Reconciliating sovereignty of nations, human individual and collective
political and social rights
in a democratic perspective
1. The political and social global order which ruled during most of the second half of the past century was based on fundamental principles, concepts and practices which might be summarized as follows :
(i) The principle of sovereignty of states (“nations”) adopted by the United Nations in 1945.
The ruling of that principle, in the frame of the League of Nations established after World War I, did not concern all “nations”, since colonisation was still considered “normal”. It did not also forbid formally the recourse to war.
The charter of the United Nations moved the principle further, precisely because it had been denied by the fascist powers’. That principle was therefore logically accompanied by the prohibition of recourse to war. States are authorized to defend themselves against those who violate their sovereignty through aggression, but they are condemned in advance if they turn out to be the aggressors. All conflicts between States must be solved by political means of negotiation, eventually under the umbrella of the United Nations and only the United Nations Council of Security is entitled, if need be, to organise a military intervention. Simultaneously in the decades which followed the principle was generalized to all nations of the world, and colonisation as such denied for any state.
Yet the concept of sovereignty remained understood in an absolute version which did not allow any country to “interfer in the internal affairs of others”, Nations being represented exclusively by their sole governmental authorities, provided they operated within the appearances of a “safe” rule.
(ii) That concept of the global order was logically supportive of a concept according which human rights constitute an exclusive internal matter. The United Nations declaration which formulated such rights had no jurisdictional value, and no jurisdiction to enforce them was conceived beyond national authority. Only the Europeans, later, did move beyond and created embryos of European courts, but that was made easier by the common rooted European democratic practices.
Basic social rights (to life/food, shelter, education, health, social security, work) as well as labour rights were left out to the exclusive national legislations. Economic and social rights to development were later introduced, on request of Third World countries (the “77” and the Non Aligned) also through a general (and vague) United Nations declaration, responding more to the dominant national populist concept of development of the 60s and 70s than to any serious democratic project of global multilateral adjustment.
Similarly the conflicts between States remained exclusive, not allowing “peoples” (individuals and organisations) to call upon rights denied to them. Such was (and still is) the Statute of the Court of the Hague. The concept of an International Court of Justice in charge on some types of crimes (war crimes, crimes against human kind, genocide) was introduced only recently and is still rejected by the major power and some others.
(iii) Finally this whole juridical system of concepts and practices reveals that the demand for democracy was not considered by itself and for itself in the dominant ideologies of the time.
Democratic progress was perhaps conceived as a desirable goal, but its concretisation subjected to prior economic development. That was not only the dominant vision in African and Asian countries, legitimising the one party system (not only in socialist countries, but as well in others such as Côte d’Ivoire, Kenya, Malawi, Zaire etc.). It was admitted also in the Latin American ideology of “desarrollismo”. It was also recognized as legitimate at the international level and by “general public opinion” as well as government actual policies (as can be shown by the practices of donor agencies of the time, ignoring the eventual democratic conditionality).
2. The page of this global consistent system is now turned, possibly (and hopefully) for ever, thanks to the progress of universal ethics which rejects absolutism of sovereignty, attempts to integrate democracy and development in a single package, and to some extent wishes to associate political democracy and social justice. This progress constitutes the positive side of “globalization”, that is a more universal concept of human beings and humankind.
Yet this progress has not led, in the circumstances, to a consistent alternative system articulating national, eventually regional, and global concepts, rights and adequate supportive institutional innovations.
The imbalances which characterize the present state of power systems has led, until now, more to confusion than to building positive credible and legitimate alternatives, probably for the lack at least of political will from major powers (and others !) and also perhaps of a common ethical (and cultural) reference.
The results of such a “difficult transition” (hopefully towards a better concept of universalism) have already created dangerous practices and a real menace for the future of democracy, peace, social progress, development of peoples.
The sovereignty of states is more and more “negated” in the name of a “right of interference”, at least for humanitarian reasons, but also in some cases in the name of defence of political collective rights, at the cost of ignoring that sovereignty must be defined a place in the global system. The declining role of the United Nations, the substitution de facto of the G7 and Nato as centers for major decisions, practices associated with the unipolar system of global power, are operating in that dangerous direction, which may lead to the militarization of globalisation.
