Global Governance, Economy and Law

Waiting for Justice

Errol Mendes, Ozay Mehmet

• Publisher: Routledge
• Year: 2003
• eBook ISBN: 9781134458257
• Edition: 1
• Topic: Business
• Subtopic: Business General
• Index: Business

This book provides a critical examination of the most important institutions of global governance in the world today. Drawing on history, political science, law and economics, the authors examine institutions such as the United Nations, the World Trade Organization (WTO), the International Monetary Fund (IMF), the World Bank and also the global pri

1 The “Tragic Flaw” of Humanity Reflected in the United Nations and the Struggle for Human Rights

Prelude to the United Nations: The Age of Hope

The institutions of global governance and law that we know today have their roots in one of the darkest periods of human history. Their beginnings showed a mirror up to the tragic flaw within the nature of humanity.

In this work we define global governance to include not only the institutions set up to deal with issues of global scope, but also the situations that evolve in the absence of appropriate and effective institutions to deal with such global matters. Our concept of the “tragic flaw” is adapted from Shakespearean tragedy, and encapsulates the notion that there can be one or more particular characteristics of an individual, a group, a nation, or indeed institutions organized by humans that can eventually undermine their other good qualities and potentially threaten their existence. We describe human nature as including the inclination toward justice which promotes human progress as well as the inclination toward domination and exploitation that retards such progress. The history and texts of moral philosophy worldwide are filled with both the analysis of and the tension between these two fundamental characteristics of human nature. In this chapter, and to a lesser extent throughout this text, we will use this notion of the tragic flaw as an instrument to critically examine the moral regime of some of the key institutions of global governance. Finally, given our above definitions of these universal contradictions in human nature, the simple definition of justice we use in this work is one based on the notion of the universal moral Golden Rule, or is one that approximates the Kantian categorical imperative, which can be recast as a Golden Rule of Justice to “do unto others as you would have them do unto you.”

In this first chapter, our thesis is that the aspirations of humankind to eradicate the conditions that led to the Second World War and the evils that occurred during the war were soon overwhelmed by the tragic flaw within the nature of humankind. This tragic flaw, as we will demonstrate in this chapter, is the urge in human nature, which is then reflected in the institutions of global governance, to seek the supremacy of territorial integrity over human integrity and dignity in the pursuit of perceived collective power and self-interest. We argue that this occurred even among those who showed the greatest enthusiasm for advancing human progress and human rights through institutions of global governance in the aftermath of the Second World War. We will demonstrate how these enthusiasts even turned the other way in the face of the most brutal genocides since the Holocaust during the Second World War.

It was August of 1941, “somewhere in the Atlantic,” that President Roosevelt agreed to meet and discuss with Winston Churchill the growing threat of aggression from Hitler’s Nazi Germany and the increasing desire for world dominance of the Axis Powers. The United States (US) was still not at war, but the pressure was building from within the US to assist the British in what increasingly looked like a last-ditch attempt to save Europe, and Britain itself from the shadow of Fascist totalitarianism.

The location of the naval force that brought the two world statesmen together should be of special interest to Canadians, for it was at Placentia Bay in the waters off Newfoundland. A leading historian of human rights, Paul Gordon Lauren, describes the meeting of the leaders as an almost desperate attempt to save the peoples of Europe and the rest of the world from a cataclysm of evil.¹ The primary focus of the discussion between the two leaders, according to Lauren, concerned the role of the United States in the war. While the United States was still a non-belligerent, discussions took place on how it could assist in the fight for the survival of freedom and human dignity in Europe, North Africa, and Asia. The plan needed a foundation of principles that could serve to inspire and lead their respective populations into action. Those principles, drafted in haste by Churchill and Roosevelt on the waters off the coast of Newfoundland, were announced to the world as the Atlantic Charter. The Charter would become the catalyst for the idea of the United Nations (UN). The Atlantic Charter was the first international document (conceived in the midst of the greatest carnage ever seen in human history) in which two great world leaders had the courage to declare the right of all peoples to “live out their lives in freedom from want and fear,” and the need for “a wider and permanent system of general security for the world.” It should also be noted that at this time, before the General Agreement on Tariffs and Trade (GATT), the World Trade Organization (WTO), the International Monetary Fund (IMF) or the World Bank had taken shape, the Atlantic Charter contained principles that linked the imperative for a new global security institution and respect for human rights with improved labor standards, economic advancement, and social security.²

The approval of the Atlantic Charter was swift from all the Allied powers at the first meeting of the Inter-Allied Council (which included the Soviet Union).

