State (Brook¬eld: Dartmouth Publishing Co., 1997), p. 191.
169
See Rosalyn Higgins, ˜Role of Litigation in Implementing Human Rights™ (1999) 5 Australian
Journal of Human Rights 4“19, 10.
231 The return of universalist law


expressing a minority group sexuality contrary to state law can have recourse to
international norms expressed by expert international committees, indirectly
bringing about reform of state law.70 Human rights seminars have even become
eligible for inclusion in the mandatory continuing legal education for legal
practitioners in Australia and elsewhere. Human rights principles have become
a dimension of domestic legal practice, for example, in employment and dis-
crimination law.
Elucidation of human rights abuses has been reliant in large measure on non-
state organisations. Enforcement and policy formulation by states and interna-
tional organisations have been prompted by non-state lobbying, forcing states
to justify their conduct and even to intervene in trouble-spots which otherwise
they might have ignored (for example, in Kosovo and East Timor). Media
can also play a crucial role in this process, exposing atrocities and reporting
to obtain political e¬ect. This further illustrates the increasing reliance upon
non-state international legal actors, manifesting counter-hegemonic globalisa-
tion “ what social justice advocates might consider ˜good globalisation™. The
International Labour Organization and Amnesty International stand as two
examples of a trend which features the involvement of non-government organ-
isations (NGOs) in the development of human rights. NGOs increasingly inter-
vene as third parties in the European Court of Human Rights and the
inter-American courts of human rights. Some have observer status, for example
with the World Trade Organization. Although the activity of NGOs can be
traced in some operations to state consent, the NGO can sometimes overcome
national interests through limited formal control of the conduct of the NGO by
the nation. Instructions of the nation can be vague, open to interpretation and
subject to being ignored.71
How might we understand, historically, the institutional recognition of the
(in principle) equality of all humans? Twentieth-century human rights repre-
sent the secular ful¬lment of the eleventh century™s egalitarianism of all souls.
St Odilo of Cluny™s advent near the beginning of the Western legal tradition of
All Souls™ Day in the Catholic church recognised the common quest for all souls
to be redeemed, amidst a singular, Christian, European belief system. In this
˜Christian democracy™, all Christians in the church could pray for the redemp-
tion of the departed souls in a ritual without the exclusivity of All Saints™ Day the
day before, when prayers were o¬ered up only to the chosen few who were in
heaven.72 After the Protestant Reformations and the European wars of religion

170
E.g., see Carl F. Stychin, ˜Relatively Universal: Globalisation, Rights Discourse, and the
Evolution of Australian Sexual and National Identities™ (1998) 18 Legal Studies 534“57;
Robertson, Crimes Against Humanity, pp. 46“7; Henry J. Steiner and Philip Alston,
International Human Rights in Context: Law, Politics, Morals (Oxford: Oxford University Press,
2nd edn, 2000), pp. 18“53, and pp. 988“1081 regarding common norms and
interjurisdictional reasoning concerning issues such as political asylum, torture,
environmental degradation and remedies.
171
See Bianchi, ˜Globalization of Human Rights™, pp. 186“92.
172
See ch. 5, section 5.2.2, p. 101 above.
232 A Wholly Mammon Empire?


of the seventeenth century and the Westphalian settlement,73 ˜tolerance™ as a
concept was supposed to moderate Catholic and Protestant re¬‚exes which oth-
erwise impelled them to take steps towards ensuring the salvation of the
unorthodox.74 The French Declaration of the Rights of Man and Citizen recog-
nised freedom of religion and that certain types of humans were equal, depen-
dent upon their conformity to ˜the general good™, economically de¬ned. More
comprehensively, the UN Universal Declaration recognises, amidst the diversity
of belief systems, that all humans by virtue simply of their unquali¬ed bodily
existence are equal and entitled to rights. Thus we may now speak of the equal-
ity of all bodies having been achieved. For reasons given later in this chapter,
with this perhaps should come an acceptance, if not a welcoming, of the
inequality of souls in larger, more diverse societies which cannot reasonably
expect uniform beliefs. That is not, though, to dismiss the signi¬cance of reli-
gious and ethical traditions for the success of laws.
The presumption to be able to conceive rational principles such as human
rights and impose them on perhaps unwilling cultures raises an important issue
in the human rights ¬eld. Indeed, this is also a burning issue for any attempts
to advance a general, globalist jurisprudence.


10.4.3 Cultural relativism: universality versus diversity
Although human rights purport to be a universal appeal at a moral and logical
level, they are neither universally accepted nor universally practised.75 Critical
movements, some of which are described below, have objected to human rights
as, in e¬ect, plastering over the real structural problems of society, undermin-
ing radical change. Others resent human rights, in e¬ect, being parachuted into
non-Western territories like unwanted aid being dropped from aeroplanes.
Worse still, some think of them as bombs.
Feminist perspectives typically criticise human rights discourse for con-
centrating upon publicly orientated matters such as the behaviour of govern-
ment o¬cials, rather than characteristically private, household grievances such
as domestic violence.76 Martha Nussbaum, however, emphasises the need to
look critically at cultural inhibitions of what women (and humans generally)
can be and do both in advanced and developing countries, in universalist

