A New Human Right--the Right to Globalization
Michael D. Pendleton
Copyright c 1998 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
A New Human Right–the Right to
Michael D. Pendleton
This Essay attempts to give globalization an ideology and suggests that global identity and
allegiance will use the law to establish these ideals. It argues that the principal tool will be
extensions via the legal device of human rights–an individual’s human right to globalization. This Essay
also argues that national allegiance and globalization cannot stand together. Today, national
allegiance is an anachronism and simply wrong. In the past, it was, in many cases, considered a virtue
and resulted often in the highest individual self-sacrifice for the common good. Human rights to
globalization, it is argued, entail at least the following rights: to international security; to trade
across national borders; to non-partisan dispute settlement that is incorporated across borders; to
free movement of persons across borders; and to hold dual or multiple nationality.
HUMAN RIGHT-THE RIGHT
Michael D. Pendleton*
Globalization appears to be an inevitable fact. How much
of the daily news is about the country of media publication or
broadcast, and how much relates directly or indirectly to other
countries? The high proportion of the latter remains much the
same, even in the most parochial of media. Globalization is
cause for lament for many. This author takes the opposite of
This Essay attempts to give globalization an ideology and
suggests that global identity and allegiance will use the law to
establish these ideals. It argues that the principal tool will be
extensions via the legal device of human rights-an individual's
human right to globalization.
This Essay also argues that national allegiance and
globalization cannot stand together. Today, national allegiance is an
anachronism and simply wrong. In the past, it was, in many
cases, considered a virtue and resulted often in the highest
individual self-sacrifice for the common good.
National allegiance is wrong today for the following reasons:
" it threatens our very survival by making war more likely;
" it is no different to racism;
" one cannot be a nationalist and act according to
individual conscience when the nation is under threat;
* it causes us to fail to take non-nationals seriously as
people, through the fiction and wrong concept of collective
* it is contrary to Christian and other religious teaching;
" finally, some nations have exclusive use of a
disproportionate amount of the world's resources.
Globalization offers a realistic vehicle for escaping from failed
nationalism to an expanded concept of global rights and duties.
* Professor of Law and Deputy Director, Asia Pacific Intellectual Property Law
Institute, Murdoch University, Perth, Western Australia.
Globalization is about far more than trade and commerce.
It is about individual identity, sympathies, and aspirations. What
gives globalization a realistic chance of working, however, is its
economic aspects. This economic potential is what gives
globalization power even against antagonistic national governments.
The case for a human right to globalization as presented in
this Essay stands or falls on the validity of three assumptions:
* reciprocity in international trade policy does not work;
" global markets are necessary for the same reason as
market economies, i.e., self-interest ensures efficiency; and
* globalization does not commodify people, rather it gives
people chances for survival and self-betterment that they
otherwise would not obtain.
Many see globalization through international trade as an
anathema to the development and dignity of persons by somehow
"commodifying" them. The villains are the multinationals.
To the contrary, this Essay argues that globalization rights
are the newest category of individual rights. They are akin to
natural rights from which human rights developed. They are
also akin to indigenous rights, ethnic minority rights, suppressed
nationality rights, and rights to a clean, bio-diverse environment.
This Essay maintains that we do not have any multinationals in
the world today, but badly need them in order to carry forward
Despite what it may seem, this Essay does not reject
citizenship per se. Citizenship involves a concern for neighborliness
and the common good, i.e., fundamental aspects of what it is to
be human. Rather, this Essay is about a redefinition and
expansion of citizenship concepts. Globalization is achievable, even
against the animosity of national governments, through the
concept of embryonic, though arguably existing, judicially
enforceable human rights to globalization.
Human rights to globalization, it is argued, entail at least
the following rights:
* to international security;
* to trade across national borders;
" to non-partisan dispute settlement that is incorporated
" to free movement of persons across borders; and
" to hold dual or multiple nationality.
Globalization, or at least internationalism, has been the
subject of scholarly discussion since the mid-eighteenth century. In
that century, the German philosopher Immanuel Kant wrote of a
"development of a universal community with cosmopolitan
rights."' More recently, Francis Fukuyama,2 writing in The End of
History defined globalization as "a centrifugal force, pushing
towards unification of the world, at the expense of national
sovereignty, . . . the development of a universal homogenous state
where all human needs are satisfied, and activity is primarily
economic."' Fukuyama also described the impact of globalization as
"a signal of death for nation states."'4
For the purposes of this Essay, globalization is defined as
Globalization. is the contemporary tendency for persons,
corporations and institutions to expand out of the confines
of a nation or civilization, towards participation in and
identification with a world community. This expansion takes the
form of. trade, investment, communications, culture, sport,
citizen affinities, law, and other contacts. There is an
attendant belief in the right and obligation to participate in
and identify outside of one's nation or civilization. It is
bound up with a conscious or unconscious skepticism of
nationalism, leading towards a rejection of patriotism as a
virtue. Overall, it tends towards the creation of a foundation
for a political basis for one world.
B. Globalization and NationalAllegiance Cannot Stand Together as
Evidenced by the Demise of State Sovereignty
Although theoretically based on sovereignty of the nation
state, international law is increasingly directed towards curtailing
the sovereignty of the nation state. International lawyers are
increasingly called upon to invoke this law, in their clients'
inter1. IMMANUEL KANT, ETHICS 253 (J. MacMurray ed., Louis Infield trans.
2. FRANCIS FUKUYAMA, THE END OF HISTORY 15-25 (1989).
3. Id. at 8.
est, against the nation states of which they are citizens. This
result is true of indigenous rights lawyers as well as for commercial
lawyers. Judges of national courts are called upon to give
judgment contrary to the interests, at least short-term interests, of
their country of origin. International tribunal members are
required to arbitrate fairly on disputes to which their country may
be a party. The nature of state sovereignty, the very basis for the
political and juridical concept of a nation, is evolving towards a
notion of non-sovereign, interdependent states.
Dr. Samuel Makinda has written of international
interdependence eroding national sovereignty and blurring the
distinction between domestic and foreign affairs.5
While there is no supranational institution that could take
away the power of sovereign states, many countries have been
constrained to different degrees by international
organisations and regimes and by other factors within the
international system, such as the emergence of environmental and
ecological problems that transcend state boundaries, rapid
improvements in the technology of communications and
transport, the fast growth in international institutions, and
increased interdependence. If interdependence is understood
as a situation whereby changes or events in any single part of
a system will produce some reaction or have some significant
consequence in other parts of the system, no sovereign state,
whatever its political or ideological orientation, can
successfully insulate itself against foreign influences in the modern
world. Interdependence has meant that the boundary
between domestic and foreign affairs is gradually being eroded
.... The erosion of state sovereignty through
interdependence and the above factors can be termed the subliminal or
creeping diminution of state sovereignty, and it tends to
affect all states, albeit differently.
Makinda also writes of normative constraints on state sovereignty
brought about by globalization that is largely a product of
Westernization of the globe.6
There have also been what could be termed normative
constraints on state sovereignty. These have come about through
the process of globalization, which to a large extent is a form
5. Samuel Makinda, Sovereignty and InternationalSecurity: Challengesfor the United
Nations, GLOBAL GOVERNANCE, 149, 155 (1996).
of Westernisation. This process naturally affects non-Western
societies more than Western ones. For example, in some
cases globalization has come about through the imposition of
Western values, norms, and standards on many states,
especially the developing countries. These "global" values, which
include important issues such as justice, liberal democracy,
individual liberties, free markets, and particular forms of
environmental objections, are not values that had been arrived
at through reflection and consensus in the world community.
They are the norms, rules, and standards that have been
promoted by the politically, technically, and militarily more
powerful Western countries.
Regardless of how they arose, global or universal values do exist, 7
even if the norms of conduct that reinforce these values are fluid
and change with time and context. Contemporary writers are
more circumspect than they have been in the past about
identifying their epistemology or ethical views, preferring the facade of
empirical deconstructionism, or scantly defined hermeneutic
theory. This author believes that global or universal values arise
from an epistemology and ethical theory based upon religious
Pursuing the same theme in another article, Makinda
observes the irony that while the leaders of the Western world have
moved some distance away from state sovereignty, Third World
leaders see the earlier formulation of sovereignty as a shield
against globalization and are championing sovereignty with
zeal. 9 "However, some Western values, such as sovereignty and
non-intervention in domestic matters are now held more firmly
by Third World leaders and their elites than by Western
7. The post-modern theory of Derrida, Focault, and Habermass and its
antecedents in Heidegger purport to deny universal values, though the thrust of the best of this
writing is to reinforce them in the language of another discourse.
8. SeeJOHN FINNIs, NATURAL LAw & NATIONAL RIGHTS (1984) (analyzing
contemporary theory of natural rights, which attempts to eschew normative prescriptive
9. Samuel M. Makinda, InternationalLaw and Security-Exploringa Symbiotic
Relationship, 51 AUSTRALIAN JOURNAL INTERNATIONAL AFFAIRS 3 (1997).
