E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 6 Number 3 (September, 1999) Copyright E Law and/or authors File: pendleton63.txt ftp://cleo.murdoch.edu.au/pub/elaw/issues/v6n3/pendleton63.txt http://www.murdoch.edu.au/elaw/issues/v6n3/pendleton63.html ________________________________________________________________________ Our Allegiance - Australians Or Global Citizens Michael Pendleton[1] Contents * Allegiance and Globalisation * Globalisation Defined * Inevitability & Consequences of Globalisation o Demise of State Sovereignty * Justification for Globalisation o Survival o If Racism is Wrong Why is it Permissible to be a Patriot + Development of and Forms of Nationalism + Moral Arbitrariness of Racism & Nationalism + Hard Line Patriotism + Moderate Patriotism + Anti Patriotism o Collective Responsibility Assumption of Nationalism as Contrary to Justice o Some Nations Have Disproportionate Control of World Resources o Christian Internationalism o Alternatives to Globalisation - Reciprocity in International Trade Policy o Global Free Trade is Necessary For the Same Reason as Market Economies o International Humanitarian Aid * Individual Rights o Rights Language & Law o Human Rights o Indigenous, Ethnic Minority & Suppressed Nationality Rights o Environmental Rights * Globalisation Rights o Right to Security o Right to Trade Across National Borders o World Trade Organisation (WTO) o Trade Related Intellectual Property Rights Agreement (TRIPs) o Right to International Non Partisan Dispute Settlement o WTO Dispute Settlement System o Right to Invest Across Borders o Draft Multilateral Agreement on Investments (MAI) o Right to Incorporate Across Borders o The Case for a Multinational Corporations Treaty o Right to Free Movement of Persons Across National Borders o The Right to Dual or Multiple Nationality * Conclusion * Notes "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". Nathanson, In Defence of Moderate Patriotism "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. The root of war ....(is) the desire for the well being of one's own people: it is patriotism. Therefore to destroy war, destroy patriotism". Tolstoy, Patriotism or Peace "Nationalism, then, is a subordinate principle and a parasitic, ambiguous ideology, capable of producing a Mazzini and Palacki, or an SS thug. ...Nationalism is best left to drop off into little more than a mildly patriotic sentiment". Eugene Kamenka, Australia Made Me, But Which Australia is Mine. "Nothing human is alien to me" . Karl Marx, Favourite Motto "In Christ there is no Greek or Jew, no slave or free, no man or woman" St. Paul, Galatians 3, 28 "Reciprocal international guarantees of freedom of trade and non- discrimination therefore serve important domestic policy functions for limiting government failures by helping governments to overcome the asymmetry in their national foreign policy making processes. This also explains the high point of success of GATT dispute settlement rulings: Governments know very well that compliance with their self- imposed GATT commitments, and with GATT dispute settlement rulings, increases national economic welfare, and that by `tying their hands to the mast' (like Ulysses when he approached the island of the Sirens), reciprocal international pre-commitments help them to resist the siren like temptations from rent seeking groups at home". The GATT/WTO Dispute Settlement System, E Petersmann Allegiance and Globalisation 1. When we analyse how our own personal world view was formed, it is inevitable we would ask ourselves a multiplicity of questions including what action, rule or opinion will promote the greatest good of the greatest number. What may not have been explicitly addressed is the greatest number of who: family; significant others; fellow nationals; or fellow humans. More so than any time in the past we are cognisant of fundamental individual rights. Yet we seem reluctant to carry that concern to its logical end and examine the tension between national interest and everyone's interest in the manner the words "individual rights" suggest. These questions might be seen to lead in the direction that the national interest is only of importance in so far as it corresponds with international interest. Is this view naive, or worse, seditious? 2. In seeking to address these and other questions this article has the following principal thesis. National allegiance is anachronistic. We need a new ideology, based on an assumption of justice for all, to replace patriotism and concepts of citizenship. Globalisation provides a vehicle for such a system, though to date it is a fact without an articulated ideology. Globalisation, as defined below, is not only inevitable and desirable from security, economic, social, political and other perspective's but is mandated by considerations of justice. International interdependence generates ever increasing inroads into national sovereignty. Law, particularly the device of rights, has certain fundamentally important roles to play in buttressing the development of globalisation. In the short term this might principally be through enhanced individual cross border rights, be they a right to progress free international trade via individual law suits against nations under trade treaties, or by further expansion of what we might term "globalisation rights". 3. A final word of introduction. It may seem odd to choose the present time to address the rightness of globalisation . Many see globalisation through international trade as anathema to the development and dignity of persons by somehow `commodifying' them. It is said the villains behind this, as with many other social evils, are the multinationals[2] 4. After the recent collapse of Asian currency markets and the resultant shedding on values from equity markets around the world, can globalisation be desirable, given its knock on effects to virtually every national economy?[3] 5. It is also a favourite theme in some sectors of the United States to warn, as does the remnants of the One Nation Party in this country, of the threat posed by international law and the United Nations (UN), some even seeing UN invasion as imminent[4] 6. Australia itself has recently witnessed a constitutional convention which with luck may lead on to a republic thereby numbering us with Gibraltar, the Falklands and a few Carribean Islands as among the last nations on earth to become fully independent[5] 7. Full autonomy is a condition precedent to the expression of mature nationalism, so are we ready for globalisation. This is also a time when indigenous, ethnic minority and suppressed nationality rights, not global rights are emphasised, even if the agenda is to dissipate them[6] Yet all of these are directly symptomatic of why a discussion of the ethical implications and inevitability of globalisation is timely, and what role law might play in advancing globalisation rights. This is especially so if globalisation rights, like indigenous, ethnic minority and suppressed nationality rights, are seen as a variety of human right. Globalisation Defined 8. Globalisation, 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'[7] 9. More recently, Francis Fukuyama;[8] writing in the `End of History' defined globalisation as: `a centrifugal force, pushing towards unification of the world, at the expense of national sovereignty' or: `the development of a universal homogenous state where all human needs are satisfied, and activity is primarily economic'[9] and globalisation as: `a signal of death for nation states'[10] 10. McMillan emphasised the: `emergence of international interdependencies - a world order irrespective of race, nationality, geography, or religion:[11] 11. Sturgess wrote of: `a major shift of economic and political power to the supranational level, primarily due to technological innovation.[12] 12. Gellner termed it. `unification of culture, language, and politics'[13] 13. A more disapproving definition is that of Kanter: `cultural imperialism, domination and homogenisation:[14] 14. More economically orientated formulations of globalisation speak in the following terms: o `a process whereby national economies become subsumed and rearticulated. into the system by essentially international processes and transactions: [15] o `An evolutionary process towards a "one-world" economy[16] global marketing, product distribution, and strategy, [17] o `expansion of, investment in, and increasing dependence on world operations for profit [18] o `establishment of global networks (information, labour, finance) to be used for maximising profitability: [19] o `privatisation of industry, and opening up of mineral patrimony to non-national exploitation [20] 15. In the area of communications we see the establishment of instantaneous and interactive communications networks spanning the globe. Do not forget that the post war generations of almost all nations know more about each other through film, TV, radio, press telephone, the ascendancy of English language, and now amongst at least an important minority, the Internet. 16. Most of these formulations of globalisation have a certain commonality despite the difference in area of focus or emphasis. On the basis of a pooling of commonality, for the purposes of this paper, globalisation is defined as follows: Globalisation is the contemporary tendency for persons, corporations and institutions to expand out of the confines of a nation or civilisation, be it Western, Islamic, Neo Confucianist, or other, 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 civilisation. It is bound up with a conscious or unconscious scepticism 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. 