173
On the religious settlement in the Peace of Westphalia, see ch. 6, section 6.4.1, pp. 139“41 above.
174
See, for example, John Locke, ˜A Letter Concerning Toleration™ in Ian Shapiro (ed.), Two
Treatises of Government and a Letter Concerning Toleration (New Haven: Yale University Press,
2003).
175
The critical issues are well canvassed in Upendra Baxi, The Future of Human Rights (New
Delhi: Oxford University Press, 2nd edn, 2006) and William Twining, ˜Human Rights:
Southern Voices: Francis Deng, Abdullahi An-Na™im, Yash Ghai, and Upendra Baxi™ (2006) 11
Review of Constitutional Studies 203“80.
176
On the complexity of these issues (by reference to the Chinese one-child policy, self-employed
women and ˜honour killings™), see Barbara Stark, ˜Women, Globalization, and Law: A Change
of World™ (2004) 16 Pace International Law Review 333“63.
233 The return of universalist law


terms.77 She suggests with vigour the compellability of universal rights, in prin-
ciple, by any honest cultural standard.
Non-Western cultures may criticise human rights discourse for emphasising
individualism compared with, say, Confucian communitarian principles.78
These are relevant criticisms. The bourgeois individualism re¬‚ected by human
rights discourse is to some extent inextricable from its most signi¬cant origins
in the French Declaration of the Rights of Man and Citizen. Another reason for
the individualistic emphasis of human rights after World War II was their
responsiveness to the oppression then recently su¬ered by individuals and
minorities at the hands of larger collectives, most notoriously the state Nazi
party.79 The logic of human rights is therefore susceptible to the (somewhat
obvious) criticism that it is historically and culturally based. Yet this does not
discount the prospect of universality. Some of these rights should be quite
capable of moral appeal to all cultures. Indeed, human rights standards are
being embraced at a regional level, an example being the African Charter of
Human and Peoples™ Rights of 1981, which cannot be dismissed as a Western
imposition.80 The question may be asked, as Peter Singer does: are certain prac-
tices elements of a distinctive culture worth preserving? For example, female
genital mutilation may be an aspect of a distinctive culture not worth preserv-
ing because this practice disadvantages and marginalises females.81
Valuing human rights and the sanctity of individual human life are obviously
not exclusively European norms. What today are thought about as ˜Western™
human rights may actually be as foreign to traditional Western societies as to
non-Western societies. Traditional Western societies, in particular those fea-
tured in this book in parts 2 and 3, had criminal justice systems in which torture
featured prominently at di¬erent times. European colonisation of the Americas,
Africa, Asia and Australia, not to mention the European fascist and communist
dictatorships, are conspicuous on the near horizon skyline of grotesque monu-
ments to inhumanity. Colonial Western powers have at times opposed rights.82
Islamic societies have in some respects been more egalitarian than Christian
societies, for example, earlier recognising the separate legal personality of
women (although women were not and are not equal to men under sharia
law) and being tolerant of other religions, particularly ˜People of the Book™.83


177
See Martha C. Nussbaum, Women and Human Development: The Capabilities Approach
(Cambridge: Cambridge University Press, 2000), esp. pp. 6“8 and ch. 1.
178
Records indicate that Confucius (and Aquinas) were considered in drafting the Universal
Declaration: see James A. R. Nafziger, ˜The Functions of Religion in the International Legal
System™ in Mark W. Janis and Carolyn Evans (eds.), Religion and International Law (The
Hague: Kluwer Law International, 1999), p. 166.
179
See Sumner B. Twiss, ˜History, Human Rights, and Globalization™ (2004) 32 Journal of
80
Religious Ethics 39“70, 42. See An-Na™im, ˜Globalization and Jurisprudence™, 17“18.
181
See Singer, One World, pp. 155“6.
182
See Twining, ˜Human Rights™, p. 22, drawing on scholarship of Yash Ghai.
183
See Abdullahi Ahmed An-Na™im, ˜Islam and Human Rights: Beyond the Universality Debate™
(2000) 94 American Society of International Law Proceedings 95“101, 98.
234 A Wholly Mammon Empire?


Human rights may well be a consequence of modernity, not any inherent
Western trait. On this view, the West just happened to modernise ¬rst, receiv-
ing phenomena such as television, modern science, modern industry and
modern communications, which would have a similar e¬ect on any culture.84
For human rights to work universally, all nations and states would have to come
as ˜equal strangers™ to the project of protecting human rights.85
Some things may be accessible to most, if not all, cultures. According to John
Finnis, there are, in psychology and anthropology, seven forms of human good:
life, knowledge, play, aesthetic experience, friendship, practical reasonable-
ness and religion.86 Although these forms will vary in content across cultures,
broadly speaking, they seem to capture universal tendencies. The cross-cultural
social practices will, of course, be di¬erent, but they will have their functional
equivalents falling within these categorical forms of good.
Most cultures can agree that every human being is sacred (although what is
taken to constitute a ˜human being™ can depend upon race, belief, gender and
other factors). More di¬cult is this question: are there things that ought to be
done for every human being? This is the question that the cultural relativist will
probably answer in the negative. That is, the right to have something done is not
the right of every human being to have that thing done for her or him. Where
the universalist appears to trump the relativist is on the question: are there
things that are bad for all humans? Clearly there are. Torture, arbitrary depri-
vation of property, deprivation of food, rape and ethnic cleansing are, of course,
bad for everyone. Less easy is it to ¬nd things which are good for all people,
although such goods do exist. They take the form of ˜motherhood™ principles.
A¬ection, co-operation, a place in a community and help in times of trouble
are examples.87 These universal norms may well be addressed di¬erently by
various political regimes; a liberal and a socialist might disagree as to the level
of help to be given to an individual in trouble.
Satisfactory resolution of these di¬erences in opinion appears to be possible by
accepting pluralism about human goods and even about non-core human rights.
According to Alice Tay, a former President of the Australian Commonwealth
Human Rights and Equal Opportunity Commission, ˜The process of identifying,
declaring and realising human rights is not unanimous or atemporal. Con¬‚icts
do and should arise as we continue our shared discovery of what it means to be

