10
The return of universalist law: human
rights and free trade
One culture’s universal human rights can be another culture’s universal poison.
One person’s universal free trade can be another person’s unfair trade. One
nation-state’s tributes to human rights and free trade can be met with jeers of
hypocrisy from onlookers. Welcome back to the twentieth century. This chapter
considers the bequest of the World Revolution to the major discourses of
authority supporting the Western legal tradition today.
At the beginning of the Western legal tradition, the European feudal
economy was characterised by dispersed and local markets. Spirituality was for
the most part centralised and universalist, under the ultimate reality and
meaning extolled by the Catholic church. Today, this eleventh-century dynamic
has been inverted. A global economy exists above dispersed spiritual, religious
and belief communities.
1
How those particular, dispersed communities and
other political units relate to the claims to ultimate reality and meaning extolled
by the universalist economy will probably be to future generations a large part
of the conventional history of globalisation and law.
Globalisation and law cannot be understood without reference to the entire
second millennium. The twentieth-century World Revolution constitutes at
once the capstone of an old way of looking at law (which had culminated in state
sovereignty) and the lodestar of a potentially globalist legal and ethical tradition
coexisting with other legal and ethical traditions. Recurring patterns of Western
law and authority are to be found in the pervasive historical tensions between
these universalistic and particularistic tendencies. The medieval papacy, we
have seen, engaged in almost round robin-like contests for jurisdiction with
royal, feudal, manorial, mercatorial and urban legal systems, by reference to
common Christian scripts. Reflecting this pattern, emerging universalist ethical
and philosophical principles of free trade and human rights now compete with

5
The Inter-parliamentary Union was
formed in 1887, and the Nobel Committee too. An International Peace Bureau,
located in Berne, operated from 1891, with national branches. A number of
individuals made public pacifist comment, advocating the redundancy of war
in the face of the economic interests of states.
6
The International Court of
Justice arrived in 1900.
More sinister developments were to have catastrophic effects. Outside
Europe, colonialism had sought justification in an internally inconsistent,
nationally fractured international law discourse. The more (at that time) altru-
istic but Eurocentric concern for the ‘civilising mission’ did not stop inter-
national lawyers from ‘supporting the controversial policies of their native
country’. Particularly in Africa, these policies were lethal and morally
appalling,
7
not just by today’s standards. The competing foreign territorial
interests of France, the United Kingdom, Germany and Russia explain, in large
measure, the perniciousness of the resulting wars as a matter of economic self-
aggrandisement, protection and nationalistic pride. Every major participant
entered World War I to protect underlying imperial interests: Austria-Hungary
214 A Wholly Mammon Empire?
112
See Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), pp. 382–3.
113
Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960 (Cambridge: Cambridge University Press, 2001), pp. 58–9; see ch. 2, section 2.1.2,
p. 28 above.

An Austrian aristocrat, Count Richard Coudenhove-Kalergi, had founded
the Pan-European Union, in 1923. He argued in one of his publications,
Paneuropa, for a European federation, attracting the support of several promi-
nent politicians. In addition to preventing war and maintaining peace, the
emphasis was not on protecting Europe from outsiders but on helping Europe
to compete more effectively in the world’s economic markets. The logic of
this economic and political innovation in the face of the prevailing culture
was present in the activity of the smaller Western European states. In 1922, the
Belux economic union was formed between Belgium and Luxembourg, with
limited practical success. The 1930 Oslo Convention to a limited extent
managed to peg tariffs among the Scandinavian states and the Low Countries.
The 1932 Ouchy Convention sought to build upon the efforts of the Oslo
Convention. The combined effect of these conventions was that the Low
Countries had decreased tariffs below the comfort level of the Scandinavian
countries, whilst the larger states remained disinterested or indeed vented active
hostility, as did the UK.
9
215 The return of universalist law
118
Paul Kennedy, The Rise and Fall of the Great Powers: Economic Change and Military Conflict
from 1500 to 2000 (London: Unwin Hyman, 1988), p. 359. See too Jim Chen, ‘Pax Mercatoria:
Globalization as a Second Chance at “Peace for our Time” ’ (2000) 24 Fordham International
Law Journal 217–51, 226.
119
See David Urwin, The Community of Europe: A History of European Integration Since 1945
(London: Longman, 1991), p. 6.
Aristide Briand, the French foreign minister, in September 1929 presented
at Geneva a plan for a federal organisation of European states, however no
successful encroachments upon the sovereignty of the nation-state ensued.
Briand’s Memorandum, whilst vague, did make a novel suggestion for a per-