10. The irony is part of the success of Western civilization. In order to counter
contemporary Western trends towards globalization, the old Western concept of state
sovereignty must be employed. In this respect, John Roberts has long maintained the
thesis that there is no longer a Western civilization, rather it has become so ubiquitous
that its logic, culture, and rhetoric are everywhere employed, especially in maintaining
Part of the change in many individual world views, much of
which has gone unnoticed by individuals, is that not only does a
government lack legitimacy, but also the nation is not to be
regarded as sovereign where the fundamental human rights of its
citizens are ignored.
Makinda quotes the Commission on Global Governance,
which argued that
[s]overeignty ultimately derives from the people. It is a
power to be exercised by, for, and on behalf of the people of
a state. That view suggests that a country's sovereignty should
be respected only if the people of that state have had an
opportunity to exercise their fundamental rights.
Developments in international norms and practice have shifted the
focus of sovereignty from the government to the people of a
state, from Westphalian precepts to popular sovereignty.11
Globalization implies an inevitable loss of sovereignty to
international bodies, investors, and markets, but also to the ideals of
popular sovereignty that include self-determination, elimination
of poverty, economic stagnation, and regional and international
II. WHY NATIONALISM IS WRONG-CONVERSELY, A
A. FirstReason Why NationalismIs Wrong: GlobalizationAssures
Survival-NationalismAssures Global Conflict
The primary concern of all rational living things,
institutions, and commercial, cultural, and other actors is survival. War
is an ever-present threat to our own and our children's survival.
Its root causes are as inevitable as the last major conflict that you
or this author caused or encountered-perhaps with another
driver on the way to work, a spouse, a child, a parent, or a
neighbor. It involves our preference for self over others, or, when we
are in a group, the preference for our group over other groups.
By and large, we see it as wrong but it is part of our nature.
arguments for cultural integrity or indigenous identity. What seems clear is that the
story of Western civilization is now the story of mankind, because its influence is so
suffused that old oppositions and antitheses are now meaningless. The West is hardly
now a meaningful term, except to historians.
11. Makinda, supra note 5, at 16.
12. Id. These conclusions are based on Makinda's observation.
Those who see war and conflict as peculiar to capitalism,
patriarchal societies, or something totally manipulated by the
militaryindustrial complex, are simply naive, non-introspective, or slaves
of contemporary intellectual fashion.
Violence is often only a little distance away from all 'human
conflicts. This fact is also true with the nation state. We tend to
play down such things with the end of the Cold War and with
over fifty years free from major world conflict; however, nuclear,
chemical, biological, and now laser weapons, once invented,
cannot be willed or promised away by treaty.' 3
. Writing in the mid-nineteenth century, Leo Tolstoy' 4 wrote
that "[t] he root of war ... [is] the exclusive desire for the well
being of one's own people: it is patriotism. Therefore, to
destroy war, destroy patriotism." The interdependence of a family
minimizes the occasions when major conflicts can lead to
violence. The existence of a police force, punishment, and public
shame, as well as many other factors including the social justice
regime, mitigates violence arising from conflict within a nation.
Among nations, the more economically interdependent a state is
with another state; the less likely its interests will be advanced by
warfare. The corollary is that the more economically
independent a nation is, the more likely it might gain from war.
This argument was the premise articulated by M. Robert
Schuman, the post-World War II French Foreign Minister, and is
the basis of the Schuman Plan, which is the foundation upon
which the European Union was founded. Recognizing that
Europe had been plunged into two immensely painful wars in the
twentieth century, the 1951 Treaty establishing the European
Coal and Steel Community 5 ("Treaty of Paris") and the 1957
Treaty establishing the European Economic Community' 6
("Treaty of Rome") sought to integrate Europe. The coal and
iron industries of Germany and France were combined
especially, so as to make them economically interdependent and
13. One may ask rhetorically, "how long does it take to rebuild a weapons stockpile
when the economy is on a war footing?"
14. Leo Tolstoy, Patriotism or Peace, in ToLsToy WRITINGS ON CIVIL DISOBEDIANCE
AND NON-VIOLENCE 106-07 (1968).
15. Treaty establishing the European Coal and Steel Community, Apr. 18, 1951,
261 U.N.T.S. 140 [hereinafter ECSC Treaty].
16. Treaty establishing the European Economic Community, Mar. 25, 1957, 298
U.N.T.S. 11 [hereinafter EEC Treaty].
thereby render the necessity for war to advance vital national
interests as redundant.
A precedent for a New World Order is to be found in the
internationalism of the European Community, an institution
that despite its recent altercations over the implementation of
the Mastriicht Treaty' 7 and European Monetary Union
("EMU"), and the mass resignations of the European
Commission, has remained a stable body for over forty years. The key to
the European Union is that the general law-making powers
remain with Member States. The Treaty of Rome allows the use of
limited special powers 8 designed to bring about key objectives,
and any proposal by the European Council or the European
Parliament are to be implemented by the European Commission.
Some of these key objectives are the establishment of the free
movement of goods, services, and citizens of Member States.
The European Court ofJustice decides when Member States are
in breach of their treaty duties and can punish Member States
with fines. Even if the European Union reaches the full political
union that is now its stated aim, the Member States will still
retain much of the law-making powers. This result is typical of any
federation and is the case with the United States and Australia.
The institutions and dispute resolution processes of the
European Union could become, and to an extent have become, a
blueprint for the world.'
The world must become as interdependent, as engineered
as the European Union if another world war, perhaps our last, is
to be avoided. This interdependence is beginning with trade
pacts such as North American Free Trade Association
("NAFTA"), which follows European Union mechanisms,
without its objective of political union, which makes the European
Union unique. The World Trade Organization ("WTO") Treaty
draws heavily upon the European Union experience, as does the
Asian Pacific Economic Council ("APEC") to a lesser extent,
although APEC is a far less ambitious trade pact than NAFTA.
17. Treaty on European Union, Feb 7, 1992, O.J. C .224/1 (1992),  1
C.M.L.R. 719 [hereinafter TEU] (amending EEC Treaty, supranote 16, as amended by
Single European Act, O.J. L. 169/1 (1987),  2 C.M.L.R. 741 [hereinafter SEA].
18. These limited special powers are ever increasing by treaty amendments.
B. Second Reason Why NationalAllegiance Is Wrong: Moral
Arbitrarinessof Racism and NationalAllegiance
Some of the most successful early city states, e.g., Jericho,
Athens, Xian, and Rome, evolved beyond family, clan, tribe,
kingdom, and race to more complex polities with notions of
citizenship and empire. Nationality, as a concept, only came into
being in the eighteenth and nineteenth centuries. Race has
remained a most important criteria that people use to differentiate
themselves from others. Only in the latter half of this century
has the implication of the concept of nationality for race been
taken seriously. That is, discrimination on the basis of race is
inconsistent with the very concept of nationality, which uses the
differentia of citizenship, not racial group.
As we enter the third millennium, most of us insist that
civilized behavior outlaws discrimination on the grounds of race,19
gender, religious beliefs, or other morally arbitrary criteria. By
and large, however, most either agree or fail to consider that we
regard discrimination on the grounds of nationality as a morally
defensible criterion. Such discrimination, it is argued, is really
part and parcel of patriotism. Is it, however, defensible?
Should we feel that we have more in common with and have
a higher loyalty to those born within the borders of the polity,
which claims by its laws to be our country, than those outside it?
The patriot must answer in the affirmative. Nationalism or
patriotism means that the objects of our concern for others are
deemed by our government-all governments-to be fellow
nationals. As a nation, we may give aid and we may insist on
human rights, but those starving in Somalia-where their very
right to life is denied-will not rate higher than the domestic
unemployed.2" Is this merely an application of the adage charity
begins at home? Surely not. The adage means that we should
do charity when the opportunity presents itself, not wait for a
grand stage that we might conveniently never find." The real
19. Remember that the abolition of slavery only occurred during the last one
hundred and sixty years or so.
20. According to nationalistic persuasion, national unemployment figures will rate
higher than a Somali famine even after unemployed citizens have conducted a
genuinely fruitless, a overly ambitious, or a sham job search.
21. See Luke 10:30-35 (KingJames) (stating parable of Good Samaritan). By
spending his money on the injured Jewish traveler, the Samaritan had less money to aid his
fellow countrymen. Id. He contributed to the Jewish traveler because he was passing
reason for our differentiation between the Somali and the
unemployed national is the institution of nationalism itself. The
objects of our moral duty are not equal to persons to whom we
should owe a duty. We owe a higher duty to nationals than
foreigners. This principle is patriotism.
Many people in the nineteenth century, perhaps even
before that, felt profoundly disturbed by the institution of
slavery. They recognized slaves as human long before the
mid-nineteenth century when slavery was abolished, largely due to the
power of one nation's navy and its ability to impose its will on
other nations. Someone, somewhere must have said what they
felt about slavery; they or others wrote and publicized these
views, and so this perception gained momentum.22 The same
process is occurring with nationalism.
Similarly, the view that patriotism is no longer a virtue is far
from revolutionary. Leo Tolstoy condemned patriotism as both
stupid and immoral... [It is stupid] because if every country
were to consider itself superior to others it is obvious that all
but one would be in error .... [Patriotism] is immoral
because it leads all to possess it to aim at benefiting their own
country or nation at the expense of every other.23
Tolstoy argues that patriotism is opposed to the
fundamental ideals of morality.