184
Lawrence M. Friedman, ˜Borders: On the Emerging Sociology of Transnational Law™ (1996) 32
Stanford Journal of International Law 65“90, 84“5.
185
Baxi, Future of Human Rights, p. 39.
186
See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980 reprinted
1992), pp. 84“90. For a philosophical attempt to reconcile partiality and diversity to belief in
universality, see Joseph Raz, Value, Respect and Attachment (Cambridge: Cambridge
University Press, 2001); for a theological attempt, in terms of di¬erent ˜modes™ versus
common ˜cores™ of ful¬lment, see Frank G. Kirkpatrick, A Moral Ontology for a Theistic Ethic:
Gathering the Nations in Love and Justice (Aldershot: Ashgate, 2003), esp. p. 72.
187
See Michael J. Perry, ˜Are Human Rights Universal? The Relativist Challenge and Related
Matters™ (1997) 19 Human Rights Quarterly 461“509.
235 The return of universalist law


human in an ever-changing world.™88 Indeed, Amartya Sen suggests that it is the
very interactive and dialogical processes of human rights discourse across
national boundaries which gives human rights their universal quality.89
Universality is inadequately contemplated in realist terms. Universality may be
considered a process, expressing visionary aspirations.90 ˜[U]niversality need not
be embodied in a single perspective™; decisions should not be restricted to a single
set of institutions or actors to solve problems.91 This seems to require a complex
of competing jurisdictions (even if ultimately a sovereign appellate hierarchy is
required for resolution). The manner and spirit of the confrontation of the
insider™s norms by those of the universalist outsider will be crucial.92 A new dis-
cipline of ˜international philosophy™93 based upon studies of ˜global history™94
might serve the purpose of education into such a discourse. Appreciation of
the contingency of cultural concepts, for example, about the nature of God,
divine inspiration and other beliefs about ultimate reality and meaning, will be
necessary.
In such processes of norm determination, the importance of education must
be recognised, re¬‚ected in the Universal Declaration of Human Rights. Even if
a court or tribunal is foreign to the pedigree of disputants or litigants, judges
should be steeped in their own traditions (acknowledging those traditions™ own
contested meanings) and also minimally learned in other ways, through a well-
rounded, empathetic education. At a core, functional, ordering level, it appears
important for everyone in society to attempt to appreciate the value of di¬erent
cultural norms which may in fact be reconcilable with one™s own. This would
be an ˜inclusive universality™,95 although requiring some work to arrive at
common denominators. A practical suggestion is o¬ered in the next section.


10.4.4 Reconciling logical and customary norms “ a global ethic
A major di¬culty with human rights is that, despite being morally under-
standable, they are logically conceived “ they are apprehended by the intellect “
with serious lapses in customary observance. Yet the incremental historical
acceptance of rights over centuries attests to the logically compulsive power of

188
Tay, ˜Human Rights™, 8.
189
Amartya Sen, ˜Elements of a Theory of Human Rights™ (2004) 32 Philosophy & Public A¬airs
315“56, 320.
190
Eva Brems, Human Rights: Universality and Diversity (The Hague: Martinus Nijho¬
Publishers, 2001), p. 15.
191
James Bohman and Matthias Lutz-Bachmann, ˜Introduction™ in James Bohman and Matthias
Lutz-Bachmann (eds.), Perpetual Peace: Essays on Kant™s Cosmopolitan Ideal (Cambridge, MA:
The MIT Press, 1997), p. 15.
192
Abdullahi Ahmed An-Na™im, ˜Problems of Universal Cultural Legitimacy for Human Rights™
in Abdullahi Ahmed An-Na™im and Francis M. Deng (eds.), Human Rights in Africa: Cross-
Cultural Perspectives (Washington: The Brookings Institution, 1990), p. 343.
193
Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge: Cambridge
94
University Press, 2002), [5.65]. On this initiative, see ch. 2, section 2.3.4, p. 42 above.
195
See Brems, Human Rights, p. 295.
236 A Wholly Mammon Empire?