13
World War II was then inadvertently to sponsor the emergence of
the European Union and the United Nations.
10.1.3 The re-gathering of the European community
Europe had literally worn itself out by the end of World War II. In Washington,
a State Department Sub-Committee on European Organization, meeting
during 1943 and 1944, on the whole demonstrated a lack of enthusiasm for
European union. It was felt by several members of the Sub-Committee that
European union did not serve US interests. This was partly on the economic
basis that the removal of internal trade barriers amongst European nations
might be damaging to American trade. The other main ground for American
opposition was the experience of German control of Europe: any power strong
216 A Wholly Mammon Empire?
110
Ibid., p. 5.
11
Davies, Europe, pp. 894, 951.
112
Hans A. Schmitt, The Path to European Union (Baton Rouge: Louisiana State University Press,
1962), p. 9.
13
See Davies, Europe, pp. 1007, 1017; Schmitt, Path to European Union, p. 9.
enough to unite Europe was a threat to world peace per se, jeopardising a refur-
bished League of Nations (which was to be replaced by the United Nations).
Notwithstanding, at this time there was still American support for a European
union, on the ground that a united European economy offered attractive market
possibilities for the US to exploit, given the predictable increased income and
demand for American goods. Political reorganisation was also considered. In
particular, the imagined union was to be democratic and expressive of the vol-
untary wishes of citizens, yet with the retention of national diplomatic entities.

1955 under the Warsaw Pact.
Not until America supported the idea could the project of European unity
progress. The ‘Truman Doctrine’ of 1947 involved the US taking over from
Britain the provision of assistance to Greece and Turkey. It became apparent
that the world balance of power no longer remained in Europe. President
217 The return of universalist law
114
See Schmitt, Path to European Union, pp. 13–16. On the resistance movements, see Edelgard
Mahant, Birthmarks of Europe: The Origins of the European Community Reconsidered
(Aldershot: Ashgate, 2004), pp. 19–20.
15
See Urwin, Community of Europe, p. 40.
116
See Schmitt, Path to European Union, p. 33.
Truman emphasised the interrelatedness of the democratic world and the
connection which the subjugation of European democracy had with the United
States: peace was necessary for American security. Protection of American
interests – its sphere of containable disruption – had expanded across the
Atlantic Ocean. There followed the American Marshall Plan, formally entitled
the ‘European Recovery Programme’, which can be viewed as an early Cold War
reaction to the Soviet threat of worldwide communist revolution. Importantly,
the Marshall Plan did not deliver untied aid: the proviso was that the recipient
states were to co-ordinate economic activities to maximise the benefits from
the programme. The permanent organisation charged with administering this
mandate, the OEEC, was controlled by the member states, although a decision
could not be imposed on a dissenting state. A Council of Ministers comprised
one representative from each member state. An elaborate network of agencies
developed, liberalising trade with decreasing resort to national veto.
17
A constitutional prototype had been created for the European Union, the

See Kennedy, Rise and Fall, p. 359.
119
Philip Allott, ‘The True Function of Law in the International Community’ (1998) 5 Indiana
Journal of Global Legal Studies 391–413, 391.
It is instructive to borrow a twentieth-century formulation of sovereignty
with Hobbesian overtones, in the attempt to understand the place of the United
States in the emerging world society. Carl Schmitt wrote: ‘Sovereign is he who
decides on the exception . . . A jurisprudence concerned with ordinary day-
to-day questions has practically no interest in the concept of sovereignty . . .
What characterizes an exception is principally unlimited authority, which
means suspension of the entire existing order.’
20
Schmitt was asserting that the jurisprudence of everyday lawyers preoccupied
with law as rules from cases and statutes has nothing to do with sovereignty.
This notion of sovereignty leaves out much of legal value from social processes
which coexist below and above the state level. The United States does, however,
enjoy a Schmittian notion of sovereignty in its role as a world power or
hegemon. The US intervenes at its discretion in international causes (for
example, in the Balkans and not in Rwanda). It chooses the economic laws it
wishes to follow. (For example, the US expected African nations to pay for
unsubsidised AIDS medicines; yet was content, for its own domestic antiter-
rorist purposes, to order its pharmaceutical companies to produce subsidised
anthrax antidote.)
21
US whimsicalness is reminiscent of that of the absolutist
monarchies in the seventeenth and eighteenth centuries, guaranteeing, in effect,
social stability (at the expense of freedom), without relying necessarily upon
law.
22
To be sure, Schmitt’s theory may be ‘found wanting in respect of those