17. This is actually quite a tame definition despite first impressions. How often do we hear the term `international community'. The International Monetary Fund (IMF), often painted the villain, has a well known rescue function and role of dictating to governments what they can or can not do, if they are to receive funds from it. The Organisation for Economic & Cultural Development (OECD) is constantly referred to it our society for bench marking purposes, especially in Parliament, and recently in connection with the Multilateral Agreement on Investments (MAI). Most of us are aware of the importance of Group of Eight (Seven before the inclusion of Russia) or G8 Summits. In recent decades the proliferation and activity of Non Governmental Organisations (NGO's) in the United Nations and other fora and other international organisations has increased dramatically. The Red Cross/Red Crescent, Amnesty International and Greenpeace are NGO's which have become household words. Every activity they undertake are in respect of governments foreign to most of its members. The existence of international human rights law, the right, willingness and frequency of the UN Security Council ordering sovereign state compliance with its resolutions, the viability and sheer size of the European Union, and the compulsory Dispute Settlement System of the World Trade Organisation all demonstrate the increasing power of a new international law regime. Nationalism is something we have not really had time to think about given the contemporaneous nature and pace of globalisation. Inevitability & Consequences of Globalisation 18. The following is a mosaic of comments concerning globalisation: o `the inevitable, natural process after the end of the Cold War - greater co-operation'; o `an ideal goal for humanity - unity and harmony '; o `an inevitable result of globalising technological and the economic forces of capitalism. These must be supported by structural and political change'; o `it allows achievement of economically efficient use of scarce resources'; o `cultural sensitivity and the tailoring of operations to local needs are exercised'; o `the wealth of the world can be more evenly distributed once national borders are removed'; o `the likelihood of large wars will decrease, as interdependence requires co-operation'; o `better rights for women world-wide, can be obtained '; o `universal laws, principles and ethics may be enforced'. Opposing views on globalisation are set out below: o `it undermines national sovereignty and national community'; o `smaller, less competitive economies will be subsumed and extinguished by economic super-powers'; o `massive structural adjustments such as deregulation of industries and removal of tariffs result in unemployment, economic uncertainty, and instability. These are excessively harmful and unnecessary - better to have smaller national adjustments instead '; o `loss of cultural identity will occur, as survival depends on growing links with superpowers, exploitation of less developed peoples may occur'; o `environment will suffer at the expense of a new ideology of economic rationalism'; o `economic dominance and motivations will lead to social and moral bankruptcy '; o `bifurcated world order will result, with internal conflict between nations desiring to retain sovereignty, and the re-ordering of international political space'. 19. There is some truth of course in all of these views though many are exaggerated and the pitfalls avoidable. Some of the implications of these views are examined below. Demise of State Sovereignty 20. Less than ten years ago it was rare to hear media references to the term international obligations and international community. Today we frequently hear mention of international treaties on rights of the child, protection of endangered species, international trade, and particularly of the United Nations and its institutions and agencies. 21. To lawyers international law is a very different kind of law than national law. In many legal systems international law has more in common with the rules of chess than the law of Australia, Singapore, Malaysia or the US. This is because in chess, as in much of international law, the players can not be forced to comply with the rules. When they refuse to play by the rules the other players may choose to exclude them from the game, but that is all they can do. The traditional reason for this in international law is that nations are sovereign states, and while they can bind themselves to agreements, they can not be forced to carry out these agreements just like the chess player. Twenty years ago and for decades before, constitutional law students all over the common law world were regaled with A V Dicey's famous example of British sovereignty. There is no constitutional impediment, wrote Dicey, to stop the British Parliament passing a law prohibiting Frenchmen (sic) from smoking cigars in the streets of Paris. 22. State sovereignty is in a state of flux, especially the extent to which they are regarded as bound by the agreements they make with other sovereign states, and the consequences which flow from breach. This is complicated by who determines if a sovereign state has broken its agreement and what sanctions flow from this breach, if any. If you claimed I had broken a contract with you the ordinary national courts would determine if I had and order what restitution or penalties I must pay. If I don't pay, these institutions may, in effect, use force against me or my property. In international law there are no institutions to turn to in many instances. Three major exceptions are the International Court in the Hague, the World Trade Organisation (WTO) Dispute Settlement System[21] and the United Nations Security Council (which since the Korean police action in 1957 until very recently had been largely inactive). 23. Though 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 interest, against the nation states of which they are citizens. 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 fairly arbitrate 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 states. 24. Dr Samuel Makinda has written of international interdependence eroding national sovereignty and blurring the distinction between domestic and foreign affairs[22] "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 it's 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 stakes, albeit differently" 25. Makinda also writes of normative constraints on state sovereignty brought about by globalisation which itself is largely a product of Westernisation of the globe[23] "There have also been what could be termed normative constraints on state sovereignty. These have come about through the process of globalisation, which to a large extent is a form of Westernisation. This process naturally affects non-Western societies more than Western ones. For example, in some cases globalisation 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 justices, liberal democracy, individual liberties, free markets, ant 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 military more powerful Western countries". 26. 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 globalisation and are championing sovereignty with zeal[24] " 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 leaders".[25] 27. The international community can not allow Third World nations in the name of sovereignty to make the same mistakes the developed World made: the genocide; wars; and even disastrous economic plans like China's Great leap Forward can not be allowed to be repeated. In the long term peace must be enforced, and realistic economic systems engineered. 28. Part of the sea change in many individual world views, much of which has gone unnoticed by individuals, is that a government not only lacks legitimacy but the nation is not to be regarded as sovereign where the fundamental human rights of its citizens are ignored. "For example in 1995, the Commission on Global Governance argued: `Sovereignty 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"[26] 29. That is why outlawing child labour, female circumcision, and child pornography is seen as legitimate when forced on recalcitrant states. It is also a justification for military intervention by agencies, with international legitimacy such as UN Security Council authorised forces, in such places as Iraq, Somalia, Serbia and other situations. So too can globalisation be justified if it allows Third World citizens access to greater wealth through global trading. The idea is that people would agree if their fundamental rights were observed by consulting them and fairly putting the arguments. This approach has elements of white man's burden, neo colonialism, and paternalism and akin to the logic of Marx's dictatorship of the proletariat. It is at base motivated by respect for fundamental individual rights in the absence of international political institutions even though few Third World citizens are global investors. Globalisation - implies an inevitable loss of sovereignty to international bodies, investors and markets but also to ideals of popular sovereignty which include self determination, elimination of poverty and economic stagnation and regional and international security.[27] Justification for Globalisation 30. There are compelling reasons why globalisation is mandated by Justice. Those reasons are as follows. Firstly, globalisation is the only practical method to safeguard our continued existence as a species by promoting economic interdependence thereby rendering war contrary economically unstainable. Secondly, patriotism and nationalism in the third millennium are anathema to globalisation and are morally arbitrary, fail to take seriously human individuality, and are no different in kind to racism or sexism. Thirdly, a policy of reciprocity in international trade does not raise anyone's living standards and is self defeating. A policy of trade unilateralism renders better results. Fourthly, global free trade is necessary for the same reason as market economies because both are based upon self interest. The self interests of individual citizens in raising living standards lie as much outside the nation state as within it. Finally, all nation states owe a duty to give aid to other nation states less fortunate than themselves. The most effective long term form of aid is to foster true global free trade by allowing market and investment access to developing and developed country alike. Survival 31. Unless a nation can get access for traders and investors to lucrative markets, it is only a question of time before conflict, often military conflict, will result. History, both recent and ancient, illustrates this recurrent theme. The primary concern of all rational living things, institutions, commercial, cultural and other actors is survival. War is an ever present threat to our own and our children's survival. It's root causes are, in the writer's view, as inevitable as the last major conflict you or the writer had - perhaps with another driver on the way to work, with spouse, child, parent or neighbour. It involves our preference for self over others, or when we are in a group, the preference for our group over other groups. We by and large see it as wrong but it is part of our nature. Those who see war and conflict as peculiar to capitalism, patriarchal societies or totally manipulated by the military industrial complex are simply naive, non introspective or slaves of contemporary intellectual fashion. 