How can patriotism be a virtue ... [w] hen it requires ... an
ideal exactly opposite to that of our religion and
moralityan admission, not of the equality and fraternity of all men,
but of the dominance of one country or nation over all
others? Morality requires that we take seriously the interests
of all people, not simply those of our fellow citizens.
Patriotism involves an exclusive interest in members of one's
national group and gives no or little moral weight to the
interests of others. 24
Almost a century later some people are beginning to believe that
patriotism is only now, but was not in the past, a betrayal of our
this man and he realized that the traveler needed help at that time. Id. The fact that
the man was a foreigner is a part of the story that we perhaps have not really thought
22. No doubt they felt intimidated and felt that the exercise may have been a waste
of time, though they must have persisted.
23. See Tolstoy, supra note 14, at 75.
human family-the perfidy of patriotism. Patriotism was, until
recently, considered a highly moral form of action whereby we
serve and protect our neighbors. Much selfless service to others
was sacrificed in the name of patriotism. Nothing can detract
from that sacrifice. The author is proud of his paternal
grandfather who died in the battle of Britain and his maternal
grandfather. Ironically, his mother ' was German. Patriotism requires
such matters, even a mother's birthplace, to be set aside in times
of conflict. It necessarily requires that we prefer our nation and
our fellow citizens to other nations and other people, even if
they are family. This preference, like a preference for a race,
gender, or religion, is morally arbitrary, i.e., there are no valid
grounds to base differential treatment and as such is morally
We are, it is suggested, forced to disregard rejecting our
nationality outright, though we can and should make known our
objections to the status of a nation as a sovereign state. To reject
nationality outright would allow widespread chaos and civil
disobedience of which many would be tempted to take advantage.
For example, one might refuse to pay his or her taxes because
the taxes are being used to pay subsidies to logging companies
or mining companies, or to pay for abortion clinics. You might
refuse to sit on a jury because you think the legal system is
corrupt. The end result is a dangerous creeping anarchy, and
remember most of us, or at least the author, have dismissed
anarchy as a naive rejection of the fact that we humans are constantly
tempted to take adyantage of one another.
No one asked us, however, whether we wanted to be a
citizen, so denying our citizenship is not a real option.25 The
avoidance of quasi-anarchy requires that we continue to accept our
nationality in the same way that we are forced to accept market
economies. Accepting market economies, however, does not
stop us from advocating mitigating its excesses by the creation of
a adequate safety net, usually in the form of welfare. In the same
way, nationality should not stop us from advocating the
evolution of nationalism to orderly internationalism. One way to do
this is through the development of international law with the
25. Stateless persons are a special class of persons in international law who suffer a
great many disabilities, not the least of which is that they have no legal right to reside
anywhere on this planet.
ultimate objective of whittling away at sovereignty until it
1. Views on Patriotism
Leo Tolstoy, the first anti-patriot, may have inspired the
naive internationalism of the Soviet COMINTERN. Since then,
much more sophisticated views have emerged. Three writers
represent the extreme view on the relationship between
patriotism and moral conduct. There appears to be three schools of
thought in the literature that may be termed hard-line
patriotism, moderate patriotism, and anti-patriotism. The most
persuasive is moderate patriotism. Is it possible to be a patriot and have
real concern for non-nationals?
a. Hard-line Patriotism
Alastair MacIntyre,16 a hard-line patriot, argues that there is
no conflict between patriotism and morality as Tolstoy has
described it; rather there is a conflict between two different
considerations of morality. While some moral systems may require the
worth of all persons to be considered equally-such as a
universalist conception of morality-patriotism is a particularist
conception of morality where only the worth and interests of citizens
are to be considered. It emphasizes personal bonds and the
moral significance of membership in a particular group. For the
patriot, universalist conceptions of morality are insufficiently
attentive to the importance, of personal bonds and loyalties.
MacIntyre argues that it is impossible to construct a moderate
patriotism, a convergence of particularist and universalist
Patriotism thus limited in its scope appears to be
emasculated, and it does so because in some of'the most important
situations of actual social life either the patriotic standpoint
comes into serious conflict with the standpoint of a genuinely
impersonal morality or it amounts to no more than a set of
practically empty slogans.2 7
MacIntyre is suggesting that if moderate patriotism makes loyalty
subservient to universalist morality, then it is empty. "The
stand26. Alastair MacIntrye, Is Patriotism a Virtue?, Lecture at University of Kansas
point of impersonal morality requires an allocation of goods
such that each individual person counts for one and no more
than one, while the patriotic standpoint requires that I strive to
further the interest of my community and you strive to further
those of yours. 28
When survival or other large interests are involved,
"patriotism entails a willingness to go to war on one's community's
behalf. ' 29 From MacIntyre's perspective, moderate patriotism is
but an empty expression of patriotism that instantly evaporates
in the heat of the tragic conflicts that recur in the real world.
b. Moderate Patriotism
Macintyre's views are rejected by Stephen Nathanson who
seeks to make out a case for moderate patriotism. He prefaces
his discussion with the sensitive observation:
It appears, then, that one must either except patriotism in
spite of its undesirable features or place oneself in the role of
an outsider, whose claims about the national welfare have an
uncertain status. The result for many is a chronic form of
discomfort and a hope that the subject of patriotism can be
kept out of political discussions. Ms
Nathanson defines moderate patriotism as preference,
presumably in action, for one's nation, its traditions and institutions, and
for one's fellow nationals, but within the limits of morality,3 1
provided that one does not violate the "legitimate needs and
interests of other nations" and their nationals.3 2
Paul Gomberg, an anti-patriot, in turn rejects Nathanson's
moderate patriotism. Gomberg's principal argument is that
patriotism cannot be meaningfully distinguished from racism.
30. In Defence of ModeratePatriotism,ETmics, Apr. 1989, at 535.
31. Consider the actions of the moderate patriot in the light of criticisms of the
rescue effort by U.S. Marines after the recent bombing of the U.S. Embassy in Nairobi
and Tanzania. It seems that little was done to assist the Kenyan emergency services,
which were occupied in the collapsed building adjacent the embassy. Even the Kenyan
president, Daniel Arap Moi, was apparently prohibited entry to the U.S. Embassy in the
aftermath of the bombing on the grounds of a perceived security threat to U.S.
32. Id. at 538.
Race is not a morally acceptable ground to differentiate between
persons. I take it that we all, save the National Front in Britain,
Jean Marie Le Penn in France, the One Nation Party in
Australia, and the Klu Klux Klan accept that. If that is true, then how is
nationality different to race-both were accidents of birth."3
Gomberg argues that moderate racism is as unacceptable as
racism. He also argues that Nathanson's thesis really means that
what the moderate patriot would do, is no different to what the
moral universalist would do. In this sense he has failed, says
Gomberg, to differentiate moderate patriotism from
Alistair MacIntyre's argument is that in conflicts between
nationalities, the moral universalist will not be patriotic.
Nathanson's reply is that in conflicts between nationalities, the
moderate patriot will act differently from both the unpatriotic moral
universalist and the non-universalist patriot.
The first example is the conflict between nations over
resources, typically a nation's land, products, and often
population. In the extreme case, the way of life of a national
community might be at stake. Some claim that this example is often
hyperbole, i.e., does the U.S. way of life depend on imported
MacIntyre claims that the patriot will fight for the national
community, while the moral universalist will not. Nathanson
replies that moderate patriots will follow a third course, seeking a
just compromise between nations, but supporting their nations
when and only when such compromise is impossible or conflict
is unavoidable. With this course, the moderate patriot puts his
condition in both ways.3 5
Gomberg argues that in reality, the moderate patriot will
often remain neutral, a condition that is not patriotic. Gomberg
concludes that for a moral person in today's world, the only
option is to struggle against patriotism and nationalism36 in the
same way that a moral person should struggle against racism.
33. Some may say that talents, abilities, nationality, and race is part of a divine
plan. This author will not accept that a Creator intended misfortune for some
individuals, rather that people were given the opportunity to ameliorate their misfortune.
34. This statement was written before the Gulf War, although that war was a U.N.
35. Id. at 541-42.
36. Id. at 150.
2. Views on Racism
But what is wrong with racism? As we have seen the
traditional answer is that it is morally arbitrary, i.e., it provides no
good reason for discriminating between people. This reason
can be further analyzed. A common method of discriminating
between people is to suggest that a particular race has certain
racial characteristics, for example, blacks are lazy. Such group
generalizations are common to nationality as well, e.g., the
English don't wash, the Irish are stupid, and Australians are crude,
but "matey." But it does not end there. It is common to
generalize about the characteristics of women versus men. Women are
sensitive, men are not. What all such generalizations do, though
they may contain a grain of truth, is to fail to take seriously the
individuality of people, be they of a particular race, nationality,
or gender. Taking human individuality seriously, this ironically
entails a recognition that humans have more in common than
difference: they feel pain; need to eat and drink; seek a sexual
partner; desire a plan for their lives, family, and group; seek to
be loved and to love; and seek to belong to a group or groups.
People everywhere are familiar with the word morality despite
some post-modernist claims that the word is meaningless.