See generally Michael Byers and Georg Nolte (eds.), United States Hegemony and the
Foundations of International Law (Cambridge: Cambridge University Press, 2003); Michael
Ignatieff (ed.), American Exceptionalism and Human Rights (Princeton: Princeton University
Press, 2005); Philippe Sands, Lawless World: America and the Making and Breaking of Global
Rules from FDR’s Atlantic Charter to George W. Bush’s Illegal War (New York: Viking, 2005).
125
See ch. 9, sections 9.1 and 9.2, pp. 196–203 above.
absolute global sovereign. Its activities are subject to the moral discourse of an
emerging world society amongst other societies. That discourse is influential
and not clear cut, like any social discourse, and some deference is paid to the
moral discourse in a self-conscious way – for example, President George
W. Bush’s ‘war against global terror’ and efforts on behalf of ‘the free peoples of
the world’. To be credible at a moral, interior level on the Space Axis of the
Space–Time Matrix, the US, with all of its exterior powers, must affirm human
solidarity without reference every time to its own economic and strategic con-
cerns.
26
Visions of that solidarity can be found in some fundamental twentieth-
century treaties.
10.3 The preambling quest for human solidarity
On the Time Axis, what has been largely forgotten by most current commenta-
tors on this ‘globalising’ dynamic is the historical significance of four twentieth-
century institutions synonymous with globalisation. They were concerned at
their establishment to achieve human solidarity and to preserve human dignity
and life.
A new moral awareness of world proportions superseded the shifting
sands of ineffective international political allegiance and the unsustainable, evi-
dently misplaced domestic nationalisms which had culminated in the World
Revolution. Of the purportedly universal moral consciousness, the rallying of
regional forces in the name of ‘free peoples’ and ‘fighting evil’ has a medieval

Unfortunately the preambles and recitals of legal documents are frequently
glossed over in the hurry to exploit operative provisions, to ‘get things done’
for clients (be they governments, corporations or people) at the expense of
someone or something else.
10.3.1 The United Nations
[T]o save succeeding generations from the scourge of war, which twice in our life-
time has brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women and of nations large and
small, and
to establish conditions under which justice and respect for the obligations arising
from treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom
29
In pursuit of these goals, the United Nations (UN), established in 1945, con-
tains codified prohibitions from customary international law in the first two
articles of its Charter on aggressive war and the use of force to annex territory
belonging to another sovereign. Permeating ideological notions of what is
‘civilised’, together with the collectivised coercion available from trade sanc-
tions and military force, have compromised the state as a solitary form of gov-
ernment over a territory, unless that state complies with purportedly universal,
collective standards of civilisation.
An analogy can be drawn between the medieval papacy and the UN as moral
superintendents of the social order, transcending territorial boundaries. For the
failures of both supranational organisations politically, some consolation takes
place at the level of moral reach. As Martin van Creveld has written of the UN:
‘Like the papacy, it is swerving from one financial crisis to another and is forever
negotiating with members (formerly princes) who refuse to pay their debts.
Like the papacy, its practical impotence is offset in part by the considerable
moral authority which it wields.’