human rights notions and their potential to be accepted customarily. Consider,
for example, advances made in what is now acceptable concerning religious
intolerance, slavery, colonialism and sexism.96
Especially when economics or Mammon is a major source of authority, it
is di¬cult to say that, no matter what the consequences, a human should not
be treated in a particular way. That is, it is di¬cult to treat humans always as ends
in themselves rather than as means to advance some other purpose. For example,
take war and capitalist enterprise. Respectively, the humanity of opposing sol-
diers and employees has to be subordinated to the greater purpose of victory and
pro¬t. In the face of the di¬culty or ˜casuistry™ of logical approaches to calculat-
ing possible consequences of sacri¬cing human rights to prevent a greater evil
(the consequences of which evils are generally unknown), Finnis suggests that
proper judgement should be exercised by respecting human good in one™s own
existence and in the human lives which might fall into one™s ˜care and disposal™.97
Logical and political calculations appear ill suited to the task of upholding
human rights.
Universal human rights remain too logical and abstractly political on the
Space Axis of the Space“Time Matrix. The commandments of the human rights
documents are directed primarily towards state governments. They contem-
plate strong, central states with vast resources “ ˜a kind of latter-day god, not
only omnipresent, omniscient and omnipotent, but also benevolent, as a
welfare state . . . should be™.98 Taken in isolation, this maintains the state as the
normative hub of social life, when what is needed is a more moral appeal to the
individual. Proclaiming human rights as the law of the state or as an abstract
rights discourse would seem to compound the problem of according responsi-
bility for human rights to something other than one™s self or immediate com-
munity. Something more personal and cultural is required. Human rights need
to engage with people at a deeper cultural and personal level. Abdullahi An-
Na™im proposes engagement at a religious level “ if not indeed with religions
themselves.99
To this prospect, a document initially drafted by Hans Küng may make a con-
tribution, entitled ˜Towards a Global Ethic (An Initial Declaration)™. Produced
by the Council for a Parliament of the World™s Religions for religious or ethical
peoples, it represents an ˜interfaith declaration . . . the result of a two-year
consultation among more than two hundred scholars and theologians repre-
senting the world™s communities of faith™.100 Contrary to the abstract logic of

196
Brian Slattery, ˜Rights, Communities, and Tradition™ (1991) 41 University of Toronto Law
Journal 447“67, 452.
197
See Finnis, Natural Law, pp. 225“6. Finnis does not regard natural law as rules narrowly
conceived by logic; he also admits culture and non-empirical modes of thought into his
calculus. See too pp. 3, 94.
198
Galtung, Human Rights, pp. 11“12.
199
An-Na™im, ˜Islam and Human Rights™, 95“6; and his ˜Universal Cultural Legitimacy™.
100
See Council for a Parliament of the World™s Religions, ˜Towards a Global Ethic (An Initial
Declaration)™ (Chicago, 1993) http://www.cpwr.org/resource/ethic.pdf (viewed 6 January
237 The return of universalist law


some human rights in a real-life context where people care little for humans
other than those who are familiar, religion for many is a particularly cultural
experience which is not necessarily grounded in high-order logic or rationality.
That is not to cheapen religion “ it may even be to appreciate religion more,
because life is so mysterious and complicated that a legitimate way to understand
life may be through a belief-system which is itself entwined with mysterious
events recollected from history. A more likely way to obtain adherence to abstract
rights such as human rights is to put them into the cultural, moral language of
di¬erent religions. The Global Ethic Initial Declaration seeks to do this. It may
be seen as a continuation of the political aspirations of the French Declaration
and the Universal Declaration. In addition, it addresses environmental degrada-
tion and economic inequality, advancing the unsuccessful attempts of those
widely received documents to tap into the moral, cultural sentiments of humans.
Such an option was not open to the framers of the Universal Declaration in the
latter 1940s, who had to avoid the language and concepts of particular religions,
in the important pursuit of rati¬cation amongst diverse cultures.101 Particular
corruptions of religion today, represented primarily by religious fundamental-
ism and terrorism, demonstrate the need to re-establish the original ethical con-
nections between cultural traditions and the Universal Declaration.
By way of a negotiated consensus (rather than a collection of rules which
satisfy the lowest common demominator), the Global Ethic Initial Declaration
contains the expression of familiar sentiments in the preamble. Where it departs
is by emphasising the interdependence of peoples. Although the Declaration is
intrinsically idealistic and it falls short of concrete political projects, its com-
mitment ˜to a culture of non-violence, respect, justice and peace™ has its target
in the most practical place for such a project: the interior space orientation of
the Space“Time Matrix. So, alongside the need for political action outside most
individuals™ immediate in¬‚uence, individual minds must be targeted to respond
to the challenges of the times “ through ˜meditation, by prayer, or by positive
thinking™,102 to change ˜the inner orientation, the whole mentality, the “hearts”
of people™.103 This takes the comradeship aspect of logical political pronuncia-
tions and seeks to entwine them into a moral, cultural kinship, by reference to
the failures of history and a vision for future peace acceptable to diverse cul-
tures. This can be demonstrated in the Initial Declaration text.
On the basis of personal experiences and the burdensome history of our planet
we have learned
• that a better global order cannot be created or enforced by laws, prescriptions,
and conventions alone;


2007) (˜GEID™); and generally Leonard Swidler (ed.), For All Life: Toward a Universal
Declaration of a Global Ethic (Ashland: White Cloud Press, 1999); William Schweiker,
Theological Ethics and Global Dynamics, in the Time of Many Worlds (Malden: Blackwell
101
Publishing Ltd, 2004), esp. pp. 14“15. See Twiss, ˜History, Human Rights™, 57.
102 103
Global Ethic Initial Declaration (GEID), p. 2. Ibid., p. 6.
238 A Wholly Mammon Empire?