This rationale then is the reason why racism and sexism are
morally wrong. They fail to take seriously human individuality
and the common core attributes of individual humanity. The
suggestion is that nationalism is essentially the same. Patriots
must believe their nation is a more deserving recipient of their
loyalty than other groups. They do not take seriously the
individuality and humanity of their nation vis-a-vis the members of
It is not then surprising that contemporary affairs feature
indigenous identity, ethnic minority, and suppressed nationality
issues. These ideas are not pulling away from trends towards
globalization. On the contrary, part-of recognizing human
individuality, and the underlying reason for elevating human
identity issues and globalization trends, is to recognize the impact on
individuality of belonging to an indigenous group, .ethnic
minority, suppressed nationality, or indeed the world community. It is
a question of taking individuality seriously. Part of an
indigenous group's, ethnic minority's, suppressed national's, or indeed
ordinary citizen's identity is shaped by the perception of
membership of the group, which includes the world community.
It is also natural for people to worry that peoples such as
indigenous groups should recognize that their indigenous rights
are based on recognition of their individuality, not their race as
such. Rightly, we fear and reject race-based rights. Perhaps this
rationale is why many today feel some antagonism at indigenous
and like issues and helps explain why the "One Nation Party" in
Australia phenomenon has capitalized on this misconception.
C. Third Reason for Rejecting NationalAllegiance: Collective
Responsibility Assumption of Nationalism Is Contrary
Another reason for rejecting patriotism is that it requires
citizens to be responsible for their government's actions
irrespective of whether the citizen lives in a functioning democracy
or whether they approve of the government's actions. The most
arbitrary aspect of war is the notion of collective
responsibilitya notion rejected in the justice systems of most countries. A
soldier might well have become the best friend of the person that
he is about to kill, yet he is to be killed because his government
is at war with his opponent's government. Individuals are not
responsible for the actions of their relatives, employers are
generally not responsible for the crimes of their employees, and
members of clubs are not responsible for the non-club activities
of fellow members. Yet citizens, including those living in
nondemocracies, are held accountable for their government's
actions. This is a legal and political fiction because countries, even
collective consciousness cultures such as China, are made up of
individuals, not an amorphous mass. While the management,
and in extraordinary circumstances, sometimes the members of
institutions, can be held collectively responsible in domestic law,
their members are not killed for it.
What can we, as mere individuals, do in these
circumstances? Most problematic for us is whether, if our country
decides to use violence against other countries, e.g. in self-defense,
we should refuse to participate and thus be branded traitors.
What ideology justifies non-participation if we are not pacifists?
D. FourthReason for Rejecting NationalAllegiance: Some Nations
Have DisproportionateControl of World Resources
The author is currently a resident in Australia, which has a
population a little larger than the number of babies born each
year in China,37 yet this country controls roughly eight percent
of the world's natural resources. The population of China is
roughly twenty-five percent, or one-fourth the people on the
earth. Well-endowed countries treat these resources as their
own absolute property. Can this be just? Many nations' tax
systems are premised on the notion of progressive tax rates, i.e., the
more that we earn the larger the proportion taxed and
distributed to the general welfare. Are we not trustees of a proportion
of "our" natural resources on behalf of the rest of the world? If
so, how is this to be translated into action? Aid programs, like all
institutional solutions, are based, theoretically, on altruism and
do not work in the long run. One workable solution is to allow
anyone to invest in any other country's natural resources.
E. Fifth Reason for Rejecting NationalAllegiance:
Christianity has been used over the centuries, yet before a
rightly more skeptical audience today, to justify many practices
from the persecution of an entire race of people to capital
punishment, from the so-called just war to the more vicious forms of
capitalism and the subjugation of women. Given the central
message of Christianity, it seems that a good test of authenticity
is whether its interpretation accords with this central message of
a compassionate and selfless love. Applying the test of the
central message of Christianity, love of neighbor, and bearing in
mind the divisions in society that existed in the first century,
what do you make of St. Paul's words that in Christ "[t] here is
neither Jew nor Greek, there is neither bond nor free, there is
neither male nor female . "...T"3h8is view of the world is not
37. China has a population of 1.2 billion people. Its population growth rate,
factoring in the death rate, is one percent. Thus, twelve million babies a year are born in
China. This result is, in fact, Zero Population Growth, which is largely due to the one
child policy. A statistical survey of China in 1998 does not give a head count of babies,
but birth rate times population suggests those 1997 births were 20,484,828.
38. Galatians3:28 (King James).
confined to Christianity, but is perhaps most starkly articulated
III. THE CASE FOR GLOBALIZATION HEREIN STANDS OR
FALLS ON THE VALIDITY OF THREE ASSUMPTIONS
As stated in the Introduction, the case for globalization
traced in this Essay stands or falls on the validity of three
assumptions. The first is that reciprocity in international trade policy is
self-defeating. The second is that global markets are necessary
for the same reason as market economies, i.e., self-interest
ensures maximum efficiency. The third reason is that globalization
does not commodify people-rather it gives them a chance that
they otherwise would not have to survive and prosper.
A. FirstAssumption of the GlobalizationArgument: Reciprocity in
InternationalTrade Policy as Self-Defeating
According to teleological ethical theory, one form of which
is utilitarianism, an action or rule is wrong if it fails to provide
the greatest benefit 9 to the greatest number. 40 Even assuming
the persons to be benefited are citizens, national trade policy
that seeks to make trade concessions to other nations only in
return for reciprocal concessions fails to raise living standards
and is self-defeating. Some of the strongest reciprocal trade
policy proponents are developing countries, though they are not
alone. A developing country is by definition one that has
insufficient access to capital to facilitate development. If such a nation
refuses to allow domestic market access to foreign traders and
investors on the ground that reciprocal access is not available to
them in those foreign states, then they have satisfied national
pride but deprived themselves of opportunities to gain foreign
capital-the one commodity that they must have if they are to
Hong Kong is a good example of a territory where the
opposite policy of unilateralism was adopted from the beginnings
of British rule in the former colony-now special Administrative
Region of China. In fact, the policy, in regard to investment,
39. Utilitarians differ on whether it is benefit, happiness, edification, or, even
Jeremy Bentham's initial formulation, pleasure.
40. Another problematic area is who are to be counted in utilitarian theory, i.e.,
citizens, foreigners, the environment, the biosphere, etc.
FORDHAMINTERNATIONAL LAWJO URNAL
C. Third Assumption of GlobalizationArgument: GlobalizationDoes
Not Commodify People-RatherIt Gives Them a Chance that They
Otherwise Would Not Have toTrade and Survive
Aid recipient countries are the very countries that tariffs,
subsidies, and other trade barriers are principally directed
against. Textiles from Bangladesh, Somalia, or Laos cannot
compete in most developed country markets because about
twenty percent or more has to be added to the cost of their
products as an import duty. This situation exacerbates economic
conditions at home and attenuates the need for aid.
So too do "Buy the Flag" campaigns of many developed
countries. Huge amounts of public funds are spent to promote
"Buy American Made," "Buy European Made," "Buy Japanese
Made," or "Buy Australian Made." These campaigns are a form
of trade distortion and rob poor countries of markets.51 If the
Chinese made the best kettle or toaster at the best price and the
decision to buy the flag is made on patriotic grounds, then the
best product is denied a market. If the poor country produces
the best products yet still cannot sell, then its likelihood of
needing humanitarian aid in the near future is greatly increased. It
might implore the rich world: "What can we do? You will not
allow us to sell our goods!"
Oddly, donor countries are willing to help with the plight
they have helped create: Decency together with electoral
concerns require many nations to be seen to aid developing and
under-developed nations and to respond to emergencies such as
famine and disaster relief through international humanitarian
aid. Some countries pay as much as one percent of their gross
domestic product ("GDP") to international humanitarian
51. Paul Gomberg, Patriotismis Like Racism, ETHICS, Oct. 1990, at 149. A different
argument can be made against patriotism that is not directed against oppressed
nationalities. Consider the statement "Buy American!," which is certainly presented as a
patriotic duty. Now, if directed against Philippine, Brazilian, or Chinese imports, the earlier
argument applies. Suppose it is directed againstJapanese imports. Here, the Japanese
are regarded as both privileged and unfair, although the main consideration offered in
favor of this imperative is common national interest. This imperative, however, may
contribute toward a climate of war, as did similar movements toward national autarky in
the 1930s. Anti-Japanese sentiment in the United States has already been reciprocated
in Japan. The effect of the imperative "Buy American!" is likely to be increased national
aid 52-Australia pays only 0.1% of GDP. Of this amount, a large
proportion is paid to successful Australian companies who
tender aid contracts, e.g. the Thailand bridge prioject. In fact,
our own Asia Pacific Intellectual Property Law Institute was paid
a grant by AUSAID in 1996 to present a course of lectures on
intellectual property to the Vietnamese Office of Innovation
("Patent Office") in Hanoi and Ho Chih Minh City. In our own
case, there was definitely no one in Vietnam who could have
done thisjob. In many areas, however, the recipient country has
an entity that can do the job, yet notwithstanding, the job goes
to a company of the donor country. Recently in Australia, the
Howard government, probably with the acquiescence of the
opposition, announced that aid contracts will be restricted to
tenders from Australia, thereby inevitably making the job more
expensive and curtailing the total amount of the aid budget. It
also excludes recipient tenderers. The argument that this is
necessary to contain corruption is unsustainable as funds can be
released on a progress payments basis or thorough other
By far, the most effective form of international
humanitarian aid is to allow recipient nations unfettered access to local
markets so they can sell the fruit of their labors. Oddly again,
when this threatens to happen, the political rhetoric of all
parties-one nation is not alone here-is in terms of exploited
labor in Asian sweatshops that threatens local employment.