The concept of democracy in the dominant discourse, unfortunately associated with the doctrinaire vision of neo-liberal unilateral “rule of the market”, deepens the contrast between political rights (pluripartism, fair elections etc.) and social rights. Instead of recognizing the complexities and difficulties (which have to be overcome, even if gradually) in articulating the various dimensions of democracy, this simple “answer” generates confusion and doubt full practices. A vague discourse on “good governance” cannot replace a solid conceptualisation of the complexities of the question. The practices of “double standard” (the rights of this people are strongly supported, including through military interventions, those of that people ignored) menace the whole system to loose legitimacy in the eyes of a growing number of individuals, movements and organisations and even whole peoples.
Simultaneously the linear equation associating market rule and democracy amplifies the potential negation of social individual and collective rights.
It is in this frame that the dominant system is orienting towards an international business law considered as the supreme reference overhanging all national laws both in the area of commercial law and in the fields of labour law, company law, civil law and of course international public and private law. WTO has defined in this context, an arsenal of principles and procedures all the way to and including a juridical system (ORD, a Body for Settlement of Disputes) based on the negation of the elementary principles of separation of powers that characterise democracy. This scheme establishes the multinational group (the “business minority”) as the supreme master of the economic, social and political life of the whole world, thereby making this group both supreme legislator, executive body (above States) and even its own “judge”!
As a counterpoint to this inordinate ambition of the dominant forces in place, we intend to mount here a debate which will seek to formulate the features of a new supreme law that will guarantee for all the peoples of this world a dignified treatment as a condition for their active and inventive participation in the construction of the future. The target is a comprehensive and multidimensional law providing for the rights of human beings (men and women of course, as absolutely equal beings), the rights of communities and peoples and finally, the law governing relations between States.
3. The consequences of a general tolerance with respect to the dominant ongoing practices which characterize the painful transition through which societies of our time are moving are indeed dramatic.
At national levels it creates not the required conditions for the progress of democracy but contributes to its loss of credibility and legitimacy. Associating the absolute rule of the market (and accordingly the supremacy of an international business law) with democratic principles has not proven to be possible (reference to the dramatic case of Argentina constitutes perhaps only the extreme example of such a failure). Such involutions may lead to strengthening of antidemocratic attitudes which, in spite of their being an illusion with respect to their capacity to respond to the real challenges created by globalisation, are nevertheless growing almost everywhere in the North and the South : neo-populism (in some case quasi neo fascism) here, withdrawal within “community” real and false unilateral identities there (in the name of “nationalisms” turning into chauvinisms, religious specificities turning to political manipulations) are already invading the political scenes in more and more countries.
At the global level the strengthening of the monopolistic positions of the North that the WTO and the international business law reassert through their reinforcing of the intellectual and industrial property rights and licences and the opening of the capital accounts create further difficulty for the so called “emerging countries” (East Asia and Latin America) with respect to their hope of “catching up” through competing on open markets and further marginalize and exclude other regions (in Africa), therefore deepening polarisation of wealth and power at a global level. This is a pattern of globalisation which generates in fact nothing but “apartheid on a global scale”.
The alternative, which is the object of this research, implies not only a declaration of the simultaneous double principle of social justice and international justice as constituting the axis of a legitimate and efficient positive alternative, but a more precise set of proposals for positive rights and adequate institutional mechanisms, in order to translate the principles into realities.
That exercise will be conducted in the project, both at (selective) national levels and at the international, global levels, with and within associated partners (movements, NGOs, centers of reflection).
4. “Social justice” (to be constructed primarily in the frame of the Nation – states) constitutes the basic dimension of a consistent programme guaranteeing peoples’ rights.
(i) Economic and social ethics provides the theoretical basis for any consistent vision of legitimate legislation and practice. That is already by itself an important subject matter in academics, aiming at identifying principles on the basis of which the different schools of thought operate, recognizing here at least major schools such as utilitarianism, libertarianism (which influences major neo-liberal practices), egalitarian liberalism (à la Rawls), socialisms, theologies of liberation. Unfortunately the major trends in current conventional economic training as well as politology remain little interested by those reflections on fundamentals, in spite of their being in fact ruled by them implicitly. Similarly more interaction is needed between centers of reflection on economic and social ethics and activists in social movements and civil society. This research project aims also at facilitating the bridging of that gap. The target is finally to contribute articulating principles and concrete choices for juridical and institutional building.
