From Adam Smith's Invisibile Hand to Wall Street's Visible Whip

From Adam Smith's Invisibile Hand to Wall Street's Visible Whip
International Law and Globalization
Peter Weiss
Heinrich Böll Stiftung Conference, 20 May 2000

Globalization represents the victory of greed over humanity. After the end of the cold war, there should have been a Hegelian synthesis between the best aspects of capitalism and socialism. This did not happen; capitalism won out, mostly in its worst aspects: 'structural reform', the profit motive über alles, Adam Smith's invisible hand transformed into Wall Street's visible whip.

The condition of the world at the beginning of the new century consists of a perverse paradox: For the first time, the solutions to the world's major problems - poverty, ill health, environmental degradation, war, racism and other forms of discrimination - are at hand, while the will to implement them is almost totally lacking among the political elites. As I may be one of the few lawyers at this conference, I will address the role that law can play in resolving this conundrum.

According to some, the law is the heavy hand of the past laid upon the present. According to others, the law is the burning vision of the future. It is, of course, both, depending on space, time and societal context. There are times - too many, I am afraid - when might makes right. But there are others when right makes might. The challenge facing civil society is to multiply the latter and diminish the former. This should appeal particularly to a German audience, since, in German, the word for law, das Recht, is intimately connected to the word for right, das Rechte. (The same is true in French - le droit - and in Spanish - el derecho - which may lead one to wonder whether the distinction between law and right is characteristic only of the Anglo-Saxon world).

At any rate, it is indisputable that, in the course of the last century, the law, and particularly international law, made giant strides away from the pernicious 19th century system of amoral positivism toward a rebirth of natural law, stripped of its religious origins but resting on solid moral foundations. Beginning with the codification of humanitarian law - another term for the laws of war - at the Hague Peace Conference of 1899 and moving on to the Charters of the International Military Tribunal and the United Nations in 1945, the Universal Declaration of Human Rights in 1948 and a multitude of treaties, conventions and declarations in the second half of the twentieth century, the world community created a set of norms which, if anyone paid attention to them, would make this indeed the best of all possible worlds. That these norms are generally more honored in the breach than in the observance is only too well known.

But I did not come all the way from New York to bring you a message of despair. Let me, therefore, devote the rest of my introductory remarks to a brief catalogue of the little that has been done and the much more that could be done with this wonderful normative construct which sits there begging for civil society to avail itself of it.

Globalization and Development

The Universal Declaration comprises two equal parts, one dealing with civil and political rights, the other with social, economic and cultural rights. Each of the two covenants adopted by the United Nations in 1966 for the purpose of giving legal force to these two sets of rights begins with a preamble declaring that the ideal of freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy both sets of rights. It is high time that the artificial distinction between so-called real civil and political rights and so-called aspirational, or only aspirational, economic and social rights be erased. Following the 50th anniversary celebrations of the Universal Declaration there has, in fact, been renewed interest in taking economic and social rights seriously. In the United States, the poor peoples movement has been using the Universal Declaration to organize against the growing gap between their sector of society and that of the obscenely rich at the top. Last October, a complaint was filed with the Interamerican Commission of Human Rights accusing the United States of violating their right to an adequate standard of living. The people with whom I am working on this are planning to hold a Poor People's World Summit some time within the next year. I would be happy to put any of you who may be interested in becoming involved in touch with them.

Accountability

This word, more than any other, sums up the contribution of Nuremberg to international law. Dormant for nearly half a century, the principle of accountability has come to life in the last two years with the signing of the Statute of the International Criminal Court and the remarkable decisions of the Spanish and British courts in the case of General Pinochet. Civil society played a major role in both of these developments, which point the way to the establishment of universal jurisdiction for universal crimes.

War

It is true, in some sense, that, as the constitution of UNESCO states, wars start in the minds of human beings. Peace education should therefore be integrated into the curriculum of every school at every level. This is one of the main missions of the Hague Appeal for Peace and Justice in the 21st Century which, a year ago, brought ten thousand people from all over the world together in The Hague in a common commitment to abolishing war and establishing peace as a human right.

But the idea of going to war, whether across or within national boundaries, does not arise spontaneously out of nowhere. Poverty, as shown by the wars raging in Africa, has a great deal to do with it. So does the arms trade, which always has and always will convert weapons allegedly sold and bought for defense into instruments of aggression. IANSA, the International Action Network on Small Arms, is mobilizing civil society in many countries for a drastic reduction in the trade in small arms. Another group, Global Action to Prevent War, originating in the United States but in the process of building an international network, would go beyond small arms and is offering a blueprint for a phased reduction in conventional armaments of all sorts, in parallel with the creation of conflict prevention and conflict resolution mechanisms. Let me remind you, in this connection, that, while the arms manufacturing countries keep pushing their deadly products on the rest of the world with the zeal of carnival pitchmen, the United Nations keeps repeating the mantra of general and complete disarmament as if any of its member states still believed in it.

Humanitarian Intervention

Under Chapter VII of the UN Charter, no country may intervene in another without Security Council approval. Ultimately - sooner rather than later - the UN itself should be the sole agent for humanitarian intervention. Which will require doing something about the veto and about creating a standing UN intervention and peacekeeping force.

Nuclear Weapons

As demonstrated by the failure of the just concluded Nonproliferation Treaty Review Conference, the position of the "official" nuclear weapon states is an example of diplomatic hypocrisy to take your breath away. A few days after the conference opened at UN headquarters in New York, the US, the UK, France, Russia and China issued a joint statement reaffirming their commitment under Article VI of the Treaty to the ultimate elimination of nuclear weapons. Anti-nuclear NGOs provided the delegates, the vast majority of whom want to see an immediate start of negotiations leading to the abolition of all nuclear weapons, with evidence of the complete discrepancy between what the diplomats of these states are saying and what their military people are doing and saying. The latter speak of retaining nuclear deterrence as the cornerstone of their national security posture "forever" or "indefinitely" or, in the words of Mrs. Albright, until there is a more stable security environment. At the same time as the joint statement was handed to the conference, it was revealed that the US was trying to placate Russia about its missile defense plans by assuring the Russians that they would always have 2000 to 2500 nukes to launch against the US and therefore did not have to worry about US plans to intercept a mere handful of Korean, or Iranian, or Lybian missiles.

Germany, by the way, is a party to this farce, since it is both a party to the NPT and a member of NATO, which reaffirmed its indefinite reliance on nuclear deterrence as recently as last year. Germany should also be respectful of the Opinion of the International Court of Justice, which declared in 1996 that the threat and use of nuclear weapons were generally illegal under international law and that all states had an obligation to conduct and bring to a conclusion 'nuclear disarmament in all its aspects.'

In sum, international law points the way to a more just, more peaceful, more secure future. But international law is just so many words on paper until people decide to reverse the normal process and teach their governments to be more law abiding. I will end with a quote from an unlikely source:

"I think that people want peace so much that one of these days governments had better get out of the way and let them have it"
Dwight Eisenhower.

Peter Weiss, an international lawyer, is President of IALANA the International Association of Lawyers Against Nuclear Arms