32. Violence is often only a little distance away from all human conflicts. So too with the nation state. We tend to play down such things with the end of the Cold War and over fifty years free from world conflict but nuclear, chemical, biological and now laser weapons once invented can not be willed or promised away by treaty[28] In the mid nineteenth century Leo Tolstoy [29] wrote: "The 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". 33. The interdependence of a family minimises 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. Amongst nations, the more economically interdependent a state is 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 was the premise articulated by M. Robert Schuman, the post Second World War French Foreign Minister, and the Schuman Plan is the basis upon which the European Union was founded[30] 34. The 1951 European Coal & Steel Community Treaty (Treaty of Paris) and the 1957 European Economic Community Treaty (Treaty of Rome), recognising that Europe had been plunged into two immensely painful wars in the twentieth century, sought to integrate Europe. Especially the coal and iron industries of Germany and France so as to make them economically interdependent and thereby render the necessity for war to advance vital national interests as redundant. 35. A precedent for a New World Order is to be found in the internationalism of the European Community, an institution which despite its recent altercations over the implementation of the Mastriicht Treaty and European Monetary Union (EMU), has remained a stable body for over forty years. The key to the EU is that the general law making powers remain with Member States. Only limited special powers[31] designed to bring about key objectives are created by the Treaty of Rome (the EC Treaty), the European Council, or the European Parliament and are to be implemented by the European Commission. Two of these key objectives are the establishment of free movement of goods and services, and by the citizens of Member States. The European Court of Justice decides when Member states are in breach of their treaty duties and can punish Member states with fines. Even if the EU reaches the full political union that is now its stated aim, he Member States will still retain much of the law making powers. This is typical of any federation and is the case with the USA and Australia. The institutions and dispute resolution processes of the EU could become, and to an extent have become, a blue print for the world. 36. Surely the world must become as interdependent as that engineered into the European Union if another world war, perhaps our last, is to be avoided. This is beginning with trade pacts such as North American Free Trade Association (NAFTA) which follows EU mechanisms though without what makes the EU unique, its objective of political union. The World Trade Organisation Treaty draws heavily upon the EU experience as, to a lesser extent does APEC, though this is a far less ambitious trade pact than NAFTA. If Racism is Wrong Why is it Permissible to be a Patriot Development of and Forms of Nationalism 37. Some of the most successful early city states, eg. 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 17th & 18th centuries. Race or the predominant genetic stock of a populace, has remained a most important criteria by which people differentiate themself 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. 38. As we humans prepare to enter the third millennium we insist that civilised behaviour outlaws discrimination on the grounds of race, or gender, (remember the abolition of slavery only occurred during the last one hundred and sixty years or so), religious beliefs or other morally arbitrary criteria. However, by and large most agree or fail to consider that we regard discrimination on the grounds of nationality as a morally defensible criteria. Such discrimination, it is argued, is really part and parcel of patriotism. But is it defensible. Moral Arbitrariness of Racism & Nationalism 39. Should we feel 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, then 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[32] 40. Is this merely an application of the adage charity begins at home? Surely not -that adage means we do charity when the opportunity presents itself, not wait for a grand stage, which we might conveniently never find[33] 41. The real reason for our differentiation between the Somali and the unemployed national is the institution of nationalism itself. The objects of our moral duty, that is the persons to whom we owe a duty, are not equal. We owe a higher duty to nationals than foreigners. This is patriotism. 42. Many people in the 19th century, perhaps before, felt profoundly disturbed by the institution of slavery. They recognised slaves as human long before the mid 19th century when slavery was abolished, largely due to the power of one nations navy and its ability to impose it's will on other nations[34] Someone, somewhere must have said what they felt about slavery and they or others wrote and publicised these views and so the perception gained momentum[35] The same process is occurring with nationalism. Similarly, the view that patriotism is no longer a virtue is far from revolutionary. 43. Leo Tolstoy condemned patriotism as both: "...stupid and immoral. (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"[36] 44. Tolstoy argues patriotism is opposed to the fundamental ideals of morality. "how can patriotism be a virtue... When it requires... An ideal exactly opposite to that of our religion and morality-an 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"[37] 45. Almost a century later some people are beginning to believe patriotism is now (not in the past) a betrayal of our human family - the perfidy of patriotism. Patriotism was until recently considered a highly moral form of action whereby we serve and protect our neighbours. Much selfless service to others was sacrificed in the name of patriotism. Nothing can detract from that. The writer is proud of his paternal grandfather who died in the battle of Britain and his maternal ANZAC grandfather. He had the kind of courage and commitment to listen to these arguments. 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 we prefer our nation and our fellow citizens to other nations and other people, even if they are family. This preference, like preference for a race, or gender, or religion, is morally arbitrary, ie. there are no valid grounds to base differential treatment and as such is morally wrong. 46. 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 which many would all be tempted to take advantage of. One might refuse to pay their tax because it is being used to pay subsidies to logging companies, 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 we, or at least the writer, have dismissed anarchy as a naive rejection of the fact that we humans are constantly tempted to take advantage of one another. 47. But no one asked us whether we wanted to be a citizen and denying our citizenship is not a real option [38] The avoidance of quasi anarchy requires that we continue to accept our nationality in the same way as I believe we are forced to accept market economies. However, accepting market economies does not stop us 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 ultimate objective of whittling away at sovereignty till it becomes vestigial. 48. 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 extremes of view on the relationship between patriotism and moral conduct. There appear to be three schools of thought in the literature which I have termed hard line patriotism, moderate patriotism and anti patriotism. Hard Line Patriotism 49. MacIntyre[39] 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 emphasises 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 morality: `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.'[40] 50. MacIntyre is suggesting that if moderate patriotism makes loyalty subservient to universalist morality then it is empty. `The standpoint 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.[41] 51. When survival or other large interests are involved: `patriotism entails a willingness to go to war on one's community's behalf [42] 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 . Moderate Patriotism 52. Macintyre's view are rejected by 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'[43] Nathanson defines moderate patriotism as preference (presumably, in action) for one's nation, its traditions and institutions, and one's fellow nationals, but within the limits of morality[44] that is, provided one does not violate the "legitimate needs and interests of other nations" and their nationals [45] Anti Patriotism 53. Gomberg in turn rejects Nathanson's moderate patriotism. Gomberg's principal argument is that patriotism, indeed nationalism if there is a difference, can not be meaningfully distinguished from racism. Race is not a morally acceptable ground to differentiate between persons. I take it we all, save the Member for Oxley and her followers accept that. If that is true, then how is nationality different to race - both were accidents of birth[46] Gomberg argues moderate racism is as unacceptable as racism. He also argues that Nathanson 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 universalism. 54. 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. 55. The first example is of conflict between nations over resources, typically land and its products and often population. In the extreme case, the way of life of a national community might be at stake (although claims that this is so are often hyperbole-does the U.S. national way of life depend on imported oil?)[47] 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 (he puts his condition in both ways)[48] 56. 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 nationalism[49] in the same way that they should struggle against racism. 57. But what is wrong with racism? As we have seen the traditional answer is that it is morally arbitrary, ie. it provides no good reason for discriminating between people. This reason can be further analysed. 