Ubuntu and International Law

Ubuntu is an ancient African word and it is difficult to translate it in a language that doesn’t hold the same concept.

It basically means: ‘I am what I am because of who we all are’ or: my humanity is inextrically connected to the group I belong; my happiness is their happiness; their sorrow is my sorrow.

The word became popular thanks to two African Nobel laurates, Nelson Mandela and the archbishop Desmond Tutu, and even more thanks to the Linux desktop bearing this name.

It recalls me a famous Latin quote by the poet Terentius “Homo sum, humani nihil a me alienum puto” (I am a man, nothing human is alien to me), but ubuntu goes much further: not only everything human is not alien to me, it even affects me deeply. It tells us about belonging, interconnectedness, wholeness, even empathy and compassion.

It is not a legal concept, but for sure it is an ethical concept which inspired some legal statements about common concerns of humankind.

It is close to a legal concept which is around (and debated) since long time: the common heritage principle, which establishes that some resources or sites belong to all humanity and have to be available for everyone’s use and benefit. It is established as a guarantee for the future generations and the needs of developing countries.

The principle surfaces in many international legal texts, even if its most known application remains the UNESCO World Heritage Convention (1975) which gives UNESCO the competence to designate the sites being of special cultural or physical significance. These, due to their outstanding cultural or natural importance belong to the common heritage of humanity and have to be preserved for the future generations. While each World Heritage Site remains part of the legal territory of the state wherein the site is located, they have to be protected  in the interest of the international community.

The idea was not new, one of the oldest appearences is in the Antarctic Treaty (1959). It is stated in its preamble that its primary purpose is to ensure “in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”.

A clear affirmation of the Common heritage of the mankind, not just  as a principle but as a rule, is in the U.N. Outer Space Treaty (1967):

Art.1: “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.”

Art.2: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

In the Moon Treaty, which came after (1979) we read that “[t]he Moon and its natural resources are the common heritage of mankind” (art. 11).

Then we had the U.N. Convention on the Law of the Sea (1982), where we read that “the Area and its resources are the common heritage of mankind” (art. 136). This means that the Area and its resources cannot be claimed, appropriated, or owned by any state or person (art. 137). All rights to resources belong to mankind as a whole, with the International Seabed Authority (ISA) acting on mankind’s behalf (Article 140). Here we can see a step forward: an authority in charge to guarantee the interests of mankind.

Finally, we can read in the preamble of the Paris Convention on Climate Change:

“Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.”

To date, the principle is still waiting for application in other important fields:

The UNESCO adopted two declarations inspired to it (which are just declarations, not binding treaties): the  Universal Declaration on the Human Genome and Human Rights and the Declaration on the Responsibilities of the Present Generations Towards Future Generations, both in 1997They are potentially part of international customary law, if international or national judges can verify that they match the general practice of states and what states have accepted as law.

What about other resources which are at the core of our interdependence? Internet? Big data? Or, more trivially, the air we breath?

This application of the oneness principle to the difficult field of international law was first an intuition by Immanuel Kant in his essay Perpetual peace (1795), it is nowadays supported by cosmopolitanist theories and by the doctrine of global public goods. To be properly enforced, nonetheless, it requires a shift in legal paradigms that is really controversial (challenging traditional international law concepts such as acquisition of territory, sovereignty, sovereign equality, and international personality).

And it requires a shift in consciousness towards  Ubuntu.



Transnational Politics: The Idea Whose Time Has Come.

As Victor Hugo said :

rien n’est plus puissant qu’une idée dont le temps est venu

Abolishing slavery or giving voting rights to women were once crazy ideas.

But, one day, somebody started to think that such ideas were – after all – quite reasonable, or even that they felt righ. It took time to build a critical mass of people thinking that way, but it happened: the time was ripe… and such ideas became powerful.

There are ideas or opinions whose time has just come: that individuals are equal no matter their sexual orientation, that little girls have the right to get an education, that women deserve the same salary of men for the same job: in some places this is already obvious (and not from yesterday), but you can see now a global push for that. Time is ripe.

You may also notice that once every nation had its own time for these evolutionary leaps, even if the neighbouring countries and cultures had an influence on it. Europe has always been that way: a sort of civilization soup where ideas moved back and forth across boundaries.

Now, in the global village, ideas are more and more percolating across boundaries. Leaps will happen more and more on a global scale and critical masses will be, more often than not, transnational ones.

Becoming aware of that is a revelation which pushes us to look for our community across boundaries. I’ve found mine in all the individuals living as global citizens and pushing for a transnational dimension of politics, where individuals may play a role.

