Mireille Delmas-Marty, Professor Emeritus of the Collège de France
In April 2013, the French review “Regards” published a debate between Monique Chemillier-Gendreau and myself. Addressing in particular the question of sovereignty, it brought to light two quite different worldviews.
Our criticism of the current model of world governance is almost identical. However, where solutions are concerned, Monique is more radical than myself: she considers that the concept of sovereignty must be directly challenged and superseded. I, on the other hand, prefer to wager on the transformation of sovereignty, by proposing that the concept of sovereignty be revised. Traditionally, international law has constructed itself around the dogma of the independence, and therefore the autonomy, of States. This assumes that States are equal, whereas this often appears artificial. In other words, I would tend to qualify this as a “solitary” vision of sovereignty. The State is on its own, and is responsible only for its national interests, while the world’s interests fall outside its responsibility. The problem is that, according to this worldview, no one is responsible for global interests.
For this reason I propose a shift, which I started to outline during my discussion with Monique, from solitary sovereignty to collective, solidary (or solidarity-based) sovereignty. It seems to me preferable to use this new concept, rather than that the better-known concept of “shared” sovereignty, which States find a little unnerving (when a cake is shared, each participant receives a smaller piece). On the contrary, in solidary sovereignty, nothing has been removed, and something has been added. The underlying idea is that States are sovereign in the defence of their national interests, certainly, but also in the defence of the collective interest of humanity. By a sort of extension of their jurisdiction, States must take part in this collective sovereignty.
Nevertheless, it is important to emphasise that sovereignty in its traditional form cannot be replaced overnight: the dogma is only weakened, but resistance remains strong and the transition will be slow.
The weakening of the dogma of State sovereignty
To be more precise, the dogma of sovereignty has been weakened by two trends.
On the one hand, the interdependencies that can be observed in practice, especially in the area of risk: whether it be environmental, health, nuclear, or other risks, the globalisation of risks threatens States’ sovereignty because it reinforces interdependencies (see the Collegium’s Declaration). Even the world’s most powerful State cannot address risk, climate for example, by itself. Whether we like it or not, the interdependencies arising out of the globalisation of risks weaken sovereignty.
On the other hand, this weakening has also been caused by another trend, that of the universalisation of values, which can be seen in the advent of Human Rights and of International Criminal Law, but also in the emergence of Global Public Goods. Thus, the climate, to come back to this example, since it is at the heart of our debate, is a global public good, in the sense given to this word by economists: a good which is non-excludable and non-rivalrous. My using it does not prevent my neighbour from also enjoying its benefits.
In each case, the dogma of State sovereignty is weakened in favour of what could be termed the collective good of humanity, but the dogma is resisting, in particular through its use by the great powers.
Resistance by the great powers
From this point of view, it is interesting to compare, in environmental law, what happened in respect to the ozone layer and what is currently happening in respect to greenhouse gas emissions. In the case of the ozone layer, international law (the Montreal Protocol of 1987) is respected, including by the United States. They respect this because the cost is insignificant and because, in truth, American interests coincide with the global public good, with humanity’s collective interests. By contrast, in the case of greenhouse gases, the cost is much more significant. Consequently, we see a strong resistance by the United States. Yet it is not logical, from a world governance perspective, to apply international law in the area of the ozone layer and not to apply it in the area of greenhouse gases. However it can seem logical, from an internal point of view, to defend national interests and not world interests, at least in the short term, since the new report Risky Business (commissioned by Henry Paulson, Tom Steyer and Michel Blumberg and released end-June 2014, Le Monde 23rd July) outlines the foreseeable effects of climate change on the United States economy.
This first example of the contradictions in the policies of the United States, as seen from the collective good of humanity, is only one part of a whole that is contributing more and more to disorder in world governance. In this respect, it is interesting to note, as an aside, the 2013 judgment of the Supreme Court of the United States in the Kiobel case, in which a multinational company had committed serious human rights violations in the course of oil drilling operations in Nigeria. The multinational company was being sued in the American federal courts on the basis of an ancient law, the Alien Tort Claims Act of 1789, which allows American courts to sanction serious human rights violations, including when they are committed abroad, by foreigners, against foreign victims. This law was passed in 1789 because, at the time, the United States, newly arrived on the international stage, wished to convince the International Community of its solidarity with other States – which was indeed the very idea of solidary sovereignty – in the fight against the “enemies of mankind”, according to the term used at that time.
Who were these “enemies of mankind”? Mainly pirates on the high seas. In passing this law, the United States was displaying its willingness to take part in the global fight against piracy in order to protect mankind. Today, in raising the question as to whether this old legislation is applicable to transnational corporations that contribute to serious human rights violations, the Kiobel case sought to determine who are the pirates of the 21st Century.
Indeed, the Supreme Court eventually refused the victims’ suit against the transnational company, however the justices, in arriving at this solution, adopted two different lines of reasoning. The justices of the majority subscribe to solitary sovereignty, as summarised by the phrase “US Law does not rule the world”. The justices deduce this formula from a presumption, according to which “US Law governs domestically”. Why this strict position? Because, otherwise, one would err towards “an intended clash between our laws and those of other nations, which could result in international discord”! The mind boggles when this decision is compared to the BNP Paribas case, which reveals the scale of the contradiction.
