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 1997. They 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.