(ii) The painful current transition and the imbalances of forces which simultaneously have generated its dominant biases and further reproduce them, leading into a blind alley, have therefore produced a crisis of democracy and beyond a crisis of politics.
At the very root of these crises is the dominant ideological quasi libertarian belief that “markets” represent the utmost expression of “freedom” (of “individuals”, their social dotation being ignored) and that therefore all aspects of human and social life could and should be submitted to the unilateral logics that markets command. As a result the various patterns of social contracts and security are dismantled for the sake of flexibility and eventually replaced by private contracts targeting specific groups and exclusive to them. That evolution is felt in many segments of the civil society as being unjust.
Beyond, the dominant current patterns command not the “withdrawal of state intervention” but on the opposite an ultra concentration of power, far from Parliament and citizens control, into a multiplicity of “autonomous” bodies (some of them being private in spite of the public character of their intervention), allegedly “technical “ (i.e. “non political”). Similarly a spirit of “juridisation” of social relations prevail, delegating growing de facto power to “judges”. Patterns of decentralisation, which were originally conceived to reinforce the proximity of power systems to the citizens turn to be centers of additional irresponsible interests. Politics in crisis is becoming a patchwork of “interests”.
That evolution gives strength to the prejudice common view that “there is no alternative”, and the de facto choices of the non transparent, non accountable system of power become a self producing prophety, forgetting that the very definition of democracy is precisely the possibility to choose between different alternatives.
(iii) The gender issues, in their capacity of being a major dimension of the present question society faces (societal visions”) ought to be located in that overall frame. To which extent women’s movements and struggles call for changes in legislations, practices, logics of the economic system, political institutional systems ? What are the obstacles to those changes : resistance of “culture”, mechanisms commanding the economic system ?
(iv) Similarly major ecological issues and proposals ought to be questioned in the light of the critique of the current confused transition phase.
(v) Cultural diversity is a fact and this diversity will remain with us in spite of the progress of globalisation.
The basic democratic principle implies real respect for diversity (national, ethnic, religious, cultural, ideological) and can tolerate no breach. The only way to manage diversity is by practicing genuine democracy. Failing that, it inevitably becomes an instrument that various opportunistic political forces can use for their own ends. Culturalism has been successful to the degree that democratic management of diversity has failed. What is meant by culturalism is the affirmation that the differences in question are “primordial”, that they should be given “priority” (over class differences, for example), and sometimes even that they are “transhistorical”, that is, based on historical invariables. (This last is often the case with religious culturalisms, which easily slide toward obscurantism and fanaticism).
But beyond such diversities “inherited from the past”, which ought to be recognized and respected but are not always vectors for positive responses to the problems met there is a need to consider another type of diversity, operating within the perspective of “changing society” in response to the challenges. These areas of diversity stem precisely from the variety of those fundamentals through which are identified the “schools of social and economic ethics” referred above. Authentic democracy and pluralism is based on the recognition of the variety of alternatives that they command.
(vi) Finally the nucleus of the questions raised here is to be found in the answer given to the following basic question : how socialisation should be operating ? exclusively through “market” constraints and pseudo laws ? or by a combination of market and democracy ? In that case the area commanded by “markets” should be clearly identified and its boundaries clearly drawn. That is the meaning of “social regulation of the market”. Simultaneously democracy must be conceived in all its political, social and cultural dimensions, and institutions reformed or invented to support its deployment, allowing therefore true debates and choices on what is meant by social regulation of the economic system.
Democracy is a concept related to modernity defined as the claim that human beings, individually and collectively (in society) are responsible for the drawing of their future, and therefore that “there are always alternatives”.
5. “International justice” (or “global justice”) constitutes the other dimension of a consistent programme guaranteeing the progress of peoples’ rights.
a. Indeed the starting point here is the recognition that the respect of simultaneously the sovereignty of nations and human rights might be conflicting. But that contradiction cannot be solved by suppressing one of its two ends : ignoring the sovereignty of nations or ignoring the universality of human rights.
The principle of respect for the sovereignty of nations must be the cornerstone of international law. Certainly, the Charter of the United Nations had given an absolute interpretation of the principle of sovereignty. But the concept of sovereignty of States can be interpreted as that of the sovereignty of the peoples concerned without limiting their representation to the sole governmental authorities. The fact that democratic opinion no longer accepts that this principle authorise governments to do whatever they like with human beings placed under their jurisdiction constitutes a real progress of universal conscience. How can these two potentially contrasting principles be reconciled? Certainly not by stifling one of their terms – either the sovereignty of States or human rights.