• that the realization of peace, justice, and the protection of Earth depends on the
insight and readiness of men and women to act justly;
• that action in favor of rights and freedoms presumes a consciousness of respon-
sibility and duty, and that therefore both the minds and hearts of women and
men must be addressed;
• that rights without morality cannot long endure, and that there will be no better
global order without a global ethic.104 [original italics]

A balance is sought to be struck, on the Time Axis, between ˜[t]oo many old
answers to new challenges™105 and the ˜ancient guidelines for human behavior
which are found in the teachings of the religions of the world and which are the
condition for a sustainable world order™.106
In recognition of the World Revolution, the need is expressed in this new
phase of humanity to go beyond guarantees of freedom to ˜binding values, con-
victions, and norms which are valid for all humans . . .™107 The binding values,
to the Western mind, will be familiar. They consolidate several of the Old
Testament Ten Commandments and amplify them in empowering rather than
prohibitive terms. The fundamental command to treat every human humanely
is couched in terms of the golden rule108 and Kant™s categorical imperative:
˜What you wish done to yourself, do to others!™ This is supported by ˜irrevoca-
ble directives™. ˜You shall not kill™ becomes ˜Have respect for life!™ It follows that
animals and plants should receive care.109 ˜You shall not steal™ becomes ˜Deal
honestly and fairly™, with the onus on those with property to ful¬l the obliga-
tion which comes with property, namely a responsibility at the same time for
the common good.110 ˜You shall not lie™ is expressed in positive terms ˜Speak and
act truthfully!™ The ¬nal exhortation worth emphasis avoids specifying a doc-
trine of sexual immorality such as adultery in the Judeo-Christian tradition. It
turns ˜You shall not commit sexual immorality™ into a prescription to ˜Respect
and love one another!™111
Although the Global Ethic Initial Declaration is inherently idealistic, it
targets a vital aspect of human being and becoming. The thoughtful disciplin-
ing of individual minds via contextual, educational, moral, cultural prompts
is necessary in this regard, before precepts in the Universal Declaration
of Human Rights can receive the practical allegiance which they deserve as a
matter of political logic. This will require the reinterpretation of religious
precepts particularly with respect to the local, political, social and economic
circumstances of the communities of believers, not just at the theological
level.112

104 105 106
Ibid., p. 5. Ibid., p. 3. Ibid., p. 1.
107
Ibid., p. 4. This is recognised in Huntington, Clash of Civilizations, p. 320.
108
The ˜golden rule™ “ to love thy neighbour “ has equivalents in Islam, Zoroastrianism,
Confucius, Buddhism, Hinduism and the New Testament, to name a few beliefs: see H. T. D.
Rost, The Golden Rule: A Universal Ethic (Welwyn: George Ronald, 1986); Je¬rey Wattles, The
109
Golden Rule (Oxford: Oxford University Press, 1996). See GEID, p. 7.
110 111 112
See Ibid., p. 9. See Ibid., p. 12. An-Na™im, ˜Islam and Human Rights™, 96“7.
239 The return of universalist law


Elusive though unanimity about universal human rights across cultures
may appear, human rights discourse should still be pursued if su¬ering and
oppression are to be addressed systemically. Disharmony, of course, exists even
amongst fellow adherents of a common belief or purpose in the same church,
temple, mosque, company meeting, government department or university
administration. That is, no community of any size appears insulated from inner
con¬‚ict when it comes to articulating and interpreting core values. Liberal
Muslims, Christians and Jews may have more in common with each other polit-
ically than each of these liberal factions has with its fundamentalist counterpart.
A truly globalist ethic, which manages to embed human rights in a moral dis-
course of the equality of all human bodies, may well need to reject, in the polit-
ical realm, the underlying eleventh-century belief in the equality of all souls
subject to the same judgement. The idea of a common heaven, nirvana or par-
adise available only to particular creeds under particular godheads is a matter
which cannot be discussed purely rationally across cultures. The danger is that
attempts to project this judgement universally on all souls in di¬erent cultures
in the present world creates great violence for no apparent practical purpose.
Active care for the salvation of another, where it is not wanted, is at the crux of
religious intolerance, even though it can be motivated out of love of neigh-
bour.113 Such unwanted active care for the soul appears unhelpful. That should
not, however, deter the pursuit of the considerable commonalities which exist
normatively across religious factions and across religions more broadly. It is
possible to see ˜overlapping consensus™114 and perhaps even ˜overlapping faith™
about core elements of a just social order amongst the multifarious communi-
ties of belief in the world today. It will be necessary to attempt to harmonise that
earthly commitment with the supernatural beliefs of those religions where that
supernatural dimension is otherwise in con¬‚ict in the minds of some adherents.
Abstract, exterior ethical principles espoused by the modern constitutional
state, premissed upon tolerance, must ¬nd some way of attaching to the inte-
rior, cultural norm systems of the associations which make up not just the con-
stitutional state, but the world.115
The only way to reconcile logically, politically imposed norms such as human
rights with customary or culturally felt laws appears to be to have human rights
grow organically within the society. Simple tolerance of di¬erences may not be
enough, because that is to maintain a barrier preventing the di¬erent practices