societies amid the national cheer for their return which greeted the war crimi-
nals. The plea of ‘not guilty’ for following orders from superior officers had until
that time been persuasive in most war crimes trials.
32
The Nuremberg and Tokyo Tribunals set a new precedent after World War II.
Interests of justice were thought better served through the formality of due
process.
33
The undefended summary trial or execution of the vanquished by the
victor would have taught no moral lessons. The Nuremberg Charter defined the
greatest twentieth-century legal doctrine, ‘crimes against humanity’, as
murder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war, or persecu-
tions on political, racial or religious grounds in execution of or in connection
with any crime, within the jurisdiction of the tribunal, whether or not in viola-
tion of the domestic law of the country where perpetrated. Leaders, organizers,
instigators and accomplices participating in the formulation or execution of a
common plan or conspiracy to commit any of the foregoing crimes are respon-
sible for all acts performed by any person in the execution of such plans.
34
222 A Wholly Mammon Empire?
131
See ch. 11, section 11.4, pp. 267–8 below.
132
Vesselin Popovski, ‘The International Criminal Court: A Synthesis of Retributive and
Restorative Justice’ (2000) 25 International Relations 1–10, 2.
133
Allied justice featured its own inequities. For example, defence counsel were German lawyers
without training in adversarial trial procedure. There was allied hypocrisy in relation to the
charges of wanton destruction (e.g., Britain had fire-bombed Dresden; the US had used

ecognizing that such grave crimes threaten the peace, security and well-being of
the world
36
By April 2002, the requisite number of sixty states had signed the treaty. The oper-
ational effectiveness of the ICC is threatened by the US refusing to ratify the treaty,
for fear of its soldiers being prosecuted. What can be said, given this initiative and
the ad hoc UN International Criminal Tribunals,
37
is that morality is not simply
the preserve of the individual’s immediate environs or social spheres where per-
sonal relationships exist. Minimal morality as a matter of law is expected of behav-
iour performed in the service of larger, moreexterior, political social collectives
such as the state. The particularity of the state is being challenged by the univer-
salism of world moral principles.
38
Curiously, the collective of the ‘world’ can be
closer on the Space Axis to the allegiance of the individual than is the state.
39
10.3.3 The IMF and World Bank
Two key economic institutions of the global society with continuing world sig-
nificance are the International Monetary Fund (IMF) and the World Bank. The
223 The return of universalist law
135
See generally Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil
(Harmondsworth: Penguin, 1997).
136
Preamble, Rome Statute of the International Criminal Court, 37 ILM 1002 (1998).
137
See William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia,
Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006).

41
The purposes of the IMF are:
...
(ii) To facilitate the expansion and balanced growth of international trade, and
to contribute thereby to the promotion and maintenance of high levels of
employment and real income and to the development of the productive
resources of all members as primary objectives of economic policy.
42
The immediate background to the founding of the World Bank and the IMF
were the 1930s depression, trade restrictions, discriminatory currency arrange-
ments and unpaid World War I debts regarded as a cause of the Japanese
and German aggression facilitated by an absence of collective action.
43
The con-
sequential tasks were collective and threefold: relief and rehabilitation of the
224 A Wholly Mammon Empire?
140
The critical literature is voluminous. For the main ideas, see e.g. Joseph Stiglitz, Globalization
and its Discontents (London: Penguin, 2002); Richard Peet, Unholy Trinity: The IMF, World
Bank, and WTO (London: Zed Books, 2003).
141
The International Bank for Reconstruction and Development (now one of five organisations
comprising the World Bank) Articles of Agreement, adopted on 22 July 1944, Australian
Treaty Series 1947 No. 15.
142
The International Monetary Fund Articles of Agreement, adopted on 22 July 1944, Australian
Treaty Series 1947 No. 11.
143
Raymond F. Mikesell, The Bretton Woods Debates: A Memoir (Princeton: International Section,
Department of Economics, Princeton University, 1994), p. 4.

49
... Recalling the historic importance of the ending of the division of the
European continent and the need to create firm bases for the construction of
the future Europe
50
The passionate sources of personal moral allegiance which helped to found the
European Union were captured in the words of Winston Churchill. In answer
to the question ‘What is Europe?’, he answered in July 1945: ‘a rubble heap, a
225 The return of universalist law
144
Edward S. Mason and Robert E. Asher, The World Bank Since Bretton Woods (Washington,
DC: The Brookings Institute, 1973), pp. 2–3.
145
Christoper L. Gilbert and David Vines, ‘The World Bank: an Overview of Some Major Issues’
in Christopher L. Gilbert and David Vines (eds.), The World Bank: Structure and Policies
(Cambridge: Cambridge University Press, 2000), p. 14.
146
Stiglitz, Globalization, p. 12.
147
See Mac Darrow, Between Light and Shadow: The World Bank, the International Monetary
Fund and International Human Rights Law (Oxford: Hart Publishing, 2006); Balakrishnan
Rajagopal, International Law from Below: Development, Social Movements and Third World
Resistance (Cambridge: Cambridge University Press, 2003), ch. 5.
148
Preamble, Treaty Establishing the European Coal and Steel Community, 18 April 1951.
149
Preamble, Treaty Establishing the European Economic Community, 25 March 1957.
150
Preamble, Treaty on European Union, 7 February 1992.
charnel house, a breeding-ground for pestilence and hate’. He appealed in