Exploited.as they may be and sweaty as they are, they at least give a
promise of life, the most basic of all human rights and one of the
IV. AN IDEOLOGY FOR GLOBALIZATION INDIVIDUAL
RIGHTS-THE COMMON BASIS FOR GLOBALIZATION,
INDIGENOUS, ETHNIC MINORITY, SUPPRESSED
NATIONALITIES, AND ENVIRONMENTAL ISSUES
A. Rights Language and Law
Rights and their supremacy are the lifeblood of modern law.
They are essential to the law's role in protecting against abuse,
52. AUSTRALIAN GOVERNMENT DEPARTMENT OF FOREIGN AFFAIRs & TRADE, REPORT
ON FOREIGN AID (1996).
53. We should have had to tender, however, against foreign intellectual property
though this rights supremacy has created a number of problems
in relation to what is moral conduct. If one has or ought to have
a legal right, then it does not automatically mean one ought to
exercise it. Moral codes invariably elevate the community,
group, or common good over individual rights. Moral conduct
often requires the legal right holder to give way, or in Confucian
terms, yield. Herein lies the reason many countries in Asia
regard Western culture as diseased. When this is used as an excuse
to deny rights in Asia,54 the West is rightly critical. All of this,
however, is another matter. It is important to express rights.
Rights are essentially claims that have a large degree of
acceptance, though not universal acceptance-witness free speech.
Such rights may or may not become legal rights. Free speech is
not a legal right in Australia, though a right of free political
speech may be. But rights language itself is relatively new. The
grammar of human rights has had an enormous influence on
the way that we think. In the past, citizens were the subjects of
governance. They had duties, but until Thomas Jefferson's
Declaration of Independence, there was not even an intellectual
notion of rights, except in the natural rights usage, which was
heavily dependent on a shared theology and acceptance of our place
in the world. Today, we believe that we, as individuals, are the
objects of governance and that we can legitimately assert claims
against those who govern us. This belief is an enormously
changed perspective, and it explains what is shared with
indigenous rights, suppressed national minority rights, and
globalization. These perspectives are not conceivable without the
concept of rights. Like indigenous rights and suppressed national
minority rights, globalization begins with individual, not
national, rights and embraces other rights that have commercial
ends. Many of these rights are sought to be implemented
through the concept of national treatment.
National treatment requires a nation to treat foreigners no
worse than it does its own citizens. National treatment stands in
distinction to reciprocity-we treat your nationals in the same
way that you treat ours. In the long term, the principle of
national treatment will be made justiciable at the behest of
individ54. See K. Mahbubani, Live andLet Live: Allow Asians to Choose theirOwn Course, FAR
E. ECON. REv., June 17, 1993, at 27 ("There is no unified Asian view on human rights
and freedom of the press. These are Western concepts.")
uals across a wide range of international treaties: from security
to environment to international unionism to a guaranteed daily
calorie intake for all people. National treatment has great
promise for spreading the wealth of Western democratic states to the
rest of the world-the majority of our species. The section
below deals with a number of categories of rights.
B. Human Rights
We talk freely today of human rights,55 the descendant of
Jeffersonian natural rights, and implicitly thereby deny the right
of otherwise sovereign states to abuse the human rights of its
citizens. Though I know little of this important area of law, I do
know it has grown in importance since the Universal Declaration
of Human Rights in 1948.56 Now, it is of daily concern to
national leaders. The constituents of democratic nations demand
their politicians to take these rights seriously. We have also seen
these demands, abused by governments seeking to promote
sectoral trade interests, disguised as human rights concerns. We
have witnessed a proliferation of detail in international
instruments detailing fundamental human rights. Discrimination law
is endemic to virtually every developed country. We have seen
an embracing of the old Marxist critique of human rights,
namely that they are only concerned with rights to do acts, free
speech, assembly, etc., and will see the beginnings of an attempt
to provide basic rights from evils like poverty, illiteracy, disease,
etc. It is unlikely that a guaranteed international basic wage
could ever be achieved in the absence of an international
currency, an international central bank, and a variety of other
economic preconditions. There is, however, no reason in principle
why we could not realistically achieve international agreement
on a guaranteed daily calorie intake for all humans. The United
Nations Right to Food concept is a start.
C. Indigenous, Ethnic Minority, and SuppressedNationality Rights
The basic premise of this Essay is that the movement from
national to global loyalty is based upon individual rights and
responsibilities. This premise is derived from the same basis for
the concern for indigenous and ethnic minorities, suppressed
nationalities, the right to a clean and bio-diverse environment,
and the right to commercial freedom.
It is unrealistic to allow an international agency access to all
alleged human rights abuses. For example, an Australian citizen
might seek to impugn, before an international agency or court,
the allocation of resources by the Australian government to
Aboriginal people when equal resources were denied to
nonAboriginals. Irrespective of whether the complaint is held
justified or not, the degree of international intervention is too
intrusive for governments. International review of budgetary
allocations for disadvantaged groups is unlikely to progress the
interests of the disadvantaged or globalization. Regrettably matters
such as health are largely fiscal in nature.
But this is not true of large scale abuses of human rights
such as indigenous demands for specific recognized rights such
as land rights, non-discrimination, and the like. Similarly, the
near genocide in Africa and the Balkans is a recent example. So
too, examples include the massacre of students in Tiannamen
Square, the expulsion of Asians from Uganda on the basis of
race alone, or the attempt to make indigenous people
trespassers on their own land. These incidents involve large numbers of
individual human rights abuses and could meaningfully be dealt
with by international agencies.
D. Environmental Rights
Prohibiting the degradation of the environment in such a
way that it has spillover effects beyond national boundaries
might be thought uncontroversial. It is not. What would
happen to a very poor country with not enough resources to feed all
its population? Surely, it should be allowed to choose that it is
better to deplete rainforests than allow its citizens to starve. Why
should not such a country be allowed to locate toxic industries
within its borders, knowing they will cause premature death to
citizens and neighbors alike, yet the income so generated will at
least let all live for some period when otherwise many would be
doomed to infant death. These realities are the stark choices
that make so many undeveloped countries angry at the
moralizing of rich country environmental activists. Yet, the activists are
right in that such degradation of the environment must not be
allowed, otherwise our planet may be destroyed for all people.
Somehow, the mechanism has to be worked out whereby rich
countries pay poor countries not to exercise their option to
degrade the environment. The right to degrade the environment
with spill over effects beyond national boundaries must be
denied to all nations alike. The recent Hydrocarbon Emission
Targets Treaty signed in Tokyo in 1997 is an example of many
countries shirking their duty to preserve the environment for the
future children of all nations.
V. AN INDIVIDUAL HUMAN RIGHT TO GLOBALIZATION
While human rights are a type of fundamental individual
right, so too globalization may be conceived as spawning rights
allied to human rights such as the right to trade across borders
and rights to invest and travel across borders. Most
developments in respect of these new rights have the principle of
national treatment at their core. We might term them
These Globalization Rights are not merely commercial
rights, rather the commerce that they seek to protect underpins
the aspiration of a global community erected on a sustainable
economic base. Political developments, particularly
representative governance in regard to the institutions of globalization, can
A non-exhaustive list of Globalization Rights might include
the right to trade across borders, the right to non-partisan
international dispute settlement, the right to invest across borders,
the right to free movement of persons-including
non-residents-across borders, and the right to hold multiple
A. GlobalizationRight No. 1: Right to InternationalSecurity
The attainment of this most basic of rights seems far in the
future. We all have a basic right to be safe and therefore
defended. The deployment of a national defense force outside of
national borders without any specific international
authorization, such as a U.N. Security Council authorization, is historically
justified by the concept of sovereignty of the nation state. The
U.N. Charter specifically provides for the right of collective
selfdefense that is a further justification of locating military forces
beyond national borders. Such was the justification for the
Warsaw Pact and is the justification for North Atlantic Treaty
Organization ("NATO") and other military alliances. The right to
security can never be assured while the right to deploy national
defense forces outside of national borders without U.N. Security
Council authorization continues. U.N. Secretary General
Boutros Boutros Ghali's suggestion of a standing United Nations
peace keeping force was strongly rejected by the Security
Council and, it is rumored, was the real reason for not renewing his
term as Secretary General of the United Nations.
B. GlobalizationRight No. 2: Right to Trade Across
Democracies often respond to electoral concerns, however
wrong headed the populist view may be. This principle is the
realm of the "level playing field," political hyperbole if ever there
was one. 7 Reciprocity in trade policy is doomed to failure
unless you are one of the largest, most profitable markets. For
most developed, and for all developing and underdeveloped
nations, it is better to give as favorable terms to foreign
tradersmore favorable if you wish-as you do to your own citizens. This
way, foreign capital and investments will flow freely. The reason
is that developing and underdeveloped by definition means a
shortage of capital needed to develop. Even a country such as
Australia desperately needs foreign capital to sustain or increase
living standards. Tariffs, subsidies, and bounties and other
market distortions hamper or deny market access, lower living
standards, and increase unemployment. These programs take many
forms and are often disguised, e.g. local television program
content rules are really protectionism for local media. If local
programs are good, then they will command an audience and sell.
