Rightways: Doctrine of Discovery

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Monday, July 4, 2022

Whither the international rules-based order?

US’ so-called rule-based order means international gangsterism

The United States’ so-called rule-based order is gangsterism while its sanctions on other countries are illegal, a renowned Canadian lawyer has said a recent interview. Christopher Black, a veteran Canadian lawyer who has been involved in a number of high-profile cases, including defending former Yugoslav President Slobodan Milosevic, strongly condemned actions from the U.S. and the U.S.-led North Atlantic Treaty Organization (NATO), which have repeatedly accused other countries of destroying postwar international orders, portraying themselves defenders of international order. The lawyer believes that U.S. sanctions on other countries are illegal and are a ploy to defend its economic wars against other countries.

China's challenge to the rules-based order

Top priority: The moral principle that we all should live peacefully on one planet should over-ride sovereign nations fighting over power and ego from turf to space, when humanity could be burned by climate warming or nuclear war. — AFP

EVERYDAY, we are told we must defend the rules-based order. But whose order? What rules? Why should we defend an order if we did not have a say in shaping?

All this is in the realm of politics and geo-politics. The biggest thinker who shaped the current neoliberal order was Austrian philosopher Friedrich Hayek (1899-1992), whose ideas of classical liberalism of freedom, democracy and self-order of markets dominated global relations.

Neoliberalism was put into practice in the 1980s, when US President Ronald Reagan and British Prime Minister Margaret Thatcher pushed through the free market philosophy that swept away Keynesian state intervention of the 1950-1970s.

The deeper thinker on the whole question of constitutional law, politics and international order was German jurist Carl Schmitt (1888-1985), whose influence on conservative political circles in almost all the Big Powers has been growing.

I only became aware of Schmitt’s work when Noema magazine wrote an editorial on Schmitt’s Nomos of the Earth (1950).

Schmitt is controversial, because he essentially wrote the legal basis for Nazism in the 1920s, which accounts for his ostracisation (in today’s language “cancelled”) from academic circles for decades.

Main priority: A demonstration calling on the German government not to intervene in the ongoing conflict in the Ukraine, in Berlin. The moral principle that we all should live peacefully on one planet should over-ride sovereign nations fighting over power and ego from turf to space, when humanity could be burned by climate warming or nuclear war. — AFP

Schmitt was a brutally realist thinker who explored the legal foundations of European political theory. Schmitt argues that no order can function without a sovereign authority. A state is legally constituted when the politics distinguishes between friend and enemy and when the citizens are willing to fight and die for its identity. The state alone is given the power of violence (and enforcement) by the citizens to enforce the law.

Schmitt is considered an authoritarian supporter, because he saw sovereign power resting ultimately in the Executive (rather than the Legislature or Judiciary) because the sovereign (i.e. the President) decides on the exceptional situation, where he/she must suspend the law because of war or assume emergency powers in order to restore order.

Decisions by the Executive are either bound by law or bounded by his or her moral bearings.

The world is today watching on TV whether former President Trump is morally culpable for causing the Jan 6, 2021 riots, or legally culpable.

The Ukraine war is being supported by the North Atlantic Treaty Organisation or Nato on a matter of moral principle for a non-member, but if the war escalates to nuclear global destruction that kills all, how do we trade off the individual rights with the collective right of everyone else to survive?

Schmitt dissected the European constitutional laws and international order, dividing them into three phases: pre-1500, 1648 to 1919 (World War I) and thereafter.

Before the discovery of America, European powers fought each other under a religious cloak, since the Pope decided on disputes of rights on moral grounds.

Indeed, it was the Papal Bulls of 1455 and 1493 that authorised the Portuguese and Spaniards to conquer all lands and seize and enslave Saracens and non-Christians in the Americas, Africa and Asia.

The religious rationales comprised the Domination Code whereby Christians can rule over non-Christians and possess their property, as well as the Discovery Code, whereby land owned by non-believers are treated as terra nullius (empty land), meaning non-Christian indigenous peoples do not have rights.