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 generalisations are common to nationality as well, eg. The English don't wash, the Irish are stupid and Australians are good mates. But it does not end there. It is common to generalise about the characteristics of women versus men. Women are sensitive, men are not. What all such generalisations do, though they may contain a grain or truth, is to fail to take seriously the individuality of people, be they of a particular race, nationality or gender. Taking seriously human individuality ironically entails a recognition that humans have more in common than difference. They fell 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 to belong to a group or groups. People everywhere are familiar with the word morality despite post modernist claims that the word is meaningless. 58. This 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. I am suggesting here that nationalism is essentially the same. Patriots must believe their nation is a more deserving recipient of their loyalty then other groups. They do not take seriously the individuality and humanity of their nation or the members of other nations. 59. It is not then surprising that contemporary affairs feature indigenous identity, ethnic minority and suppressed nationality issues. These are not pulling away from trends towards globalisation. On the contrary, part of recognising human individuality, the underlying reason for elevating human identity issues and globalisation trends, is to recognise 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, ethnic minority, suppressed national, or indeed ordinary citizens identity is shaped by the perception of membership of the group which includes the world community. 60. It is also natural to for people to worry that such people as indigenous groups should recognise 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 is why many today feel some antagonism at indigenous and such like issues and helps explain why the One nation phenomena has capitalised on this misconception. Collective Responsibility Assumption of Nationalism as Contrary to Justice 61. Another reason for rejecting patriotism is that it requires citizens to be responsible for their governments actions irrespective of whether the citizen lives in a functioning democracy or not or whether they approve of the governments actions. The most arbitrary aspect of war is the notion of collective responsibility - a notion rejected in the justice systems of most countries. A soldier might well have become the best friend of the person 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, members of clubs are not responsible for the non club activity of fellow members. Yet citizens, including those living in non democracies, are held accountable for their government's actions. 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. 62. 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, eg. in self defence, should we refuse to participate and thus be branded traitors. What ideology justifies non participation if we are not pacifists? Some Nations Have Disproportionate Control of World Resources 63. Australia has a population a little larger than the number of babies born each year in China[50] yet we control roughly 8% of the world's natural resources.. The population of China is roughly 25%, or one in four people on earth. We treat these resources as our own absolute property. Can this be just? Many nation's tax systems are premised on the notion of progressive tax rates, ie. the more 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. One workable solution is to allow anyone to invest in these natural resources. Christian Internationalism 64. Christianity has been used over the centuries, yet before a rightly more sceptical audience today, to justify many practices from capital punishment and war to the more vicious forms of capitalism, disparagement of an entire race and the subjugation of women. Given the central message of Christianity, it seems a good test of authenticity, is whether the interpretation accords with this central message of a compassionate and selfless love and the ideal of loving one' enemies. Applying this teat and bearing in mind the divisions in society which existed in the first century AD the reader may care to assess the meaning of St. Paul's words in the present context: "In Christ there is no Greek or Jew, no slave or free"[51] Alternatives to Globalisation - Reciprocity in International Trade Policy 65. 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[52] to the greatest number.[53] Even assuming the persons to be benefited are citizens, national trade policy which 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 which 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 they have satisfied national pride but deprived themselves of opportunities to gain foreign capital, the one commodity they must have if they are to develop. 66. 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, market access and protection of intellectual property[54] was to provide a larger bundle of rights to the foreigner than was available to the local resident. Colonialism one might say, but this is clearly wrong as otherwise the concession would only be to British traders and investors, not all foreigners. 67. The fact is that giving other nations more access to your markets than they give you in fact helps you in the long run. Governments who know this to be true, can rarely allow themselves to be seen by their constituents to be pursuing unilateral trade liberalisation `.. Economic theory shows that unilateral trade liberalisation also increases the economic welfare of the liberalising country; under flexible exchange rates as they exist since 1971, unilateral trade liberalisation plus monetary adjustments can also generate similar compensatory payments and employment effects as reciprocal trade liberalisation. The main reasons why governments prefer, nonetheless, to liberalise trade through reciprocal agreements, rather than unilaterally, are political and legal rather than economic'[55] 68. Leaving aside the European Union, virtually the only nation which stands to benefit from reciprocity in trade policy, at least in the short term, is the United States, the world's largest market and investor[56] 69. In signing the World Trade Organisation Treaty this nation has chosen to forgo this option. This was one reason why many US congressional opponents of the WTO treaty rightly say loss of American sovereignty as a concomitant of accession to the treaty and a loss the US did not need to make in order to obtain the trade benefits it sought[57] The US could have done so, in fact for a time did, seek bilateral reciprocal agreements with all it's trading partners threatening where necessary to withdraw market access to the US if rebuffed. Global Free Trade is Necessary For the Same Reason as Market Economies 70. This advocacy of the desirability of free international trade is based on a raft of assumptions about the universal primacy (though not moral primacy) of the self interest of individuals. Those assumptions are essentially the same as the arguments for the desirability of market economies. Market economies clearly work. Based as it is on the same self interest assumptions, free international trade should also work. Let's briefly unwrap some of these ethical, psychological, economic but at base epistemological assumptions about self interest. 71. The demise of communism in the former Soviet Union and in Eastern Europe in the 1980's; the demonstrated efficiency of privatisation in the same decade; both conclusively foreclosed debate on the desirability of market economies except amongst the academic Marxist faithful and post modernist apologists. This is now taken as axiomatic everywhere, except perhaps Cuba and North Korea. This is not a fundamentally economic conclusion, but stems from what most of us already know about ourselves and others. 72. Implicit in most moral and religious teaching is the recognition that we humans are all inclined to prefer the interests of self and to refuse to care for others, unless they are significant others such as family, whose interests therefore corresponds with self preference anyway. 73. In most situations in life a person's initial motivation will be selfish. Selfishness need not involve a crude and blatant disregard for the interests of others. There is a more sophisticated form that may be termed `prudential selfishness'. This involves actually paying careful attention to the interests of others, but not because they are our prime concern. Rather our aim is to be able to disguise our selfishness when it conflicts with the interests of others. We do so only to avoid a negative response, such as being branded selfish and not worth caring about, which would run counter to our own interests. In one sense this is no more or no less than a definition of rational conduct [58] 74. I think this is also what is meant by the admonishment, in much moral teaching in inherent in most of the world's major religions, against the inherent tendency (temptation if you prefer) to refuse to care or be concerned for others (in Judeo Christian writing this is probably what is meant by original sin). Moral and religious teaching presents this selfish inclination as a personal challenge to resist, knowing as we do that we will frequently succumb. If we accept this, then apart from our personal life this fact has consequences for the way we should, and in fact generally do, arrange the institutions and laws of our society. I will return to this later. 75. There is much in contemporary science which supports this view of the world. Evolutionary psychologist Jerome Barkow writes [59] that the mind is designed through its evolutionary history of survival as aware that it is dependent upon reproduction. Individuals who can best interpret each other's motives leave behind more descendants than those who can not. To succeed, man, like many social animals, depends on knowing and manipulating his or her fellows. This, Barkow and his fellow authors argue, is the key to understanding all human conduct. They argue for the need to rescue the concept of a universal human nature, what I have termed the inherent tendency to refuse to care and be concerned for others and the knowledge that this is wrong, from the anthropologist's obsession with human differences giving rise to theories based on cultural relativism or the arcane prose of the post modernist. 