If not, why force them on viewers who may wish to watch foreign
programing such as New Zealand programs that until recently
were classified as foreign. American cultural hegemony will only
57. Anti-dumping laws are symptomatic. If a nation can produce goods or
commodities so cheaply that it can afford to sell at or below production costs, then why
should this practice be prohibited. Ifdone by a national of your country, then it would
proliferate through this medium so long as the rest of the world
provides no competition.
Globalization tends to make consumer interests different
from those of consumers' governments. Consumers want cheap
quality goods and services. Protecting local employment,
balancing the trade deficit, and saving for domestic reinvestment are
secondary, if considered at all. Subsidies, tariffs, bounties, and
prohibitions on dumping and other distortions to free
international competition hurt the consumer. It is estimated that trade
barriers cost the U.S. consumer US$80 billion a year, 8 yet U.S.
citizens have no right to a role in most trade proceedings in the
U.S. International Trade Commission and the U.S. Department
of Commerce. The reason is that consumer interests may be
different from U.S. government trade policy, which may favor
economic rent seeking U.S. interests, e.g., Midwest wheat farmers
who wish to deny access to foreign grain by dressing up the
restriction in terms of agricultural regulations that in the name of
public health allow the use of only one fertilizer, namely the one
routinely used in the United States.59 This protection is
definitely worth a sizeable donation to the political party
implementing the protectionism.
Countries do not, in fact must not, have the right to cheat
their citizens and global neighbors by creating tariffs, subsidies,
and other distortions to trade. The recent decision to retain
tariffs in the automotive industry and the textile, clothing, and
footwear industries in Australia are examples of this behavior. For
the short-term political expedient of being seen to do something
about unemployment, the government has assured the
industries' non-competitiveness and deferred the resultant
unemployment until a little later, but on a much larger scale. In the short
term, Australians donate their tax dollars to help the industries
break even and pay a great deal more than the international
market price for cars and clothes.
Nationality must be deemed legally irrelevant to all aspects
of international trade. All subsidies, tariffs, prohibitions on
dumping, and other distortions to free international
competi58. J. BovARD, THE FAIR TRADE FRAUD 4 (1991).
59. To be fair, other than in the area of commodities, the United States has the
most open markets and investment regime to be found anywhere, except perhaps
tion should be outlawed. To make this effective, individual
citizens and corporations must be given the right under
international treaties to sue their own governments in international
tribunals for distorting international trade.
1. International Trade Organizations
During the period of colonial expansion, it has been said
that the flag followed trade, i.e., the nation and its laws traced
the footsteps of its traders. The same is happening today in -the
sense that trade is demanding supranational action. Yet, there is
no supranational polity to bring the flag as it were. International
trade institutions such as WTO, International Monetary Fund
("IMF"), the Group of 8, and others including the trade blocks
such as European Union, NAFTA, and APEC are stop gap
measures towards a supranational entity to fulfill the same function as
flag. By far, the most important international trade institution is
2. The WTO
The WTO was created in 1995 at Marrakesh and is the only
international body dealing with the rules of trade between
nations. It replaces the General Agreement on Tariffs and Trade6'
("GATT") created in Havana in 1948 and takes over
administration of former GATT, treaties and functions. WTO is comprised
of 133 members with the notable exception of China, which is
literally desperate to join.61 The WTO administers a large
number of trade agreements, the legal ground-rules for
international commerce and for trade policy. The agreements have
three main objectives: to help trade flow as freely as possible, to
achieve further liberalization gradually through negotiation, and
to set up an impartial means of settling disputes.
a. Subject Areas of the WTO Agreements
The WTO agreements deal with agriculture, textiles and
clothing, banking, telecommunications, government purchases,
industrial standards, food sanitation regulations, intellectual
property through the Trade Related Intellectual Property Rights
60. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S.
1700, 55 U.N.T.S. 194 [hereinafter GATr].
61. Currently, negotiations with China are proceeding.
Agreement 62 ("TRIPs" or "TRIPs Agreement"), and numerous
other areas. The key principles of the WTO are as follows:
The WTO is a major beginning, but it does not require
international trade to be completely free of import duties, tariffs,
subsidies, and other distortions to the market. A member state is
prohibited from discriminating between WTO members, and in
certain areas, duties, tariffs, and subsidies are controlled. This
protection is not in all or even most areas. While services are
covered by one of the WTO agreements, it is far from
comprehensive. Some tariffs do not look like a tariff at first blush. For
example, a national or local content law on television and other
media is in fact a disguised tariff with the usual justification of
protecting the home industry and in this case the national
culture. If a culture is so weak that it can apportion priority to
raising cultural consciousness in order to differentiate itself from
the all-pervasive American program, then perhaps it deserves to
The 1994 Agreement Establishing the WT0 6 4 ("WTO
Agreement") is the world's most ambitious concluded
globalizing treaty. The key feature of the WTO Agreement, marking
international law apart from domestic law, is its enforceability.
Generally, international law is not directly enforceable but is
reliant upon sanctions imposed by individual countries on the basis
of political decisions by the executive. The WTO Agreement is
the first international treaty that is not reliant upon political
decisions in order to impose sanctions to enforce its stipulations. It
also creates an integrated legal and dispute settlement system
whereby disputes are resolved by judicial means and sanctions
may be ordered by the judicial body. This is considered below at
b. The TRIPs Agreement
If the assertion is true and, barring global war, it seems
likely, then society will soon move to an information based
society where information is more valuable than the present society
based on land, labor, and capital. Trade in information is only
possible if legal rights to information are devised. Information
cannot be protected by possession, high fences, or guard dogs,
unlike most other forms of property. This task is sought to be
addressed by intellectual property. If global trade in
information is to be possible, then national intellectual property laws
needs to have a degree of uniformity and be complimentary.
The Paris Convention and the Berne Convention of the late
nineteenth century have made intellectual property law more
64. Agreement Establishing the Multilateral Trade Organization [World Trade
Organization], Dec. 15, 1993, 33 I.L.M. 13 (1994) [hereinafter WTO Agreement].
A NEW HUMAN RJGHT
uniform across nations than virtually any other area of law.65
With the recent linking of international trade to intellectual
property in the WTO TRIPs Agreement, thereby making every
trade lawyer into an overnight intellectual property lawyer-at
least in their eyes-this uniformity has been increased by leaps
and bounds and in a revolutionary way. Essentially, the private
legal copyright and related rights consist of the following: rights
of performers, broadcast organizations, and producers of sound
recordings; trademarks including service marks; geographical
indications including appellations of origin; industrial designs;
patents including the protection of new varieties of plants;
layoutdesigns of integrated circuits; and undisclosed information
including trade secrets and test data. These rights have been
precisely defined and required by nations to be applied under
threat of quasi-judicial automatic sanctions.66 At the heart of the
Paris and Berne conventions, the TRIPs Agreement, and the
draft convention the Multilateral Agreement on Investments 67
(or "MAI") is the principle of national treatment.
The TRIPs Agreement requires member states of the WTO
to provide, in their national laws, for precise and specific
intellectual property rights. Some of these rights were incorporated
by reference by requiring full compliance with the Paris and
Berne conventions, irrespective of whether the country is a
member, and some by detailing the rights afresh. Failure to
comply with the TRIPs Agreement results in automatic trade
sanctions, which effectively withdraws the right to trade with
WTO members. Non-compliance with the TRIPs Agreement is
determined by a special dispute resolution process with a right
of appeal to an appellate body. This process is discussed below.
C. GlobalizationRight No.3: Right to InternationalNon-Partisan
The WTO dispute settlement system and the European
65. This international uniformity is the reason why intellectual property lawyers
enjoy, subject to language constraints, a high degree of employment mobility.
66. For a full and critical assessment of the Agreement on Trade-Related Aspects
of Intellectual Property Rights, see MICHAEL BLAKENEY, TRADE RELATED INTELLECTUAL
PROPERTY RIGHTS (1997).
67. See Organization of Economic Co-operation & Dev., MultilateralAgreement on
(visited May 15, 1999)
<www.oecd.org> (on file with the FordhamInternational
Union's Court of Justice are two of the most effective,
quasi-judicial international bodies. Their orders are enforceable and
1. European Court of Justice
The European Court of Justice has the task of ensuring
compliance by Member States with European Community law.
There are a variety of mechanisms that trigger the court's
jurisdiction from suits by the European Commission against Member
States to references to the court by national courts.6 8 National
governments, such as the U.K. Thatcher Government, which was
one of the worst, have railed against the European Union
institutions and the court. Yet, the European Court of Justice has
stood for over forty years. Judges for the European Court
ofJustice are selected from Member States, but do not represent
them. Their duty is to determine cases on their merits and
according to law. Decisions of the European Court of Justice have
been especially mindful of the need to step lightly and to assure
Member States of their remnant sovereignty and only to override
that sovereignty when absolutely necessary. Judicial activism, of
the type seen in Australia with the High Court's free political
speech decisions, is avoided and is seen to be avoided, so as to
preserve the fragile institution of a court telling hitherto
sovereign states what they must do.