But when the Dutch and English started fighting with the Portuguese and Spaniards over overseas territories, what was the legal justification?

Dutch jurist Grotius (1583-1645) provided the secular rationalisation that discovery alone is not enough, but since there was freedom in the seas, occupation by a sovereign state confirms rights seized through war.

Schmitt argued that Jus Publicum Europaeum (European Public Law) emerged after the 1648 Treaty of Westphalia to allow sovereign countries to have the right to go to war based on their own judgement of justice and necessity without interference in each other’s domestic affairs.

This changed after the end of the First World War, when the 1919 Treaty of Versailles treated the losing side as criminals, with their rights cancelled or confiscated.

While the Europeans were busily fighting each other, the United States rose in global power and imposed its 1823 Monroe Doctrine that asserted that it has its own sphere of influence, with the right to intervene in Central and South American states.

That sphere of influence would spatially cover cultural, economic, military, political and today technology exclusivity beyond legal sovereign borders.

Schmitt was prescient in seeing that where war is fought on the basis of “good versus evil”, in which all rights of the other side are “cancelled” (like the foreign exchange assets of Afghanistan and Russia are frozen or seized), the situation may be an unstable equilibrium.

The unstable European security architecture was settled decisively by the United States in two World Wars because of her overwhelming military, economic and industrial power.

But in today’s multipolar situation, who decides on the rules of the international order? If both sides accuse the other side as evil and illegitimate, who decides other than the use of arms?

To cut a complex story short, the Nato military alliance, comprising nearly one billion people and 47.3% of the world’s gross domestic product or GDP (2020) assumes its status quo role as the final arbiter of the “rules-based order”.

The problem is that BRICS countries (Brazil, Russia, India, China and South Africa), plus Indonesia have 3.5 billion population with one quarter of world GDP in market terms (25.6%).

However, on GDP PPP terms, they are near parity with Nato and therefore may have their own views on the international order. What if the larger non-Western countries want their own version of the Monroe Doctrine?

The moral principle that we all should live peacefully on one planet should over-ride sovereign nations fighting over power and ego from turf to space, when humanity could be burned by climate warming or nuclear war.

For Nomos (or order) of the Planet, rather than the Earth, we should all rationally cooperate. If we truly believe in democracy, can the eight billion people in the world vote on the rules-based order, or do we still leave it to G-7?

No order is stable without true legitimacy on democratic principles. How to achieve that order remains a truly open question.

Andrew Sheng writes on global issues from an Asian perspective. The views expressed here are the writer’s own.

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Saturday, August 14, 2021

Moral vacuum at the heart of modernity, now embodied in US laws!

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MAN and nature are running out of time. That’s the core message of the UN Inter-governmental Panel on Climate Change (IPCC) report released this week.

` UN secretary-general António Guterres called the report a “code red for humanity”. “The evidence is irrefutable: greenhouse gas emissions from fossil fuel burning and deforestation are choking our planet and putting billions of people at immediate risk.”

` What can we, individually and collectively, do about it?

` Many animals and human beings cannot survive at high temperatures. Seattle, a temperate climate city, hit 104 degrees Fahrenheit in June, only four degrees below the maximum 108 degrees where humans can’t survive.

` Like the pandemic, the twin effects of climate warming and biodiversity loss are hurting the bottom half of society who are most vulnerable to natural and/or man-made disasters.

` Indeed, indigenous and native people who live closest to nature, comprising 5%-6% of world population scattered in remote areas, are likely to face loss of culture, lives and habitat because all their water, food and livelihoods will be devastated by climate change.

` In essence, we are in an existential situation whereby nature is being destroyed by human excess consumption, which creates pollution and carbon emission, but all this is made possible by monetary creation by bankers and businesses who seem to care more about their profits than the human condition.

` Thus, decisions over climate change, human activities, financialisation and globalisation are essentially moral questions over the power to lead us out of the wilderness of nuclear destruction through war or planetary burning.