76. Similarly Richard Leakey recently hypothesised in 'Origins Reconsidered' [60] that what made people different from other apes and proto people was that they reached a critical threshold of imagination that enabled them to get progressively better at deceiving their fellow people: the so called Machiavelli hypothesis. Deception and detecting deception both gave ever greater advantage to larger brain size. Leakey argues humanity began with a lie, or I would argue, at least the temptation to lie. Is this really at variance with Biblical account in Genesis? 77. The primary assumption of moral religious and family training and example should be to implore the individual to overcome this basic instinct and seek to serve others. Given this inherent drive to refuse to care for others, it would be naive and disastrous to set up institutions, economic systems and laws which assumed people will always act altruistically [61] On the contrary they must be arranged in such a way as to take account of persons acting mostly out of self interest. Theoretical Marxism, and to the extent that Marxist systems were sought to be emulated in communist countries, failed and will ultimately fail in Cuba and Korea, because they assume that at a claimed historical point (the end of the class struggle, the successful dictatorship of the proletariat leading to the final stage of communism) people will act spontaneously and co-operatively in a truly human manner[62] 78. The Paris Commune, Bakunin and revisionist anarchism, even certain forms of Kibbutzim, unrevised socialism (though moderate welfarism is I believe immune) will in the long term fail because people's first instinct is to act for themselves. If this analysis is correct it has inevitable consequences for the choice of economic systems and the international community. 79. Two such institutional choices are market economies[63] and free global trade. You can not be convinced of one and not the other as this implies contradiction. Self interest of individuals assures the success of both. The job of religion and morality is to re-direct and temper the excesses of exclusive self interest towards the care and concern for others knowing they will never fully succeed unless the nature of humanity itself changes. International Humanitarian Aid 80. Aid recipient countries are the very countries which tariffs, subsidies and other trade barriers are principally directed against. Textiles from Bangladesh, Somalia or Laos can not compete in most developed country markets because, say 20% or more has to be added to the cost of their products as import duty. This exacerbates economic conditions at home and attenuates the need for aid. 81. 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', `Buy Australian Made'. This is a form of trade distortion and robs poor countries of markets [64] If the Chinese made kettle or toaster is the best for the price, and the decision to buy the flag is made on patriotic grounds, the best product is denied a market. If the poor country produces the best yet still can not sell, its likelihood of needing humanitarian aid in the near future is greatly increased. `What can we do! You will not allow us to sell our goods' - it might implore the rich world! 82. 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 1% of GDP to international humanitarian aid [65] 83. Australia pays 0.1% of GDP. Of this amount a large proportion is paid to successful Australian companies who tender for aid contracts eg, the Thailand bridge project. 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 this job but in many areas the recipient country has an entity which can do the job[66] yet notwithstanding, it goes to a company of the donor country. Recently 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 procedures. 84. 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 labours. Oddly again, when this threatens to happen, the political rhetoric of all parties (One nation is not alone here) is in terms of exploited labour in Asian sweat shops threatening local employment. Exploited they may be, and sweaty they are, but at least they give a promise of life, the most basic of all human rights and one of the most ignored. Individual Rights Rights Language & Law 85. Rights and their supremacy are the lifeblood of modern law. They are essential to law's role in protecting against abuse, though this rights supremacy has created a number of problems in relation to what is moral conduct. Because one has and ought to have a legal right does not 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 yield, in Confucian terms. 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[67] the West is rightly critical. All of this however, is another matter, but important to state less the importance of rights be overstressed. 86. Rights are essentially claims which 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 we think. In the past citizens were the objects 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 we as individuals are the objects of governance and that we can legitimately assert claims against those who govern us. This is an enormously changed perspective and it explains what is in common with indigenous rights, suppressed national minority rights and globalisation. These perspective's are not conceivable without the concept of rights. Like indigenous rights and suppressed national minority rights, globalisation begins with individual (not national) rights and embraces other rights which have commercial ends. Many of these rights are sought to be implemented through the concept of national treatment. 87. National treatment requires a nation to treat foreigners no worse than they do their own citizens. National treatment stands in contradistinction to reciprocity, we treat your nationals in the same way you treat ours. In the longer term that principle of national treatment, I believe, made justiciable at the behest of individuals across a wide range of international treaties from security to environment to international unionism and a guaranteed daily calorie intake for all people, 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. Human Rights 88. We talk freely today of human rights [68] 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 till it is of daily concern to national leaders. The constituents of democratic nations demand their politicians 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, to the beginnings an attempt to provide basic rights from evils like poverty, illiteracy, disease and the like. It is unlikely a guaranteed international basic wage could ever be achieved in the absence of an international currency, 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 UN right to food concept is a start. Indigenous, Ethnic Minority & Suppressed Nationality Rights 89. 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 non Aboriginals. 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 are unlikely to be progress the interests of the disadvantaged or globalsisation. Regrettably such matters 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 recognised 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 the massacre of students in Tiannamen Square is one example, 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 involve large numbers of individual human rights abuses and could meaningfully be dealt with by international agencies. Environmental Rights 90. 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 of 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 such a country not be allowed to locate toxic industries within its borders knowing they will cause premature death to citizens and neighbours 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 are the stark choices which make so many undeveloped countries angry at the moralising 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 Hydro Carbon Emission Targets Treaty signed in Tokyo in 1997 is an example of a shirking of this country's duty to preserve the environment for the future children of all nations. Globalisation Rights 91. While Human rights are a type of fundamental individual right so too globalisation 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 `Globalisation Rights'. 92. These are not merely commercial rights, rather the commerce 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 globalisation can come later. 93. A non exhaustive list of Globalisation 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 (not residence) across borders, and the right to hold multiple nationality. Right to Security 94. We all have a basic right to be safe and therefore defended. The deployment of a national defence force outside of national borders without any specific international authorisation (such as a UN Security Council Authorisation) is historically justified by the concept of sovereignty of the nation state. The UN Charter specifically provides for the right of collective self defence which is a further justification of locating military forces beyond national borders. Such was the justification for the Warsaw Pact and is the justification for NATO and other military alliances. The right to security can never be assured while the right to deploy national defence forces outside of national borders without UN Security Council authorisation continues. Boutros Boutros Ghali's suggestion of a standing United Nations peace keeping force was strongly rejected by the Security Council and it is rumoured was the real reason for not renewing his term as Secretary General of the United Nations. Right to Trade Across National Borders 95. Democracies often respond to electoral concerns, however wrong headed the populist view may be. This is the realm of the `level playing field', political hyperbole if ever there was one.[69] Reciprocity in trade policy is doomed to failure unless you are one of the largest, most profitable markets. For most developed, and all developing and underdeveloped nations it is better to give as favourable terms to foreign traders (more favourable if you wish) as you do to your own citizens, that way foreign capital and investments will flow freely. This is because developing and undeveloped 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 and lower living standards as well as increasing unemployment. These take many forms and are often disguised, eg. local television program content rules are really protectionism for local media. If local programs are good they will command an audience and sell. If not, why force them on viewers who may wish to watch foreign programming such as New Zealand programs which until recently were classified as foreign. American cultural hegemony will only proliferate though this medium so long as the rest of the world provides no competition. 