In order to pursue my reasoning, I would like to mention, independently of the justices of the majority, the four justices who expressed an opposing view. Although they too eventually concluded that the victims’ claim was inadmissible, they adopted a different line of reasoning around Justice Breyer (4 against 5), putting forward a novel approach to the concept of American interests: American courts can have jurisdiction, either for territorial reasons (but in this case, the violations had taken place abroad), or for personal jurisdiction reasons (American citizenship of the victim or the offender), or for reasons of “material jurisdiction”, with such material jurisdiction existing, according to Justice Breyer and his three colleagues, if the incriminated behaviour “substantially and adversely affects an important American national interest”. However, this idea of American interest is extended to the point that it includes global interests, through the concept of the “enemy of mankind”. Breyer considers that it is in the United States’ interest to take action against all enemies of mankind. This leads him to the somewhat humorous question: “who are today’s pirates?”
In short, in the Kiobel judgment the majority judges think of the sovereignty of the United States as being solitary, designed to avoid conflicts, whereas the minority judges show a preference for a definition that comes close to solidary sovereignty. As a result, a single Supreme Court case provides an insight into both conceptions of sovereignty that exist today.
Further illustrations can be found in the various approaches to sovereignty that have fed American policy in relation to the International Criminal Court (ICC). The United States has changed its approach since the period running from the end of the 20th Century to the start of the 21st Century, during which it concluded treaties with a number of countries prohibiting them from ratifying the Rome Statute. It is quite extraordinary that a country should allow itself to conclude an agreement preventing another country, under threat of financial sanctions or the refusal of subsidies, from ratifying a convention of the United Nations! This strategy seems however to have been abandoned by the United States, which even refrained from using its veto to prevent an appeal to the International Criminal Court in relation to Libya. In the case of Syria, it also did not resist, with the resistance coming from Russia.
The paradox is that extraterritoriality is avoided for human rights violations, while at the same time, in the area of financial markets, extraterritorial laws persist and have even gained in strength, both in the BNP case and in the repayment of Argentina’s debt.
Thus, the weakening of the dogma is being slowed by a certain resistance, partly connected to the role of the great powers. I have used the example of the United States but one could just as well use other examples. How best to respond, if not by wagering on a metamorphosis of this dogma?
The metamorphosis of the dogma
There are several possible ways through which this metamorphosis from solitary sovereignty to solidary sovereignty could take shape.
The progressive integration of supranational interests is above all achieved by regional international organisations. This can be observed at the European level, in respect to human rights and economic law, as well as in the Americas and Asia, in the areas of trade and the economy, if not in the area of human rights. This path, already well-trodden, allows the expression of supranational interests by regional international organisations. It is obviously not enough, since it does not guarantee the protection of higher global interests. As for regions in the sub-national sense, ambiguity must be avoided. In practice, there is a superposition of levels from sub-national (regions), to national (States), to supranational (world regions) to global. There is no linear communication between the different levels, and all of them must be explored: between the sub-national and national levels, which is to be discussed in October; next, from the national to the supranational regional level, an area in which much progress has already been made.
The question remains as to how to step up to the global level. Practice shows that the integration of supranational norms of a global nature is achieved by fragmenting questions into sectors, and according to the competent international organisations, that are already created, evolving or still in the pipeline.
However imperfect it may be, this fragmentation is undoubtedly necessary at the current stage if progress is to be made on the coordinated integration of norms at the world level. Several examples are set out below.
In the area of international criminal law, a competent jurisdiction already exists, the ICC. The area of trade, without a doubt the most advanced, possesses both a dedicated planetary organisation, the WTO, to establish norms, and a quasi-jurisdiction in the form of the WTO’s appellate body, to control their implementation. The WTO is an interesting example in that most of the major world powers have ratified the Marrakech Agreements. The European Union, the United States, and China have all accepted the mechanisms and measures (that are practically sanctions) that these agreements establish.
By contrast, in relation to the International Labour Organisation, the situation is dramatic. It is the oldest (1919), first international organisation. In the 1919 text, a jurisdiction for labour laws is planned, but it has never been created. To control respect of the ILO’s principles, only a panel of experts without jurisdictional powers exists. Thus, the ILO, which dates back to 1919, has been overtaken by the WTO, created in 1994 and already endowed with an organ for dispute resolution, and an appeal body.
Regarding current works in progress, the creation of a World Finance Organisation (WFO) is being discussed, with the aim of regulating financial markets. The need to regulate financial markets is often reiterated, and the creation of a World Finance Organisation would appear well-founded.
Finally, we in the Collegium have on several occasions called for the creation of a World Environment Organisation (WEO).
To conclude then, in terms of action, both of these two strategies are possible: on the one hand, certain forms of integration exist at the global level, globalisation, but they remain sector-specific and thus fragmented. On the other hand, another form of supranational integration exists that is more extensive in the norms that it creates, but less extensive in its geographical reach: regionalisation, in the sense discussed above. In Europe, normative integration has taken place in relation to human rights, trade and even labour laws; we are the only world region to have created two such strong instances, essentially establishing two European Supreme Courts, the Strasbourg Court and the Luxembourg Court. However true metamorphosis, which would lead us to solidarity-based sovereignty, would require an extension of this bipolar model not only to other regions (cf. In Latin America, the Inter-American Convention on Human Rights and Mercosur), but also to the global level.
We must reflect together about this issue. At a purely theoretical level, it is quite satisfactory to begin at the sub-national level; not everything starts at the national level. In addition, this is undoubtedly a creative process that can be achieved more easily at the sub-national level. However it is true that the term region can be used in two different senses, which is unfortunate. It would be preferable to distinguish between sub-national regions and supranational regions. The sub-national regions may well be the best place to experiment and innovate. In any debate concerning metamorphosis, a third strategy of localisation should also be added, in order to take account of the powers of imagination to which local experiments can give birth. To me, they evoke Edouard Glissant’s adage: “Act at your local level. Think with the World”.
* A presentation by Mireille Delmas-Marty, made during the Collegium International’s working session on 25th June 2014. Copy revised by the author.