I want to mention here some friends:  Joseph Robertson from Citizens Climate Lobby -who is at work building an operative Citizens’ Climate Engagement Network, to improve bottom up accountability to the Paris engagements on climate; Philippe Mazuel, founder of the Party of the Citizens of Europe – PACE, who is candidate for the next French presidential elections in order to promote a real European dimension of politics (and if you are French you can support him on LaPrimaire.org);  and Sargon Nissan from the Brettom Woods Project  -who animates the  Bank and IMF’s civil society policy forum pushing for a stronger participation of civil society in order to improve the legitimacy of these global financial institutions.

I could have added more names and more examples, this avant-garde pushing for supranational democracy is not just composed of few isolated individuals, even if they’re not, yet, a critical mass. Ideas need to go their way and infect more and more individuals until, one day, time is ripe.

Then, they become powerful, as Hugo said.

Why Is Supranational Democracy so Difficult to Imagine?

The inadequate attention that international organizations’ statutes  give to legitimacy, accountability and inclusiveness hails from the limited role that IOs played at the beginning of their history and from the subsequent scarce attention to democracy in a setting different from the national state.

In today’s different international context, it is worthwhile to challenge the unsurmountable hurdles stemming from the use of the word “democratic” in connection with an international organization.

Even though there isn’t a generally accepted theory of democracy – or more broadly of supranational democracy – in international organizations, we can examine the possible portability of the individual elements that make up this notion from the state level – for which they were originally created – to the international level. This is the experiment I’m almost obsessed about.

However, two kinds of difficulties arise from the fact that we are not considering a community of individuals, but of nations.

The first obstacle is the difficult applicability of the principle of equality, inherent in the notion of democracy. It is based on the concept of equal dignity for all human beings which leads to ignore and even amend the differences that give some people a “birth right” to succeed. All states are sovereign and therefore equal inside the international community, but this principle is nothing but a fictio. Far from wanting to ignore or minimize the differences, the international community focuses upon the preservation of the status quo, which is attenuated only by the shared goal of the sustainable development and protection of fundamental rights. Even when all the countries will get, as we hope, to share similar levels of prosperity, they would be far from equal. Too many facets help mark the differences: the size of territories, populations and economies, as well as the control over natural resources and the weapon supply.

As a consequence, several organizations agree on the principle that states are differently represented to reflect their different situations. Other ones simply ignore their substantial difference, but special provisions or practices make some States more equals than others.

Important scholar studies try to offer solutions to this dilemma, but there isn’t any adequate diffusion and sedimentation of shared assessments. The reflection on the subject has followed two clearly distinct lines: the statism theory, which sees international democracy as the result of the joint action of the states, as essential building blocks; and the doctrine inspired by cosmopolitanism and transnationality, which is based on the assumption of a global demos.

Even if an international organization achieved the perfect representation of all its members and was thus fully legitimate to act, we couldn’t conclude that it was also, indirectly, fully representative of their citizens. In fact, if some of its member states weren’t democratic, or only partly democratic, they wouldn’t be representative of all their citizens. According to the Democracy Index 2015 of the Economist Intelligence Unit, only 20 countries out of 167 are full democracies.

Such a lack of legitimacy is inevitably reflected on the state’s opinions and stands in the institutions of the IO it is part of and on the overall credibility of the institutions themselves. This is a difficult legal dilemma, that can only be solved if the organizations require their members to be democratic – as the European Union does (even if it should keep a closer eye on their evolutions). It is obvious that in organizations with a universal membership the issue must be labeled as “non permanently solvable”and shelved.

There is so a good point for the cosmopolitan approach: only building on some kind of legitimacy driven directly from the global demos we can overcome the “states obstacles” which are their inequality and their imperfect democratic representation.

Even so, the imperfect representativeness that we assume as inevitable, could be compensated by accountability, which can be fully obtained at the supranational level also by designing and experimenting new legal and institutional forms.

International organizations are not really equipped for substancial legitimacy as they are not for full accountability. New channels and tools need to be imagined to provide that their decisions and lines of actions reflect the values and the will of the people.We need new and fresh ideas, in line with the reality (and the technology) of an interconnected society. 

Unfortunately, we are now accessing the realm of imagination, and here there are two more powerful obstacles.

The first one is the power of the status quo: the resistance of political and economic elites, the power of traditions and cultural heritages and the trite old say “it has always been so”.

The second obstacle lies in the fact that economic and legal minds are not really educated to work with imagination, at least not on a big scale. It’s easy to imagine a new interpretation of a rule or a new financial product, but what about a whole new system? Do we feel really empowered to do that?

We hear almost every day that challenging the status quo, working with imagination, “disrupting” are the new frontiers for entrepreneurs and marketers, but this is also true for those who want to prove themselves on institutional engineering… and maybe change the world, for the better.