96. Globalisation tends to make consumer interests different to that of their 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 trade barriers cost the US consumer $80 billion a year[70] yet US citizens have no right to a role in most trade proceedings in the US International trade Commission and the US Commerce Department. The reason is clearly that consumer interests may be different to US government trade policy which may favour rent seeking US interests, eg. Mid West wheat farmers who wish to deny access to foreign grain by dressing up the restriction in terms of agricultural regulations which in the name of public health allow the use of only one fertiliser, namely the one routinely used in the US[71] This is definitely worth a sizeable donation to the political party implementing the protectionism. 97. Countries do not, must not have the right to cheat their citizens and global neighbours by creating tariffs, subsidies and other distortions to trade. The recent decision to retain tariffs in respect of the automotive industry and the textile, clothing, and footwear industries in this country are examples. 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 till a little later, but on a much larger scale. In the short time Australians donate their tax dollars to help the industries break even as well as paying a great deal more than the international market price for cars, clothes and clothes. 98. Nationality must be deemed legally irrelevant to all aspects of international trade. All subsidies, tariffs, prohibitions on dumping and other distortions to free international competition 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. 99. During the period of colonial expansion it has been said that the flag followed trade, ie 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. The international trade institutions such as World Trade Organisation, International Monetary Fund, Group of 8 and others including the trade blocks such as European Union, North American Free Trade Agreement, Asia Pacific Economic Council are stop gap measures towards a supranational entity to fulfil the same function as flag. By far the most important international trade institution is the World Trade Institution (WTO). World Trade Organisation (WTO) 100. 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 Trade created in Havana in 1948 and takes over administration of all former GATT treaties and functions. WTO comprises 133 members with the notable exception of China which is literally desperate to join.[72] 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. 101. The WTO agreements deal with: agriculture, textiles and clothing, banking, telecommunications, government purchases, industrial standards, food sanitation regulations, intellectual property (TRIPs) amongst others. The key principles of the WTO are as follows. Non discrimination - a country should not discriminate between its trading partners (they are all, equally, granted "most-favoured-nation" or MFN status). National treatment - once goods or services arrive in the country it should not discriminate between its own and foreign products, services or nationals. Freeing of trade barriers or market opening by negotiation. Transparency - foreign companies, investors and governments should beconfident that trade barriers (including tariffs, non-tariff barriers and othermeasures) should not be raised arbitrarily. More and more tariff rates and market-opening commitments are "bound" in the WTO. Competition - by discouraging "unfair" practices such as export subsidies and dumping products at below cost to gain market share. 102. According to the WTO Director, Renato Ruggiero , the dispute settlement procedure the WTO's most individual contribution to the stability of the global economy. He is quoted as saying. `Without enforcement, the rules-based system would be worthless. The WTO's procedure underscores the rule of law, and it makes the trading system more secure and predictable. It is clearly structured, with flexible timetables set for completing a case. First rulings are made by a panel. Appeals based on points of law are possible. All final rulings or decisions are made by the WTO's full membership. No single country can block these'.[73] 103. 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 as between WTO members and in certain areas duties, tariffs and subsidies are controlled. Bot this is not in all or even most areas. While services are covered by one of the WTO agreements it Laos is far from comprehensive. Some tariffs do not look like a tariff at first blush, eg. national local content laws 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 it can apportion priority raising cultural consciousness in order to differentiate itself from the all pervasive American program then perhaps it deserves to be subsumed. 104. The 1994 Agreement Establishing the World Trade Organisation (W T O) is the world's most ambitious concluded globalising treaty. The key feature 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 upon the basis of political decisions by the executive. The WTO treaty is the first international treaty which is not reliant upon political decisions to impose sanctions in order to enforce its stipulation's. WTO 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. Trade Related Intellectual Property Rights Agreement (TRIPs) 105. If the assertion is true, and barring global war it seems likely, society will soon move to an information based society where information is more valuable than our present system of land, labour and capital society, then trade in information is only possible if legal rights to information is devised. Information can not 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 and Berne Conventions of the late nineteenth century have made intellectual property law more uniform across nations than virtually any other area of law.[74] 106. With the recent linking of international trade to intellectual property in the World Trade Organisation 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. What are essentially the private law rights of copyright and related rights (ie. the rights of performers, producers of sound recordings and broadcasting organisations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data., have been precisely defined and required by nations to be applied under threat of quasi judicial automatic sanctions[75] 107. At the heart of the Paris and Berne Conventions, the TRIPs agreement and the draft convention the Multilateral Agreement on Investments (MAI), is the principle of national treatment. TRIPs requires member states of the WTO to provide in their national laws for precise and specific intellectual property rights, some by reference to 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 results in automatic trade sanctions, effectively withdrawing the right to trade with WTO members. Non compliance with TRIPS is determined by a special dispute resolution process with a right of appeal to an appellate body. This process is discussed below. Right to International Non Partisan Dispute Settlement 108. The WTO dispute settlement system and the European Union's Court of Justice are two of the most effective, quasi judicial international bodies. Their orders are enforceable and enforced. The European Court of Justice has the task of ensuring compliance by member states with European Union Law. There are a variety of mechanism's to trigger the court's jurisdiction from suits by the European Commission against member states to references to the court by national courts[76] 109. National governments, the UK Thatcher government was one of the worst, have railed against the European Union institutions and the court, yet it has stood for over forty years. Judges for the Court of Justice 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 assure member states of their remnant sovereignty and only to override that sovereignty when absolutely necessary. Judicial activism, of the type seen in this country 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. 110. 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 possible.[77] 111. A permanent international criminal court is currently being mooted. Already the United States and Australia amongst others have rejected the view that there be an independent prosecutor. The US and Australia prefer references to the court only originate through the political processes of the UN Security Council. This is a great pity as it is akin to making a decision to try a person for murder in domestic law depend on ministerial or cabinet decisions. WTO Dispute Settlement System 112. The WTO dispute settlement system[78] has heard a large number of cases[79] A recent decision, which is illustrative of the process, was the first case to arise under TRIPs. In United States and India[80] the United States, via it's Trade Representative Ambassador Charnel Barshefsky, was persuaded by a US 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 US 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. 113. The Indian Government had in fact made two attempts to pass laws implementing the TRIPs requirements[81] but due to electoral defeat and a change to a government hostile to such laws the legislation lapsed. However, this was 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. However, more 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. 114. This case demonstrates that the ultimate appeal on matters which can be argued to come within the WTO treaty is not the apex court in the judicial hierarchy, in Australia's case the High Court. Rather the ultimate court in these circumstances is the Appellate Body of the WTO. This augurs well for the future as a greater homogeneity of law will lead to a more integrated global economy and all I have argued that implies, principally less risk of war. Regrettably, individuals can not bring actions against governments under the WTO dispute resolution system but must persuade other governments to bring action. There is no good reason exclude individual actions against governments under international treaties, or at least by Non Governmental Organisation's (NGO's) such as national and international consumer groups. Consumer interests are different to government interests[82] Right to Invest Across Borders Draft Multilateral Agreement on Investments (MAI) 115. The Multilateral Agreement on Investments (MAI) is an OECD draft convention which has drawn huge criticism. It is intended as a response to globalisation of business. The cornerstone of the agreement like Paris, Berne and TRIPs, is the principle of national treatment. Investments by foreigners are to be treated no worse than citizen's investments.