Globalization and human rights

Notes on Paul H. Brietzke (2004). GLOBALIZATION, NATIONALISM, & HUMAN RIGHTS. Florida Journal of International Law.

Globalization and human rights reflect ever more fully elaborated bodies of culture and law, bodies which contradict traditional notions of a state sovereignty. Nationalism, on the other hand, pursues sovereignty for particular groups through locally-compelling cultures, linked to a sketchy and rather incoherent international law of self-determination.’ Together, these bodies of law and culture illustrate many of the diverse features of the international arena, and many of the problems and prospects of global development. With the exception of dispute resolution under the World Trade Organization, institutions that try to interpret, apply, and enforce these bodies of international law are rudimentary. These bodies of international law have founding documents but no governing constitutions. A useful analogy would be an attempt to govern the United States on the basis of the Declaration of Independence rather than the U.S. Constitution. These international documents perpetuate cultural as well as legal clashes by treating their creations as separate and sometimes rivalrous defacto.


[Luhmann’s] theory is relatively content-neutral, with no liberal or conservative bias, other than a reasoned slant against European welfare states. Luhmann’s theory is driven by “communications,” and it thus dovetails with the communications “revolution” that makes a global society possible. (637)


Luhmann’s focus is on global cultures as an almost incidental consequence of modernization, through a functional differentiation of society, which displaced its stratified (class-based) differentiation that operated through dominance, and center-periphery relations. The United Nations measures modernization on the basis of health, literacy, access to education, and eamed income. Consequently, the United Nations finds that women tend to be better off under such criteria in more globally-integrated countries. But, relatively globalized countries often fare poorly under such criteria if they are vulnerable to external shocks (i.e., Iran and Venezuela are dependent on the erratic oil market.)’ (638)


For Luhmann, intemational law could always have evolved (by responding to “irritants”) differently, and change does not necessarily move in progressive or efficient directions. Countries and international processes frequently develop unevenly, with plenty of backsliding on the road to modernization.  (638-39)


If “all politics is local,” then all economics is intemational. A complex (not necessarily efficient) economic subsystem promotes both a global inclusion, of modernizers who expect expanded access to scarce resources in the future, and the exclusion of pre-modem people and peoples. . . . A globalized religion, Islam for example, is then seen as struggling for dominance against beliefs in a secular economic globalization or a “universal” human rights. (642-43)


A globalized religion, Islam for example, is then seen as struggling for
dominance against beliefs in a secular economic globalization or a
“universal” human rights. It may be that, just as rape signals weakness in
sex, terrorism signals the desperation of some fundamentalists over a loss
of control within global Islam, to moderates and progressives. Many
secular globalizers argue that some or many cultural emphases of
traditional conmiunities — for instance, tolerance for corruption or for
female genital mutilation — must be changed through laws to foster new
choices and relationships. Traditional authoritarians, Muslim activists, and
other would-be nationalists correctly see this as Westernization or
Americanization. Luhmann (a German) ascribes the failure of many third
world economic projects to a modernization (or an individuation) without
Westernization. Those Westerners who do not follow an anthropological
approach typically respect foreign traditions only up to the point where
instrumental relations (those based on the pursuit of gain, rather than on
kinship or friendship) begin to atrophy or, as in several human rights
prohibitions, affective relations become oppressive. (643)


Luhmann’s functional differentiation requires that coercion be removed from legal, economic, and social subsystems and lodged in the political ones. These remain underdeveloped at the international level, because there is little of the bureaucracy (outside of the WTO and the United Nations, along with its agencies), autonomy, and legitimacy that make up the sources of political power. While international law benefits from not having to secure the peace and enforcement necessary for its operations, these necessities are sometimes not forthcoming from an international politics. In the U.S., economic subsystems are subordinated to political power through the taxation, redistribution, and regulation that are almost entirely absent at the global level. This gives wealth and power an almost free rein in the global economy. . . . A heavy emphasis on economics has the effect, and may have the purpose, of forestalling political opposition to globalization.

This is the best, most efficient, outcome for the neoclassical economists who were largely responsible for creating this Americanized economic culture (sub-subsystem) in the first place. How many neoclassical economists does it take to change a light bulb? The answer is none. If the bulb needs changing, the market will have done it already. (645-47)


in mainstream economics, international or national market failure is
recognized as the only justification for regulation, and the many new,
fragmented, and thin markets in poorer countries frequently fail. Although most economists will not admit it, market failures and thus regulations are literally matters of definition of what we want markets to do that they are not doing. (648-49)

As Roth argues, economic “market failures” are actually necessary for the continued existence of markets. “What we want market to do” are instrumental goals.

Although some elites in the United States openly speak of “empire,” previous drives to dominate have always been undone by pluralistic and tolerant American ideals. In any event, the perceived outsourcing of jobs from the United States, and the attribution to globalization of declining real wages and increased inequalities, may lead to a new bout of isolationism in the United States. (655)

The above statement, made in 2004, seems prophetic, as we now see a resurgence of isolationism in the US (Trump), the UK (Brexit), and elsewhere.

In Luhmann’s terms, the establishment lawyers distinguish only legal
and illegal, while the insurgents would add a second distinction of just and
unjust, which includes a variety of noncommercial rules of customary
intemational law. (657)

The ‘insurgents” in this case would apply the moral code of good/bad (just/unjust). This is about the tension between moral norms and legal norms (law).

Tension between anthropology and law:

While relativism evolves from anthropology, religion, and moral
philosophy (conceming the scientific and philosophic impossibility of
discovering absolute “truth”), rather than from intemational law, which
pursues the rival values of coherence and consistency, relativism
sometimes stems from the respect for self-determination that nationalists
try to hamess. (660)

Sanctuary cities issue:

The contradictions in human rights law and how that law is applied will
have to be resolved: between the rights of humans and those of citizens
(i.e., those pre-modem preferential rights that discriminate against “aliens”
and that are usually stipulated by nationalists);

The citizen/non-citizen (alien) code is a pre-modern holdover. The global economy doesn’t recognize this distinction.

Stratified society distinguishes between duties/non-duties. There is no such thing as “rights” as modern society understands that concept. Rather, there are duties or obligations related to status, as well as privileges. For instance, (under stratification) subjects have a duty to obey their sovereign and the nobility.  Nobles are duty-bound to protect the commoners. In return, the commoners perform duties prescribed by the nobles.

Where stratification is still dominant, duties come before rights.

Trade or investment sanctions are usually the most coercive (but nonviolent) means of enforcing human rights laws, but many such sanctions violate international economic laws. . .

The contradictions in human rights law and how that law is applied will
have to be resolved: between the rights of humans and those of citizens
(i.e., those pre-modem preferential rights that discriminate against “aliens”
and that are usually stipulated by nationalists); between a formal legal
equality and the reality of a massive socioeconomic equality, resulting in
a rights inequality that is exacerbated by globalization; and between the
particularisms and relativism of rights that remain in various religious
traditions, especially in Hindu, Confucian, Islamic, Judaic, and some
African traditions where duties are deemed more important than human
rights. Inevitably, a pragmatic balance has to be stuck between a cautious
universalism and a moderate, tactical particularism. (662)



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