113
See Jürgen Habermas, ˜Intolerance and Discrimination™ (2003) 1 International Journal of
Constitutional Law 2“12, 7.
114
On this term, see John Rawls, Political Liberalism (New York: Columbia University Press,
1996), lecture IV.
115
Cf. John Rawls, ˜Justice as Fairness: Political not Metaphysical™ (1985) 14 Philosophy and Public
A¬airs 223“51, 230. On the application of Rawls™s concerns for international but not global
justice (given the reliance upon state boundaries as natural), see his ˜The Law of Peoples™ in
The Law of Peoples with ˜The Idea of Public Reason Revisited™ (Cambridge, MA: Harvard
University Press, 2001); cf. Thomas Pogge, World Poverty and Human Rights: Cosmopolitan
Responsibilities and Reforms (Cambridge: Polity, 2002), esp. pp. 105“8.
240 A Wholly Mammon Empire?


and their people from being accepted. More than simple tolerance of the
di¬erent souls facing di¬erent perceived eternal judgements (˜tolerance™ imply-
ing the inferiority of the party being tolerated), an individual™s potential to
choose a di¬erent means of salvation should be respected116 (even if regarded as
incorrect). A world civil society, coexisting with other societies, needs to
develop as a culture in which plural cultures and values can grow, respectful
though of fundamental norms essential for human ¬‚ourishing. Some possibil-
ities for this growth include interactions through sport, business, civil rights
and health rights movements, education and the arts.117 In that way may other-
wise unequal bodies be viewed as equal, when one person can look across the
street and see another body of equal value on earth, regardless of appearance,
religion, belief or class “ or perceived spiritual destiny.118


10.5 Free trade
The normative reality of the emerging world society (amongst other societies)
appears to be attuned to the pursuit of economic prosperity, overriding, where
incompatible, the idealistic statements of human rights principles and eco-
logical awareness. The major economic agreement of the age, the General
Agreement on Tari¬s and Trade 1994 (GATT), constitutionalised (with powers
of rule-generation and adjudication) and expanded the earlier 1947 GATT. That
Preamble refers to ˜raising standards of living, ensuring full employment and a
large and steadily growing volume of real income and e¬ective demand™,
expanding production and trade.119 Environmental moderation is a feature of
the 1994 reference to the aim of ˜optimal use of the world™s resources™ as
opposed to the 1947 objective for the use of the ˜full resources of the world™.
References to human rights and the calamitous history of the twentieth century
are not included. Nonetheless, whilst not explicit, GATT must be viewed in
context as a response to the World Revolution. (GATT emerged at Bretton
Woods with the IMF and World Bank.)120 Political leaders chie¬‚y from the US

116
On compassion and hospitality as alternatives, see Martin E. Marty, When Faiths Collide
(Malden: Blackwell Publishing, 2005), ch. 6; and Conor Gearty, Can Human Rights Survive?
(Cambridge: Cambridge University Press, 2006), pp. 43“50. On openings for accommodation
within traditions, see Paul Knitter (ed.), The Myth of Religious Superiority: A Multifaith
Exploration (Maryknoll: Orbis Books, 2005).
117
See Mark Juergensmeyer, Terror in the Mind of God: The Global Rise of Religious Violence
(Berkeley: University of California Press, 2003), p. 247; Harold J. Berman, ˜Faith and Law in a
Multicultural World™ in Mark Juergensmeyer (ed.), Religion in Global Civil Society (New York:
Oxford University Press, 2005) and other essays in that collection; and generally, Akbar
Ahmed and Brian Forst (eds.), After Terror: Promoting Dialogue Among Civilizations
(Cambridge: Polity Press, 2005).
118
Cf. Francesca Klug, Values for a Godless Age: The Story of the United Kingdom™s New Bill of
Rights (London: Penguin Books, 2000). This need not involve abandoning private beliefs that
we have souls with di¬erent spiritual potentials. Contra humans as bodies without souls in
119
Gearty, Human Rights, p. 33. See Preamble, GATT, 1 January 1948, 55 UNTS 194.
120
See pp. 223“5 above.
241 The return of universalist law


were determined to prevent what they saw as mistakes in economic policy
during the interwar period. These mistakes included the Great Depression,
German reparations and damaging tari¬s and trade protection measures
choking international trade.121 They believed free trade would increase produc-
tivity and purchasing power for all.122
GATT provides ˜the common institutional framework for the conduct of
trade relations among its Members™ in matters relating to agreements annexed
to GATT,123 which include agreements on Agriculture, Textiles and Clothing,
Trade-related Investment Measures, Subsidies and Countervailing Measures,
and Trade-related Aspects of Intellectual Property Rights.124 The secularisation
of society evident in this economic rationalism is balanced by the installation of
sacralising economic ideology, now investigated.


