[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-
[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.