[83] 116. 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". 117. The MAI also creates uniform rules[84] which 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 privatisation of public enterprises; export requirements; 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 have caused a considerable amount of controversy. 118. 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).[85] 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. 119. 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 globalisation rights and brings closer the notion of global citizenship. Right to Incorporate Across Borders The Case for a Multinational Corporations Treaty 120. There are no true multinational or global corporations in the world today. So called multinationals are really US, European or Japanese companies with operations overseas. They are no true multinational or global corporations because a foreign company is required to nominate a parent company and a country of initial incorporation[86] 121. My colleague Fiona Macmillan comments[87] 122. "Prior to the conclusion of the MAI, the strongest argument in favour of the existence of a global corporate sector hinges upon the business activities of a very small group of multinationals 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 globalisation 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 corporate sector and the governments of nation states problematic". 122. It is suggested the most useful ally for achieving globalisation would be a true multinational or global company[88] Some would argue such global companies would be immensely more powerful than present day, so called multinationals, and thus dangerous. In some respects they would be, but corporations are predictable actors. Unlike governments, corporate entities are motivated by profit not jingoism, realisation of historic ambitions, lebensraum or hidden agendas. Nor are they bent on running fascist corporatist communities or become global media villains such as those of populist screen fame[89] which promote exaggerated populist fears of the corporation. My choice of enemy is the corporation rather than government. 123. 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, and in any event should a global corporation be able to control a Third World countries military the effect is likely to be more benign than corrupt civilian control. After all corporations sell goods and services - healthy, wealthy people are good for business. 124. The corporation is most dangerous when it is an agent of the nation. Hitler 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 EEC later EU evolved, was to combine the coal and steel industries of France and Germany so as to make war unprofitable. 125. 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 it trades in and must pay tax there. Companies pursue profit. Nations pursue glory, ambition, realisation of historic ideals and power beyond profit, as well as moral ends. Nations are difficult to predict the behaviour of due to multiplicity of motives. Corporations are easy to predict and therefore control, profit is the only motive. Right to Free Movement of Persons Across National Borders 126. Only peripherally addressed by the MAI is the right concomitant to trade, namely a rights to travel across national borders in order to allow the realisation of WTO, MAI and other major trade treaty objectives[90] On this basis it seems the right to travel across borders of itself is a globalisation right. 127. This 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, eg 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 needs to be the subject of an international agreement. The Right to Dual or Multiple Nationality 128. Many countries prohibit dual or multiple nationality[91] Since the 1984 amendments to the Citizenship Act 1984 (C'th), 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 result in the automatic loss of Australian citizenship[92] The 1984 amendments import a test of dominant intention which was absent in the pre 1984 law. 129. The situation prior to 1986 is illustrated by Allan v Dept of Foreign Affairs[93] 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 was held by the Administrative Appeals Tribunal to be a formal act in order to trigger his Irish citizenship with the result that he automatically lost his Australian citizenship. 130. The post 1986 law requires a formal act with the sole intention of acquiring citizenship and marriage to a foreign national which results in acquisition of foreign nationality is not so characterised. This formulation can bring about results quite different to Allan's case. Guergli v Dept of Immigration, Local Government and Ethnic Affairs[94] was on its facts similar to Allan's case. The case involved an Australian citizen whose mother was born in Switzerland, and applied for recognition of her rights to Swiss citizenship[95] 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 she did not lose her Australian citizenship as she was not acquiring a foreign nationality, that right was vested at her birth. In other words the AAT held 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'. 131. The High Court subsequently confirmed[96] that Australian common law recognises the international law concept of dual nationality, albeit that the purpose of the Citizenship Act 1948 (C'th) was to discourage it. 132. Prohibitions against dual nationality are wrong and an unacceptable face of nationalism. You can not logically endorse multiculturalism and oppose dual nationality. Such prohibitions are an attempt by a nation to force on an individual choice of allegiance by recognising 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. It was mooted 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 this 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 is a major constraint on how China treats Hong Kong. 133. 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 (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. One would not qualify as a refugee as 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. Conclusion 134. How we see ourselves explains much of what changes in history. At one time we recognised our family and clan as human only - all else was enemy, food or both. Later we recognised other clans and families as human. This 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. 135. No doubt controversially, it is this commentator'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 world 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 the adage `my country right or wrong' has n6bever 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 astronauts 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? 136. Paul Gomberg wrote: "....genuine universalism is possible, but only as a result of a struggle against patriotism and nationalism."[97] Tolstoy wrote of `...destroying patriotism.'[98] 137. Rather, I would suggest, patriotism and the attendant constraints 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 care for neighbours sometimes calling for the ultimate sacrifice. For twentieth century patriots neighbours exclude aliens and foreigners. In the next millennium the neighbours 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 it is the first duty of law to avoid[99] 138. So what are the possibilities? In the very long term a world federation with specifically defined limited powers comprised of member states with broad general law making powers and representing unique cultural traditions and achievements, and overseen by an world federation court with power to enforce its decisions, is a worthy and ultimately achievable political goal. In the short term is the need to whittle away the notion of sovereign state and build up the concept of globalisation rights as fundamental individual rights. This 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 NGO's, individuals and corporations. 139. If any of the foregoing has given you any cause you to wonder if globalisation is quite the evil it is often depicted, or prompted you to think about what it means to be a global citizen in the 21st century, then a major aim of this paper has been accomplished. Notes [1] My thanks to Ms. Deborah Ho for researching aspects of this paper. Also thanks to my friend and colleague Professor Ralph Simmonds for feedback on certain ideas in this lecture. This article is based on an inaugural professorial lecture given by the author at Murdoch University on 26 August 1998. [2] The writer would argue there are no true multinational companies, merely large North American, European and more recently Japanese corporations who trade globally. A true multinational corporation would be one incorporated under a supranational corporations law and not linked to any particular country. [3] The recent decline in the values of Asian currencies and equities was brought about by the calculations, projections, intuitions, and sheer herd instincts of investors world wide. Right or wrong they made their own decision uncoerced by government policy or other factors - not perfect market democracy but investors have the most to lose by their own decisions, unlike say government economic policy strategists. [4] Since the end of the Cold War in 1989 the UN, particularly the Security Council, has had an unprecedented role in international affairs. In addition the UN human rights treaties have since the end of the last world war attempted to codify universal values for the first time in human history. [5] It might be added, where the position of head of state is equally open to all, a key principal of democracy, not dependent on parentage, as are traditional systems such as royalty.. [6] Indigenous rights illustrate a concern for cultural autonomy, to right past injustices and promote diversity in much the same way that multiculturalism promotes diversity and cultural richness. Consider those Australian Multicultural Council advertisements featuring the theme `A World in a Country'. [7] I Kant, Ethics, Doubleday 253 (1980) [8] Fukuyama, F. 1989 The End of History, Quadrant, v.34(8), p.15-25. [9] Fukuyam, 