10.5.1 The dogma
The modern economic orthodoxy can be stated by way of natural law princi-
ples. They coexist with the human rights natural law already discussed (the
interrelationship of which will be discussed in the next section).
Article I of GATT is the ˜Most Favoured Nation Treatment™ clause, which pre-
vents government import and export regulations from discriminating between
the products of other countries: ˜[A]ny advantage, favour, privilege or immu-
nity granted by any contracting party to any product originating in or destined
for any other country shall be accorded immediately and unconditionally to the
like product originating in or destined for the territories of all other contract-
ing parties.™125
Article III contains a prohibition against treating imports di¬erently from
domestically produced products: ˜[I]nternal taxes and other internal charges,
and laws . . . a¬ecting the internal sale . . . of products . . . should not be applied
to imported or domestic products so as to a¬ord protection to domestic
production.™
In a similar vein, quantitative restrictions such as quotas are prohibited under
article XI. Subsidisation of domestic products is sought to be limited under
article XVI.
Primarily, these rules are concerned with liberalising trade, establishing equal
import access to domestic markets (the ˜Most Favoured Nation™ doctrine)126
and reducing tari¬s whilst maintaining, in the nation-state, exemptions for
national security, health and morals (article XX).

121
See John H. Jackson, The World Trade Organization: Constitution and Jurisprudence (London:
Pinter, 1998), p. 15.
122
Paul Kennedy, The Rise and Fall of the Great Powers: Economic Change and Military Con¬‚ict
123
from 1500 to 2000 (London: Unwin Hyman, 1988), pp. 359“60. Article II.
124
See Annex 1, GATT.
125
For origins in the Peace of Westphalia, see ch. 6, section 6.4.1, p. 141 above.
126
For other historical origins, see ch. 6, section 6.5, p. 142.
242 A Wholly Mammon Empire?


Free trade may be understood by seeing what it was not, in the past. The fas-
cisms of Mussolini and Hitler were the subversion of liberal free-trade democ-
racy.127 As Nietzsche wrote: ˜In the market place nobody believes in higher
men™128 “ which may go some way to explaining the opposition of dictators of
all persuasions to free markets. The market is a mythical leveller of society
(although tycoons can breed new family nobilities with market control). The
absence of such Romance was the fodder used by Hitler to stir the Nazi reaction
to the deteriorating communal bonds of the growing economic and technolog-
ical society.
Super¬cially, as suggested in chapter 8, free trade may ironically require a
normative commitment to being unconcerned with normative commitment.
Such anomie is thought to be preferable to the market control exercised by
dictators. The association of liberalism with free markets does, after all, have
signi¬cant origins in the Enlightenment rejection of excessive authority and
arbitrary government. Hirst and Thompson opine that, as national politics
shifts the state™s attention away from business to leave the market to itself, pol-
itics becomes mundane given the centrality of the market to national life.129 For
critical commentators, this is thought to be a major aim of contemporary pol-
itics “ to leave the market to its own forces and to the experts in economic the-
ology. Yet the perceived decreased normativity of the market does not so
consistently ¬t with the immense increase in commercial legislation through-
out the world. Furthermore, the increased volume of legislation, at least in
Western jurisdictions, is believed to implement conditions for the desired type
of free trade normlessness to allow the market to ¬nd its way and to decide
social problems. This may be to substitute one type of normativity for a
di¬erent type of normativity “ one which is less socially conscious and histori-
cally minded.
Notwithstanding, there is more to liberalism than the ideological predispo-
sition to greed. Adam Smith™s eighteenth-century imagery of the ˜invisible
hand™ which co-ordinated market supply with demand was a reference at the
time to God™s supervision of the market. Similarly, we saw Edmund Burke speak
of the laws of the market as God™s laws.130 Liberalism may represent a staunch,
disciplined recognition of the intractability of typical moral and religious argu-
ments which ravaged societies before bourgeois revolutions. There is normative
value in the proposition that individuals do not have the right to assert that their
own conception of the good life is better than that of other individuals. Indeed,


127
See Davies, Europe, p. 949.
128
Friedrich Nietzsche, Thus Spoke Zarathustra: A Book for None and All, trans. Walter Kaufman
(Harmondsworth: Penguin Books, 1978), p. 286.
129
Paul Hirst and Grahame Thompson, Globalization in Question: The International Economy
and the Possibilities of Governance (Cambridge: Polity Press, 2nd edn 1999), pp. 262“3. They
further suggest that with the decreasing need for a concerted national ˜cultural homogeneity™
comes an increased opportunity for ˜religious, ethnic and lifestyle pluralism™.
130
See ch. 8, section 8.3, pp. 177“8 above.
243 The return of universalist law