` In his monumental “History of Western Philosophy” (1946), British philosopher Bertrand Russell argued that those in power understand that they have twin powers over nature and political power to rule other human beings.

` Traditionally, the limits to such power have been God and truth. But today, religions are also in turmoil on what is their role in finding pathways out of the current mess. Furthermore, FakeNews obscures what is truth.

` The current mess is not unlike the Lost People wandering in the desert waiting for Moses to find the 21st century version of the 10 Commandments. Unfortunately, the 17 UN Sustainable Development Goals (SDGs) are aspirations and not commandments.

` As economists say, climate change is a market failure, but there is no modern day Moses nor operating manuals to translate SDGs to environmental, social and governance (ESG) projects and programmes for businesses, governments and social institutions.

` In this twin injustices against man and nature, people sense that there is both a moral vacuum in globalised modernity, as well as lack of a shared, practical pathway out of planetary destruction. If secular science or politics cannot help us, is religion the solution?

` Ironically, religion has played a far larger role in the current quandary than meets the eye.

` Two papal bulls empowered the Portuguese and Spanish conquests of new land in the second half of the 15th century. Papal bulls are public decrees, letters patent or charters issued by a Catholic pope.

` The Papal Bull Romanus Pontifex issued by Pope Nicholas V in 1455 gave Portuguese King Alfonso the right to “invade, search out, capture, vanquish and subdue all Saracens and pagans whatsoever, and other enemies of Christ whatsoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery... to convert them to his profit... [such assets becoming] justly and lawfully acquired.”

` The Papal Bull Inter Caetera, issued after Christopher Columbus returned from America in 1493, not only reinforced the Spanish right to property and slavery seized or colonised from non-Christian kingdoms or pagan natives, but also established the Doctrine of Discovery.

` This doctrine formed the basis of national and later international laws that gave licence to explorers to claim vacant land (terra nullius) on discovery. Vacant land meant land not populated by Christians, and thus the Christian discoverers and occupiers could have legal title to them, regardless of the rights of the indigenous people.

` In short, historically it was the Church that gave the moral blessing for colonisation, slavery and genocide during the Age of Globalisation. The tragedy is that the Doctrine of Discovery is now embodied in US laws.

` In the historic case of Johnson vs McIntosh (1823), Supreme Court Justice John Marshall ruled: “According to every theory of property, the Indians had no individual rights to land; nor had they any collectively, or in their national capacity; for the lands occupied by each tribe were not used by them in such a manner as to prevent their being appropriated by a people of cultivators. All the proprietary rights of civilised nations on this continent are founded on this principle. The right delivered from discovery and conquest, can rest on no other basis; and all existing titles depend on the fundamental title of the crown by discovery.”

` If humanity still treats nature as a free asset to be mastered, and other human beings to be dominated and disenfranchised because of the Doctrine of Discovery, how can we move forward morally to create human inclusivity and planetary justice?

` Under secular science, the elites that control the media, military, economy, political or social institutions have forgotten that they are not masters of man and nature, but stewards to protect human well being and nature for future generations.

` In this polarised age, we forget that the shamans of the indigenous people carry ancient wisdoms about how to live with nature and each other through traditional values, medicine and shared rituals. The shamans are not seers but healers and carriers of tribal memories and values.

` When modern scientists and technocrats have no solutions to present problems except more speed, scale and scope in the rush to modernity, isn’t it time to listen to traditional wisdoms from those who have living but dying memories of how to live with nature and each other?

` Without moral bearings, no wonder we have no maps out of the current mess.

Andrew Sheng | South China Morning Post By Tan Sri Andrew Sheng (born 1946) is Hong Kong-based Malaysian Chinese banker, academic and commentator. He started his career as an accountant and is now a distinguished fellow of Fung Global Institute, a global think tank based in Hong Kong.^[1] He served as chairman of the Hong Kong Securities and Futures Commission (SFC) before his replacement by Martin Wheatley in

Andrew Sheng comments on global affairs from an Asian perspective. The views expressed here are his own.

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