The task for law in regard to international settlement of
disputes is immense. To a large extent, it stands or falls on the
perceived ability of arbitrators and judges to be seen as acting
across cultures-irrespective of their own cultural orientation or
citizenship-detached from the political stage, committed to
applying law, not making it, and as unbiased as is humanely
A permanent international criminal court is currently being
mooted. Already the United States and Australia among others
have rejected the view that there be an independent prosecutor.
The United States and Australia prefer that references to the
court only originate through the political processes of the U.N.
Security Council. This response is a great pity as it is akin to
68. EEC Treaty, supra note 16, art. 177, 298 U.N.T.S. at 76-77.
69. In his various articles, Prof. Greg Craven has drawn attention to the activism of
the High Court of Australia, especially in the political speech cases.
making a decision to try a person for murder under domestic
law depend on ministerial or cabinet decisions.
2. WTO Dispute Settlement System
The WTO dispute settlement system 70 has heard a large
number of cases. 71 A recent decision, which is illustrative of the
process, was the first case to arise under the TRIPs Agreement.
In United States and India,72 the United States, via its Trade
Representative Ambassador Charnel Barshefsky, was persuaded by a
U.S. pharmaceutical company to bring a complaint in the WTO
against India's failure to comply with certain TRIPs provisions
relating to patent protection of pharmaceuticals. The United
States was successful at the initial dispute before the WTO
dispute resolution panel and before the WTO Appellate Body. The
entire process took a little less than a year. India must now
comply or lose the right to trade with WTO members, which
effectively comprise the rest of the world.
The Indian Government had in fact made two attempts to
pass laws implementing the TRIPs requirements,73 but due to
electoral defeat and a change to a government hostile to such
laws, the legislation lapsed. These facts, however, were held
irrelevant to India's responsibility. Some, indeed many, people
may die indirectly because of being unable to afford
pharmaceuticals as a result of this decision and that is
horrendous. More, however, will live who may have died, due to the
incentive created for pharmaceutical companies to invest in
India and the resultant competition leading to lower prices and
greater varieties of drugs.
This case demonstrates that the ultimate appeal on matters
that can be argued to come within the WTO treaty is not the
apex court of a nation's judicial hierarchy, in Australia's case the
High Court. Rather, the ultimate court in these circumstances is
the Appellate Body of the WTO. This system augurs well for the
future, as a greater homogeneity of law will lead to a more
integrated global economy and all that I have argued that such
integration implies, principally less risk of war. Regrettably,
individuals cannot bring actions against governments under the WTO
dispute resolution system but must persuade other governments
to bring action. There is no good reason to exclude individual
actions against governments under international treaties, or at
least by non-governmental organizations ("NGOs") such as
national and international consumer groups. Consumer interests
are different from government interests.
D. GlobalizationRight No.4: Right to Invest Across Borders-Draft
MultilateralAgreement on Investments
The MAI is a draft convention of the Organization of
Economic Cooperation and Development ("OECD") that has drawn
huge criticism. It is intended as a response to globalization of
business. The cornerstone of the agreement, like the Paris
Convention, the Berne Convention, and the TRIPs Agreement, is the
principle of national treatment. Investments by foreigners are to
be treated no worse than a citizen's investments. 74
Discrimination is prohibited in respect of the establishment,
acquisition, expansion, operation, management, maintenance,
use, enjoyment, and sale or other disposition of investments.
Investment is defined as "every kind of asset owned or controlled,
directly or indirectly, by an investor."
The MAI also creates uniform rules75 that limit the
sovereignty of member states to legislate in a great many areas
relating to investments: immigration laws regulating the entry into a
contracting state of investors and key personnel; investor
participation in the privatization of public enterprises; export
require74. See Fiona Macmillan, Corporate Disclosure On-Line: An Appropriate Response to
Globalization, 21 U.S. WALEs L.Rav. 514 (1998) ("The central plank of the MAI is to
require signatory states not to discriminate between investors. This is to be achieved
through the principles of national treatment and Most Favored Nation treatment.").
The principle of national treatment will require signatory states to treat foreign
investors as least as favorably as it treats its own national investors, for the purposes of its laws
and regulations on investment. Most Favored Nation treatment, on the other hand,
requires signatory states not to discriminate between investors or investors emanating
from other Multilateral Agreement on Investment member states.
75. These uniform rules are termed "specific disciplines" and "performance
ments; domestic content requirements; territorial restrictions on
the acquisition of goods or services; export, import, or foreign
exchange restrictions; territorial sales restrictions; technology
transfer restrictions; rules on location of head offices;
requirements relating to minimum levels of research and development;
requirements relating to a minimum level of national
employees; requirements for domestic participation in joint ventures;
and requirements relating to domestic equity participation.
These rules have caused a considerable amount of controversy.
Investment in regard to services is protected by national
treatment and MFN provisions in certain areas by the Fifth
Protocol to the General Agreement on Trade in Services
("GATS").76 These services are confined to insurance services,
banking services, and a range of other types of financial services
relating to matters such as foreign exchange, securities
underwriting, derivatives, and asset management.
Foreign investment on equal terms to residents in countries
worldwide creates a high degree of interdependence between
nations and is a very effective curb on national sovereignty. It
bolsters all the rights listed here as globalization rights and
brings closer the notion of global citizenship.
E. GlobalizationRight No. 5: Right to IncorporateAcross Borders
The Casefor a Multinational Corporations Treaty
There are no true multinational or global corporations in
the world today. So-called multinationals are really U.S.,
European, orJapanese companies with operations overseas. They are
not true multinational or global corporations because a foreign
company is required to nominate a parent company and a
country of initial incorporation.77 As Fiona Macmillan comments:
Prior to the conclusion of the MAT, the strongest argument in
favour of the existence of a global corporate sector hinges
upon the business activities of a very small group of
multina76. General Agreement of Trade in Services, in Final Act Embodying the Results of
the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, LEGAL
INSTRUMENTS-REsuLTS OF THE URUGUAY ROUND vol. 31 (1994), 33 I.L.M. 1125 (1994)
77. Macmillan, supra note 74, at 514 ("However, the direct effect of these
agreements, especially the MAI, is to render almost meaningless the distinction between a
corporation registered in a particular jurisdiction and a corporation registered outside
tionals[,] the operation of which might have been said to
have transcended the merely international and embraced the
global. Hovering in the background, however, is the fact
that, while the activities of a corporate group may well have
been global. or international, the legal structure of the group
recognises national borders. This tends to suggest that it is
probably more appropriate to regard the group as
internationalised rather than globalised. Nevertheless, it is
important not to overlook the fact that the globalization of markets
has already given rise to the type of business strategies which
have tended to internationalise corporate power and, as a
result, make the relationship between the corpor7a8te sector and
the governments of nation states problematic.
It is suggested that the most useful ally for achieving
globalization would be' a true multinational or global company.79
Some would argue such global companies would be immensely
more powerful than present day, so called multinationals, and
thus become dangerous. In some respects, they would be
dangerous, but corporations are predictable actors. Unlike
governments, corporate entities are motivated by profit, not jingoism,
realization of historic ambitions, lebensraum, or hidden
agendas. They may well be bent on running fascist corporatist
communities or becoming global media villains such as those of
populist screen fame,8" which rightly promote exaggerated populist
fears of the corporation. Free competition and agreement on
laws against monopolistic and oligopolistic practices, however,
can effectively prevent this as they have within nations. The
author's choice of enemy is the, corporation rather than
Governments will always control the police and military, the
ultimate enforcer in any community. Democracy is powerful
institution and unlikely to be given up to fascism at the behest of
the most powerful corporation. Undemocratic governments are
on the defensive everywhere. After all, corporations sell goods
79. Career choices for law students are often narrowed, especially among the more
able, by the perception that to work for multinational corporations is to sell one's soul;
to act for multinationals or indeed any foreign corporation is to sell out one's country;
and to work for the international civil service is to accept a nice junket-but not do
anything socially useful. Nothing could be farther form the truth.
80. Such villains are found in the movies ROBOCOP or, the barely disguised global
media villain in the James Bond series, TOMORROW NEVER DIES.
and services-healthy, wealthy, and informed people are good
The corporation is most dangerous when it is an agent of
the nation. Hider was able to entice the industrialists,
principally Ruhr valley coal and steel producers, to bankroll his
abominable plans by the promise of profit at the expense of its
business rivals, principally in France. The whole idea of the original
common market from which the European. Economic
Community, later the European Union evolved, was to combine the coal
and steel industries of France and Germany so as to make war
Why must corporations have an initial place of
incorporation in one country?, Why not all allow a true multinational
company incorporated on an international stock exchange and not
beholden to any country. It still must obey the laws of countries
that it trades in and must pay tax there. Companies pursue
profit. Nations pursue glory, ambition, realization of historic
ideals, and power beyond profit, as well as moral ends. It is
difficult to predict the behavior of nations due to multiplicity of
motives. Corporations are easy to predict and therefore to control,
as profit is the only motive.