there can be a range of competing conceptions of the good which can contain
norms and virtues favoured by liberalism,131 such as honesty, industriousness
and equality. The strength of this sort of liberalism is in its possibility for social
pluralism.132
By 1998, the IMF ˜had programs in no fewer than seventy-¬ve countries with
a total of 1.4 billion people; the list began with Albania and ended with
Zimbabwe™. The IMF and the World Bank preach and attempt to convert states
to an orthodoxy of ending government budget de¬cits, implementing the pri-
vatisation of public assets and the deregulation of markets, with programmes
for stable currencies, a relaxed hold on natural resources and opening markets
up to foreign capital.133 The World Bank may be ˜to economic development the-
ology what the papacy is to Catholicism, complete with yearly encyclicals™.134
The dogma has been called a ˜golden straitjacket™ by Thomas Friedman. The
tenets include: private-sector-driven economic growth, low in¬‚ation, price sta-
bility, decreasing state bureaucracy, balanced budgets if not surpluses, elimi-
nating and lowering tari¬s on imported goods, removing restrictions on foreign
investment, reduction of quotas and domestic monopolies, increasing exports,
privatising state-owned enterprises, deregulating the economy, eliminating
government corruption and allowing citizens a choice of pension options.135
These ideas connect with the so-called ˜Washington Consensus™ of ¬scal auster-
ity, privatisation and market liberalisation. They can be associated with a belief
in liberal democracy and rule of law.136 The economic theology is not without
its ¬‚awed assumptions. Demand does not always equal supply (for example, in
the labour market, where some unemployed persons simply meet with no
demand).137 As the state withdraws from the market, the state is nonetheless
required to regulate natural outgrowths of the market such as corporations and
monopolies. Also, markets often favour particular ethnic groups which are not
the democratic majority, leading to violence against those minorities.138
Developed liberal economies of today did not achieve their success through
obedience to Washington Consensus principles, which can have deleterious
e¬ects on developing countries.139 The so-called ˜East Asian economic miracle™
since the 1970s, for example in South Korea, Japan and Malaysia, suggests that

131
Amy Gutmann, ˜Undemocratic Education™ in Nancy L. Rosenblum (ed.), Liberalism and the
Moral Life (Cambridge, MA: Harvard University Press, 1989), p. 75.
132
Nancy L. Rosenblum, ˜Introduction™ in Rosenblum, Liberalism, p. 13.
133
van Creveld, Rise and Decline, p. 376. For critiques, see sources cited in n. 40 above.
134
M. Holland, quoted in Peet, Unholy Trinity, p. 111.
135
Thomas Friedman, The Lexus and the Olive Tree: Understanding Globalization (London:
Harper Collins Publishers, 2000), p. 105.
136
See Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and
Emancipation (London: Butterworths, 2nd edn 2002), pp. 316¬.
137
Stiglitz, Globalization, pp. 35, 53.
138
See Amy Chua, World on Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred
and Global Instability (New York: Anchor Books, 2004).
139
See Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective
(London: Anthem Press, 2002).
244 A Wholly Mammon Empire?


high economic growth and human equity can be facilitated by interventionist,
communitarian government. As the ˜Asian values debate™ considers, Western,
individualistic human rights may be less e¬ective than Asian values.140
Notwithstanding, development as such does appear to lead to increased
freedom.141 How to foster that development is the problem, given that develop-
ment and exploitation by other countries bears at least some responsibility for
the Third World predicament. The ˜fair trade™ movement warily seeks the bene-
¬ts of free trade, by easing the impact of development through prices which seek
to compensate the producers, with sensitivity to their social and natural envir-
onment.142 The UN™s Millennium Development Goals seek to foster ˜an open,
rule-based, predictable, non-discriminatory trading and ¬nancial system™, in
association with substantial improvements by 2015 in poverty, education,
health, gender equality and environmental sustainability.143 Whether, at present,
economic globalisation actually bene¬ts impoverished countries and peoples on
the whole is not clear. ˜Most likely™, according to Peter Singer, ˜it has helped some
to escape poverty and thrown others deeper into it.™144 Economic globalisation
must be considered with human rights to evaluate the dogma of free trade.


10.5.2 The discourse
The exceptions to the free-trade requirements of GATT lift the dividing wall
between international trade and human rights. Exemptions to free trade are
broadly contained in article XX of GATT.
Subject to the requirement that such measures are not applied in a manner which
would constitute a means of arbitrary or unjusti¬able discrimination between
countries where the same conditions prevail . . . nothing in this Agreement shall
be construed to prevent the adoption or enforcement by any contracting party of
measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health; . . .
(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic, historic or
archaeological value;
(g) relating to the conservation of exhaustible natural resources if such measures
are made e¬ective in conjunction with restrictions on domestic production
or consumption.

140
Rajagopal, International Law, pp. 212“16.
141
See Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999).
142
See Alex Nicholls and Charlotte Opal, Fair Trade: Market-Driven Ethical Consumption
(London: Sage, 2005).
143
See Je¬rey Sachs, The End of Poverty: How We Can Make it Happen in Our Lifetime (London:
Penguin, 2005), ch. 11.
144
Singer, One World, p. 100. Amidst a vast literature, see too Pogge, World Poverty (much more
can relatively easily be done) and Mathias Risse, ˜How Does the Global Order Harm the
Poor?™ (2005) 33 Philosophy & Public A¬airs 349“76 (identifying the institutional obstacles).
245 The return of universalist law


Morality-based examples of trade bans include Israel™s ban on the importation
of non-kosher meat products, the US government ban on obscene pictures,
bans on trade in body organs for valuable consideration, Thailand™s ban on the
export of Buddha images and sanctions against apartheid South Africa.145

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