UNO must be the place where international law is established, for there are no other bodies that could be more acceptable. If this implies initiating reforms within the organisation and finding ways and means (including institutional innovation) enabling real social forces to be represented there alongside governments (that represent them rather imperfectly at best), if this implies that the set objective be to incorporate the rules of international law (respect for sovereignty) in a coherent set – rules governing the rights of individuals and peoples and those concerning economic and social rights forgotten in the liberal vulgate - which necessarily imply regulation of markets, then these elements are enough to pad out a busy schedule.
b. Rebuilding a polycentric pluralistic pattern of globalisation offering a chance to progress to the peoples of the weak areas not actually equipped to take eventual advantage of competition on a global scale is for sure a complex programme which involves adequate regional and global institutional rebuilding, neither the frame inherited from the past (the post world war II period) nor the ad hoc current responses being necessarily responding adequately to the new challenges.
In that respect there is a need for a medium-term programme that would be it takes and effective. Effective in the sense that into consideration the potentially positive aspects of the major transformations now going on.
That project of a humanistic response to the challenge of current globalization is not “utopian”. It is, on the contrary, the only realistic project possible, in the sense that the first moves in that direction – already object of growing demand from the civil society – would quickly win the support of powerful social forces in every region of the world, forces that would be able to impose its logic.
That multipolar world aimed at is first of all a regionalized world. Interdependence, negotiated and organized in a way that makes it possible for peoples and dominated classes to improve the conditions of their participation in production and their access to better conditions of life, is the frame within which this polycentric world could be built. This question constitutes therefore a challenge for all, for the peoples of European Union and those of Eastern Europe as well as for the peoples of Asia, Africa and Latin America. Regionalisation schemes – Nafta and Mercosur, the ACP-EU Cotonou agreements, the Euromed project, Ecowas, Comesa and other African regional institutions, Apec – have to be re examined in the light of the requirements of international justice and a non-polarizing pattern of globalisation. To which extent the current patterns of regionalisation are transmition belts of the ongoing scheme of liberal globalisation, and under which conditions they could be building blocs for an alternative globalisation ?
In that frame also the response to the questions relating to the rebuilding of the world order implies a series of negotiations that could organize a controlled interdependence, and concern at least the following major questions :
(1) The renegotiation of “market shares” and of the rules of access to them. This project, of course, challenges the present rules of the WTO which, behind all the talk of “fair competition”, is currently exclusively concerned with defending the privileges of the oligopolies that are active on a world scale.
(2) The renegotiation of the systems of capital markets, with a view to putting an end to the devastations of financial speculation and orienting investment toward productive activities in the North and South. This project challenges the functions of the World Bank as understood to this day.
(3) The renegotiation of monetary systems, with a view to putting into place regional arrangements and systems that would ensure the relative stability of exchange rates, supplemented by the organization of their interdependence. This project challenges the present system constituted by the IMF and the principle of free and fluctuating rates of exchange.
(4) The beginnings of a worldwide system of taxation – for example, by the taxing of income derived from the exploitation of natural resources, and the redistribution of these funds for designated purposes around the world according to appropriate criteria.
(5) The demilitarisation of the planet.
(6) The democratisation of the United Nations.
(7) A correct treatment of the issue of security and therefore also of eventual “terrorism”.
The regions conceived with a view to these transformations cannot be merely economic groupings with preferential inclusion. They would also be constructed as political spaces that would promote the collective strengthening of the social positions of the disadvantaged classes and sub-regions.
Such a programme for the reconciliation of globalization with local and regional autonomies would include making a serious review of the concept of “aid” and addressing the problem of democratising the United Nations system. That system could then get down to effective work on disarmament (which would be made possible by the formulas for national and regional security, and constitute an efficient response to the challenges of “terrorism”) and prepare the way for the establishment of a globalized tax system. It could also supplement the United Nations with the beginnings of a “world Parliament” capable of reconciling the demands of universalism (rights of the individual, of collectivities, and of peoples ; political and social rights ; etc. ) with the diversity of historical and cultural heritage