F. GlobalizationRight No. 6
1. Right to Free Movement of Persons Across National Borders
Only peripherally addressed by the MAI is the right
concomitant to trade, namely a right to travel across national
borders in order to allow the realization of WTO, MAI, and other
major trade treaty objectives.81 On this basis, it seems the right
to travel across borders of itself is a globalization right.
This statement is not to say visa restrictions are illegitimate,
at least for the short term, but rather that there is a right to
travel and reasons Of a specific type for refusing a visa must be
given, e.g. a criminal record. A nation should not be allowed a
general discretion to refuse a visa, and the class of permissible
reasons for withholding a visa and the procedures for appeals
need to be the subject of an international agreement.
81. The present draft of the MAI denies sovereignty to a nation to impede the
entry into a contracting state of investors and key personnel.
2. The Right to Dual or Multiple Nationality
Many countries prohibit dual or multiple nationality8. 2
Australia is an example of a country that has attempted to prohibit
its acquisition. Since the 1984 amendments to the Citizenship
Act of 1948, which came into effect in August 1986, an
Australian citizen who does any formal act with the sole and dominant
purpose of acquiring a foreign citizenship will automatically lose
Australian citizenship. The 1984 amendments import a test of
dominant intention, which was absent in the pre-1984 law.
The situation prior to 1986 is illustrated by Allan v.
Department of Foreign Affairs.83 Allan was an Australian citizen whose
mother was born in Ireland. In order to obtain an Irish Passport
and thus have a right of free movement across the European
Union, he registered his birth at the Irish Embassy in Bonn.
This act was held by the Administrative Appeals Tribunal
("AAT") to be a formal act to trigger his Irish citizenship with
the result that he automatically lost his Australian citizenship.
The post-1986 law requires a formal act with the sole
intention of acquiring citizenship. Marriage, however, to a foreign
national that results in acquisition of foreign nationality is not so
characterized within the law. This formulation can bring about
results quite different to the Allan's case. Guergli v. Department of
Immigration, Local Government and Ethnic Affairs84 was on its facts
similar to the Allan case. The case involved an Australian citizen,
whose mother was born in Switzerland and the daughter applied
for recognition of her rights to Swiss citizenship. 5 The lady had
checked with the Australian Consulate on two occasions, four
years apart, which confirmed she would not thereby lose her
citizenship. She in fact did, according to the Passport Office, and
appealed the decision. The AAT held that she did not lose her
Australian citizenship, as she was not acquiring a foreign
nationality, which right was vested at her birth. In other words, the
AAT held that she had inherited her nationality and only carried
out a minor administrative procedure to verify her rights. The
operative word in the legislation is "acquire." The High Court
82. Incidentally, the United States, one of the most nationalistic of states, revised
its prohibition on acquiring dual nationality some time ago.
83. Allan v. Department of Foreign Affairs (1986) 5 Austl. Admin App. 432.
84. Guergli v. Department of Immigration, Local Government and Ethnic Affairs
(1991) 13 Austl. Admin App. 40.
85. The case is an appalling example of relying on Consular advice.
subsequently confirmed 6 that Australian common law
recognizes the international law concept of dual nationality, albeit
that the purpose of the Citizenship Act of 1948 was to discourage
Prohibitions against dual nationality are wrong and an
unacceptable face of nationalism. You cannot logically endorse
multiculturalism and oppose dual nationality. Such prohibitions are
an attempt by a nation to force on an individual choice of
allegiance by recognizing that conflicts may arise between nations in
the future and securing allegiance by pre-empting any real
potential to leave the country. This point was graphically
demonstrated in Hong Kong prior to the 1997 reversion of sovereignty
to China. The law was considered moot in order to give the
entire population British passports so people could vote with their
feet and leave if necessary. China was aghast-it could see the
leverage that this provision would give the populace against it; so
too was British popular opinion, much to their loss. In reality, a
large percentage of people in Hong Kong have dual nationality,
most Australian or Canadian combined with Chinese nationality.
This situation is a major constraint on how China treats Hong
No person of conscience should be forced to give carte
blanche exclusive allegiance to a nation in the absence of
knowledge of specific actions by governments. How many Jewish
people and people of good conscience might have left Nazi
Germany had they the option of another citizenship. If people are
to be held responsible for actions of their governments as they
currently are, i.e., you have to bomb Iraqis in order to attack
Saddam Hussein, then they should have the choice to reject
governmental action by leaving the country if necessary. To do this,
another nationality is usually necessary. Sometimes, one would
not qualify as a refugee, since that definition turns on a real
threat of persecution on account of political beliefs. To seek a
new nationality at short notice is also not an option.
How we see ourselves explains much of what changes in
history. At one time, we recognized our family and clan as human
86. Sykes v. Cleary & Ors (1993) 67 A.LJ.R. 59.
only-all else was enemy, food, or both. Later, we recognized
other clans and families as human. This recognition made
possible the establishment of villages, fortified towns, and city-states.
Later still, we considered those of our race as human. Kingdoms
became integrations of kingdoms and in very recent times led to
the concept of sovereign nation states and citizenship.
No doubt controversially, it is this author's deep conviction
that, contrary to that cornerstone of public international law,
nations can no longer be regarded as sovereign states and are not
so regarded by most of their citizens. This, however, does not
mean people should regard themselves as morally free to ignore
odious national laws, aside from the rare moral imperative of
civil disobedience. Chaos would undermine our very survival,
though the future will see many would be global patriots who try
to ignore this. Legitimacy is an elusive concept, but it is deeply
bound up with widely held popular beliefs and moral
convictions. It is suspected that the adage "my country, right or wrong"
has never been less true than at the present time. While we
remain Chinese, Americans, Britons, Australians, and other "ese,"
"ans," and "ons," we have never before regarded our
"humanness" in quite the same way. However poetic, we do look back to
earth with an astronaut's eye and see depicted our world rather
than our nation. Our loyalties are to both our world and our
home. Why should we be forced to choose between them?
Paul Gomberg wrote that "genuine universalism is possible,
but only as a result of a struggle against patriotism and
nationalism. '"' Tolstoy wrote of "destroying patriotism."a8
Rather, I would suggest, patriotism and the attendant
constraints that it puts on our moral, political, and legal imagination
need not be struggled against nor destroyed, but redefined.
Patriotism, in essence, is a moral concern and caring for our
neighbors sometimes calls for the ultimate sacrifice. For twentieth
century patriots, neighbors exclude aliens and foreigners. In the
next millennium, the neighbors who are the subject of patriotic
concern and care must and will expand outward to comprehend
all human beings equally. Global patriots will test the resources
of law to its limits in achieving this evolution-mindful that too
much too fast can lead to the chaos that it is the first duty of law
87. Gomberg, supra note 51, at 150.
88. Tolstoy, supra note 14.
to avoid. 9
So what are the possibilities? In the very long term, a world
federation with specifically defined, limited powers. It will be
comprised of member states with broad general law making
powers, representing unique cultural traditions and achievements,
and overseen by a world federation court with power to enforce
its decisions. This vision is a worthy and ultimately achievable
political goal. In the short term, it is the need to whittle away
the notion of sovereign state and to build up the concept of
globalization rights as fundamental individual rights. This
realization can be done by continuing the present trend to work for
irrevocable agreement that certain areas of human conduct are
beyond the authority of sovereign states and that those states are
subject to enforceable obligations in respect of them. These
obligations are to be formulated and arbitrated by international
agencies. They are to be enforced by NGOs, individuals, and
probably most productively in terms of outcomes-though
perhaps for the most venal of motives-by corporations.
55. The 1945 North Atlantic Treaty helped to create the United Nations' Universal Declaration of Human Rights .
56. Universal Declaration of Human Rights, G.A. Res . 217A, U.N. GAOR , 3d Sess., at 135, U.N. Doc . A/810 ( 1948 ) [hereinafter Universal Declaration] .
62. Agreement on Trade-Related Aspects of Intellectual Property Rights , Apr. 15 , 1994 , Marrakesh Agreement Establishing the World Trade Organization [hereinafter WTO Agreement], Annex IC , LEGAL INSTRUMENTS-REsULT OF THE URUGUAY ROUND vol . 31 , 33 I.L.M. 81 ( 1994 ) [hereinafter TRIPs] .
63. World Trade Organization ("WTO"), WTO Dispute Settlement (visited Mar . 22 , 1999 ) <http://www.wto.org/wto/about/dispute2. htm> (on file with the Fordham InternationalLawJournal) .
70. The forerunner to this settlement system is the General Agreement on Tariffs and Trade ("GATT") dispute resolution system .
71. Many World Trade Organization decisions have been against the United States and European Union .
72. See WTO , (visited Mar. 22 , 1999 ) <http://www.wto.org/wto/dispute/ tripub.pdf> ( on file with the FordhamInternationalLaw Journal);see also C. MacdonaldBrown & Leon Ferera, First WO Decision on TRIPs, EUR . INTELL. PROP. REv . 69 ( 1998 ) ; M.N. Schlesinger, WTO Dispute PanelFindsfor US in IndiaPatent Case, IP AsIA , Nov. 14 , 1997 .
73. TRIPs, supra note 62, art. 70 . 8 -.9.