With the torpedoing of American isolationism at Pearl Harbor in December of 1941, the need was great for the Atlantic Charter to galvanize more nations, especially in the Asian theater of war, into the fight against the evil of the Axis Powers. Lauren describes vividly how in January of 1942, twenty-six nations at first, and later forty-six nations, endorsed the Declaration of the United Nations. In doing so, these nations vowed to unite in the struggle against the Axis Powers and to adhere to the Atlantic Charter, including its call for the human rights of all peoples to be respected and for the creation of a global institution to ensure international peace and security. There was a consensus among the nations that agreed to the Declaration of the United Nations that sovereignty and territorial integrity could not be had at the expense of the fundamental rights of all human beings. The principles contained in the Atlantic Charter would be the rallying cry for the “people’s war” against the crushing of human dignity and rights perpetrated by the Axis Powers.³

However, history seemed determined to show the other side of human nature in operation, thereby demonstrating the tragic flaw in the character of humankind. In stark contrast to the conception of the Declaration of the United Nations, Lauren reveals that it was also in January of 1942, when the Declaration was being promulgated, that an unspeakable act of evil was also being planned. It was during this month that the Wannsee Conference was held just outside Berlin, where the genocide of entire races, and one in particular, was being planned with meticulous care and attention to detail. This plan was called the “final solution of the Jewish Question.” What was planned at Wannsee translated into the deaths of over eleven million people, including six million Jews, exterminated with the utmost cruelty solely on the basis of their race, ethnicity, religion, language, disability, sexual orientation, or simply because they were too young, too old, or too sick to be of any use to the Nazi forces.⁴

What is staggering about this dark period of human history is that Germany did not enter into this program of genocide devoid of an intellectual, religious, and moral history that would have proffered a myriad of reasons for not engaging in this barbaric plan. The instinct for dominance, self-interest, and territorial grandeur seems hardwired into the nature of humankind. This instinct creates a moral blind spot that centuries of intellectual, religious, and moral learning cannot undo. The only restraint against this blind spot that afflicts those with pretensions to civilization, and all others alike, is an effective rule of law together with regional and global governance institutions that ensure the rule of law, not individuals.

January of 1942 was the point in history when the tragic flaw in human nature became truly global. As discussed above, we define the tragic flaw in the nature of humankind as the struggle between the desire for dominance, self-interest, and territorial grandeur against the universal appeal of human dignity, conscience, and compassion. In the early millennia of human history, these human instincts battled against each other in small places on the planet, between and within tribes, settlements, villages, fortified towns, and cities and ultimately nations. But the defining moment when this struggle became global and laid the foundations for the institutions of global governance that included this tragic flaw was in the month of January of 1942.

However, no sooner was the end of the Second World War in sight, than the states that promoted the instinct toward human dignity, conscience, and compassion, contained in principles of the Atlantic Charter and the Declaration of the United Nations, also seemed to succumb to the temptations of the quest for dominance, self-interest, and territorial grandeur. As Lauren has stated:

When pressed, most of those leaders who spoke so eloquently about human rights quickly noted that statements like the Atlantic Charter and the Declaration of the United Nations represented only goals rather than legal agreements that might jeopardize national interests or threaten national sovereignty. It is in this context that Churchill made his celebrated statements about not allowing stated principles such as that of the right of self-determination to precipitate the liquidation of the British Empire, and describing the Atlantic Charter as “no more than a simple, rough and ready, war-time statement of a goal” toward which the supporting governments “mean to make their way” instead of a binding treaty with firm commitments.⁵

Even in Churchill, the tragic flaw was beginning to take hold in the scramble for collective power and self-interest in the aftermath of the Second World War.

Birth of the United Nations: One Step Forward, Two Back

While many nations had joined with the Great Powers in the fight to win the war against the Axis Powers, they were excluded from the first deliberations at Dumbarton Oaks in the fall of 1944. It was at Dumbarton Oaks that the United States, Britain, the Soviet Union, and China met to sketch out the Charter of the new global security organization that would come to be known as the United Nations. All but one Great Power agreed that the Charter would not contain any substantial provisions on human rights.⁶

It is an irony of history that the only participant at Dumbarton Oaks that wanted a reference to the right of all people to equality and non-discrimination was China. China reflected the concern of many countries of the South, and Asian countries in particular, that the new institutions of global governance would allow the colonial powers to prevent decolonization and self-determination of colonized peoples.

And so at Dumbarton Oaks in 1944, the struggle swung entirely in favor of the human instinct for dominance and self-interest when the Great Powers developed a post-war global security institution which was to be dominated by them. The Great Powers were able to ensure their dominance by creating a new Security Council that gave them both permanent membership and the power of veto. Their design for the organization, which involved the formation of a weaker General Assembly where the secondary powers could “blow off steam” without endangering the interests of the Great Powers, also assisted in cementing their hegemony. The emphasis by the Great Powers at Dumbarton Oaks and in the period that followed was on national sovereignty, territorial integrity, and political independence, which meant non-interference in the domestic affairs of the Great Powers. The only reference to human rights was in the context of general economic and social cooperation.⁷ According to Lauren, the then US secretary of state, Cordell Hull, poured derision on the efforts of his own under-secretary, Sumner Welles, to promote an International Bill of Rights, stating that no concept of universal human rights would undermine the national sovereignty of the United States.⁸

In the struggles of human nature that comprise the tragic flaw of humankind, the history of the Second World War and its aftermath show that enfeebled law-making that promotes dominance, self-interest, and territorial grandeur usually comes out stronger in the short term. Justice takes much longer to surface.