8 in Walter, 54. [10] Ibid. [11] McMillan CJ 1994 Globalisation: Multilateralism Versus Regional Approaches, Business and the Contemporary World, v6(3) pp.137-152 at 142. [12] Sturgess, p.11 [13] Gellner in R Poole,1994-5 Nationalism: Last Rites? Arena Journal, vol4, pp.51-68 at 57. [14] Kanter (1993) 230. [15] Ffirst, (1992) 360 [16] Thurow, (1996),120 [17] Yip, 9 [18] Fujita, 8 and 12 [19] Christerson, 1365 [20] Whitehead, 54 [21] See below, 6.3 The Right to International Non Partisan Dispute Settlement - WTO Dispute Settlement System [22] Sovereignty and International Security: Challenges for the United Nations. Global Governance 2 (1996)149-168 at 155. [23] Ibid. [24] International Law and Security - Exploring a Symbiotic Relationship, Australian Journal International Affairs [25] The irony is part of the success of western civilisation. In order to counter contemporary Western trends towards globalisation 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 civilisation, rather it has become so ubiquitous that its logic, culture and rhetoric are everywhere employed, especially in maintaining arguments for cultural integrity or indigenous identity 25: `What seems to be clear is that the story of Western civilisation is now the story of mankind, its influence so suffused that old oppositions and antitheses are now meaningless. The West is hardly now a meaningful term, except to historians'. [26] Cited above fn 37 at 16. [27] These conclusions are based on Makinda, fn 25 above. [28] How long does it take to rebuild a weapons stockpile when the economy is on a war footing? [29] Patriotism or Peace at p106-7, in Tolstoy's Writings on Civil Disobedience and Non Violence (New York) North American Library, 1968, Bergman [30] `The first concrete foundation for a European Federation which is so indispensable for the preservation of peace'. English translation 22 Department of State Bulletin pp936. [31] Though ever increasing by treaty amendments. [32] After a genuinely fruitless, overly ambitious or sham job search. [33] One might recall the parable of the Good Samaritan. By spending his money on the injured Jewish traveller the Samaratan had less money to aid his fellow country men. But he was passing this man who needed help at this time. The fact that the man was a foreigner is a part of the story we perhaps have not really thought about. [34] The Royal Navy. [35] No doubt they felt intimidated and that the exercise may have been a waste of time though they must have persisted. [36] Patriotism or Peace at p75, in Tolstoy's Writings on Civil Disobedience and Non Violence (New York) North American Library, 1968, Bergman [37] Ibid. [38] Stateless persons are a special class of persons in international law who suffer a great many disabilities not the least of which is no legal right to reside anywhere on this planet. [39] `Is Patriotism a Virtue', Alastair Mac Intrye Lindley Lecture, University of Kansas, Philosophy Dept, 1984. [40] Ibid at p6. [41] Ibid at p.6. [42] Ibid, at p6. [43] In Defence of Moderate Patriotism Ethics 99(April 1989) 535-552, at p535. [44] Consider the actions of the moderate patriot in the light of criticism's of the rescue effort by US Marines after the recent bombing of the US Embassy in Nairobi and Tanzania. It seems little was done to assist the Kenyan emergency services occupied in the collapsed building adjacent the embassy. Even the Kenyan president Daniel Arap Moi, was apparently prohibited entry to the US Embassy in the aftermath of the bombing on the grounds of perceived security threat to US personnel.. [45] Ibid at p.538. [46] Or divine plan, though this writer will not accept a creator intended misfortune for some individuals, rather that others were to be given the opportunity to ameliorate misfortune. [47] This was written before the Gulf War, though that was a UN sanctioned action. [48] Ibid at pp. 541-42. [49] Ibid at p.150. [50] China has a population of 1.2 billion. Its population growth rate is 1%, thus 12 million a year are born. This is in fact Zero Population Growth, largely due to the one child policy. [51] Galatians 3,28. [52] Utilitarians differ on whether it is benefit, happiness, edification or even Jeremy Bentham's initial formulation Pleasure. [53] Who are to be counted is also problematic in utilitarian theory, citizens, foreigners, the environment, the biosphere etc. [54] For an overview of the law and policy see, Pendleton Colonial IP Law Law Discourages Local Innovation and Design (1989) 3 IP Asia 2. The writer is no longer critical of the policy and is not convinced it did discourage indigenous design expertise. [55] E U Petersmann `Why Do Governments Need the Uruguay Round Agreements, NAFTA and EEA? Swiss Review of International Economic Relations (Aussenwirtschaft) 1994, pp, 31- [55] [56] The US of itself comprises almost half of world trade by volume. [57] By continued reliance on s.301 and Super 301 of the US Trade Act which allowed retaliation against a nation found to be engaged in unfair trade practices - an inevitably partisan process. [58] Machiavelli , and Freud would probably agree. [59] The Adapted Mind Jerome Barkow, Leda Cosmides, John Toby. (1993) Oxford University Press,. [60] (1992) Little Brown, Doubleday. [61] Consider this analogy. Should loving parents assume their children will always tell the truth? Some parents will say to protect children they need to be able to verify. They make it clear the child's room is shared property they have the right to inspect. Reflecting sociological fashion, some parents may say they respect their children's privacy, particularly liberal educated parents. How many preventable juvenile drug users come from such admittedly loving yet naive families? [62] For a damning refutation of the historicism inherent in Marxism and other historical inevitability theories see Sir Isaiah Berlin, The Poverty of Historicism [63] Some right wing theorists argue there is a contradiction between market economies and a welfare system, eg. Charles Murray The Bell Curve (Viking) 1994). In the writer's view there is no such inconsistency. [64] Paul Gomberg `Patriotism is Like Racism' Ethics 101 (October 1990) 144-150 at p149.`A different argument can be made against patriotism that is not directed against oppressed nationalities. Consider the inoperative, "Buy American!" which is certainly presented as a patriotic duty. Now, if directed against Philippine, Brazilian, or Chinese imports, the earlier argument applies. But suppose it is directed against Japanese imports. Here the Japanese are regarded as both privileged and unfair (although the main consideration offered in favour 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 antagonism. [65] Dept of Foreign Affairs & Trade Report on aid 1996. [66] Though we should have had to tender against foreign intellectual property institutions . [67] "There is no unified Asian view on human rights and freedom of the press. These are Western concepts". Mahbubani, K, Live and Let Live: Allow Asians to Choose their Own Course, Far Eastern Economic Review, 17 June 1993, p27. [68] A creation of the Atlantics treaty 1945, the UN Universal Declaration of Human Rights. [69] Anti dumping laws are symptomatic. If a nation can produce goods or commodities so cheaply that it can afford to sell for at or below production costs why should this be prohibited. If done by a national of your country it would be applauded . [70] J. Bovard The Fair Trade Fraud 1991,p.4. [71] To be fair, other than in the area of commodities the US has the most open markets and investment regime to be found anywhere, except perhaps Hong Kong. [72] Negotiations with China are proceeding. [73] WTO Dispute settlement http://www.wto.org/wto/about/dispute2.htm [74] That's why we intellectual property lawyers enjoy a high degree of employment mobility (subject to language constraints). [75] For a full and critical assessment of TRIPs see my colleague Michael Blakeney's book Trade Related Intellectual Property Rights (1997) Sweet & Maxwell, London [76] Article 177 Treaty of Rome reference. [77] 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. [78] And its forerunner the GATT dispute resolution system. [79] Many decisions have been against the United states and European Union. [80] See document WT/DS50/R of Sept 5, 1997 and WT/DSSO/AB/R. Also see C Macdonald-Brown & Leon Ferera First WTO Decision on TRIPs (1998) European Intellectual Property Review 69, and M N Schlesinger WTO Dispute Panel Finds for US in India Patent Case (1997) IP Asia November, p14. [81] Articles 70.8 and 70.9 of TRIPs. [82] See 6.2 Right to Trade Across National Borders above. [83] See F Macmillan `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 Favoured Nation treatment (MAI Negotiating Text (as of 24 April 1998), Article III) The principle of national treatment will require signatory states to treat foreign investors as least as favourably as it treats its own national investors for the purposes of its laws and regulations on investment. Most Favoured Nation treatment, on the other hand, requires signatory states not to discriminate between investors or investors emanating from other MAI member states (MAI Negotiating Text (as of 24 April 1998), Article III). [84] Termed "specific disciplines" and "performance indicators". [85] Treaty not yet ratified. [86] "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 that jurisdiction." Fiona Macmillan, Corporate Disclosure on-Line. An Appropriate Response to Globalisation Forthcoming p.6. [87] Ibid. [88] 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 [89] Robocop ,or the barely disguised global media villain in 007's latest ,Tomorrow Never Dies. [90] The present draft of the MAI denies sovereignty to a nation to impede the entry into a contracting state of investors and key personnel. [91] Incidentally the United States, one of the most nationalistic of states, revised its prohibition on acquiring dual nationality some time ago. [92] S.17. [93] (1986) 5 AAA ( Aust Administrative Appeals) 432 [94] (1991)13 AAA 40. [95] The case is an appalling example of relying on Consular advice. [96] Sykes v Cleary & Ors (1993) 67 ALJR 59. [97] Gomberg p150. [98] Fn.20 above. [99] Is it a legitimate protest to refuse to stand for the national anthem? If it is, surely one should refuse to stand for all national anthems and this seems a discourtesy whether at home or abroad. Pity the Americans and their Pledge of Allegiance - that may be another matter.