Rosenstock-Huessy (in his 1938 ‘autobiography of Western man’) that ‘[i]n the
community that common sense rebuilds, after the earthquake, upon the ashes
on the slope of Vesuvius, the red wine of life tastes better than anywhere else’.
53
An implicit meaning which may be imbibed from this quote is that when revo-
lutionary times settle into comfort, it is all too easy to become complacent and
indulgent. A general, globalist jurisprudence must therefore encourage a nor-
mative, historical jurisprudence, to keep alive and to generate, further, the
highest human aims and principles to direct the norms of institutions such as
the United Nations, International Criminal Court, International Monetary
Fund, World Bank and the European Union.
226 A Wholly Mammon Empire?
151
See Davies, Europe, pp. 1065–6.
52
See ch. 11 below generally.
153
Rosenstock-Huessy, Out of Revolution, p. 758.
We may now move to examine the principles which accompany these insti-
tutions: human rights and free trade.
10.4 Universal human rights
‘Human rights’, according to former High Court of Australia Chief Justice Sir
Gerard Brennan, ‘prescribe the minimum conditions in which an individual
can live in society with his or her dignity respected’.
54
Human rights discourse
seeks universal support by offering some benchmark of normativity which
should be able to attract subjective, moral allegiance. Whilst sometimes com-
peting with state law, the universalist principles of human rights and free trade
can also provide legitimacy to state law. These discourses rely upon a recurring

See e.g. John Witte Jr, ‘Law, Religion, and Human Rights’ (1996) 28 Columbia Human Rights
Review 1–31; Charles J. Reid Jr, ‘The Medieval Origins of the Western Natural Rights
Tradition: The Achievement of Brian Tierney’ (1998) 83 Cornell Law Review 437–63.
156
Friedrich H. Tenbruck, ‘The Dream of a Secular Ecumene: The Meaning and Limits of
Policies of Development’ in Mike Featherstone (ed.), Global Culture: Nationalism,
Globalization and Modernity (London: Sage, 1990 reprinted 1996), p. 200.
These successors . . . were the king, the state, the people and the state organiza-
tion (the League of Nations, the United Nations etc.). The state is then con-
structed in the image of a benevolent, omnipresent, omniscient and omnipotent
king, possibly receiving legitimacy both from the state community and from the
people . . . The state elevates itself through an act of levitation to the transcen-
dental levels of even deciding over omnicide, through weapons of mass destruc-
tion, while standing on top of a growing human rights mountain.
57
Our ‘global times’, featuring accelerated interconnections amidst perforated
territorial borders, have resulted in a boon to the possibility for certain human
norms to be projected and accepted as universal. This defies the traditional
sphere of containable disruption of the nation-state, such that the nation-state
can appear to be an excuse for privilege in a particular sphere which is unjusti-
fiable on a world scale. These new human rights universalise humanity by con-
testing sovereignty conceived in state, national or territorial terms.
58
This was a
consequence of the maniacal horror of the World Revolution which implored a
human, as opposed to national, response.
Human rights received their fundamental codification in the Universal
Declaration of Human Rights (which will at times be referred to as ‘the
Universal Declaration’), adopted by the United Nations General Assembly in
1948. Two other documents adopted in 1966 are commonly dealt with in the

161
See Abdullahi Ahmed An-Na’im, ‘Globalization and Jurisprudence: An Islamic Law
Perspective’ (2005) 54 Emory Law Journal 25–51, 32; Chen, ‘Globalization and its Losers’, 161
and sources therein at n. 20; Michael Kirby, ‘Human Rights and Economic Development’
(1996) Australian International Law Journal 1–14.