The catalyst for justice often begins with an outcry against law-making that does not include it. So it was with the creation of the United Nations Charter that we know today. When the Dumbarton Oaks proposals for the creation of the United Nations were made known, there was a storm of criticism that went around the world from citizens, non-governmental organizations (NGOs), and those countries left out of the Great Powers’ self-interested power structures inherent in the proposed Security Council and the General Assembly. There was particular anger over the omission of any substantial global protection of human rights and the right to self-determination. In 1945, with the end of the war in sight, the Great Powers eventually accepted that another conference, this time involving states from all parts of the world, should be held to hammer out the final version of the Charter of the United Nations. This conference would take place in San Francisco in April of 1945.

While the gathering constituted the largest number of states assembled at that time to lay the foundations of the United Nations, they were also mindful of the failure of the product of the last similar gathering at the end of the First World War which led to the ineffectual and ultimately doomed League of Nations.⁹

The rhetoric for the ideals of peace, global security, human dignity, and human rights flew high at San Francisco, but the Great Powers stuck in large part to their Dumbarton Oaks proposals. Before the conference was over, the surrender of Germany also saw the first stirring of the Cold War at the birth of the United Nations. This reinforced the non-human-rights focus of the Great Powers. It was the representation from the rest of the international community, such as from India, South Africa, New Zealand, Australia, Egypt, the Philippines, and the countries of Latin America, that pushed for the democratization of the Dumbarton Oaks deliberations as described by Lauren.¹⁰ It was from these countries that proposals to amend the Dumbarton Oaks text came. In particular, these proposals called for the insertion of the primacy and protection of human rights into the Charter. These countries were joined in their efforts by an army of individuals, groups, and NGOs from around the world. Of particular concern to many of the smaller nations that were either former colonies or were fighting for independence were the human rights of those in colonies and dependent territories.

The Great Powers eventually succumbed to the pressure from the rest of the world. They agreed to a substantial number of their demands to put in place provisions for human rights in the Charter and for specific parts of the new United Nations to take lead roles in the promotion and protection of human rights, but without substantially altering the entrenched power structures agreed to at Dumbarton Oaks. The stage was being set for the insertion of the tragic flaw in the Charter of the United Nations. In particular, the drafters of the United Nations Charter seemed determined to include the supremacy of territorial integrity and political independence, while allowing weaker language on human rights to enter the constitution of the global body.

On 26 June 1945, there was a signing ceremony for the world leaders assembled at San Francisco, two months after the work on the United Nations Charter had begun. Fresh from victory in the war and with the chill of the Cold War starting to take effect, the Great Powers had managed to insert the two dueling concepts into the United Nations Charter at the signing ceremony in the Veterans Building Auditorium in San Francisco.

One of the concepts, as noted above, was the supremacy of territorial integrity. The central purpose of the new world body as stated in Article 1 was to maintain international peace and security. The principal condition for such peace and security was territorial integrity and the concomitant principle of political independence of the nation-state. The five permanent members of the new Security Council, whose primary responsibility would be to maintain international peace and security, could guarantee their own territorial integrity and political independence (and those of their allies) by the veto powers that the Charter bestowed on them.

The foundational principle based on territorial integrity and political independence in the United Nations Charter was that, if one nation did attack the territorial integrity of another, the Security Council would have the means through the Chapter VII enforcement powers to take effective collective measures. These powers allow for the prevention and removal of threats to the peace, and for suppression of acts of aggression and other breaches of the peace. Indeed, so sacred was the principle of territorial integrity and political independence that at the San Francisco conference, most of the Great Powers were adamant that not even the United Nations itself could intervene within the domestic jurisdiction of the nation-state. While, in theory, the new powerful Security Council could conclude that serious human rights violations might constitute a threat to international peace and securi...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• List of illustrations
• Preface
• Acknowledgements
• 1. The “tragic flaw” of humanity reflected in the United Nations and the struggle for human rights
• 2. World trade: for whose benefit?
• 3. Power and responsibility: the ethical and international legal duties of the global private sector
• 4. From a “race-to-the-bottom” to social justice in the global labor market
• 5. The failure of the international financial system and financing global justice – the World Development Fund: a global Marshall Plan
• 6. Toward global pluralism
• Notes
• Bibliography (selected)
• Index