Excerpt from the book " Michel Rocard par... " Editions Flammarion, 2018
By Mireille Delmas-Marty,
Member of Collegium International, Professer Emeritus at the Collège de France.
Dear Michel, I am writing to you as a follow-up to the last trip we made to Geneva just under two years ago, just before your great departure for Eternity. We were attempting, once again, to convince the United Nations General Secretariat of the need to draw the consequences of the "Declaration of Interdependence" and the "Charter for a Global Solidarity and Responsible Governance" launched in 2005 and 2012 by the Collegium International that you had created with Stéphane Hessel and Milan Kučan. I would like to tell you that these texts drafted by us - the various members of the Collegium (political leaders, diplomats, academics) convened under your presidency by the steadfast Sacha Goldman -, have become regrettably topical.
You should know that in the last two years the situation has changed incredibly. In France, the political parties you knew are reduced to ghosts. An entirely new team is "on the march" around a young president named Emmanuel Macron who claims to be the master of time but is more like a master of the winds who is reinventing politics, both national and international, by trying to reconcile opposing winds: the couple "security and freedom" recalls the law defended by Alain Peyrefitte in 1981, but other couples, such as "competition and cooperation", "innovation and conservation", "exclusion and integration", are just as difficult to reconcile. Especially since the world around us has changed dramatically, including in the United States, where President Obama has been replaced by a certain Mr. Trump, a colourful and unpredictable character who wants to isolate his country in order to restore its lost "greatness". He has undertaken to build a wall between the United States and Mexico and is challenging multilateral free trade treaties and has withdrawn from the Paris Climate Agreement (below « The Agreement »).
Curiously, this withdrawal has not halted anything. Ratified by many countries, including China, the Agreement entered into force less than a year after its adoption. As of March 2018, it had already been ratified by 174 states. For everything is now happening as if the American withdrawal had produced a remarkable awakening, to the point of giving birth to these famous citizens of the world that we despaired would ever exist anywhere but in our dreams. When we consider two areas to which you were particularly sensitive, climate change and human migration, the comparison of these "miseries of the world" gives hope that it might still be possible to transform warlike globalisation into a peaceful globality.
Climate Change
You knew that COP 21 (21st Conference of the Parties to the International Convention on Climate Change) was neither a failure, nor a success. It was first and foremost an admission of awareness. The international community recognised that its fate - like that of all living beings on this planet - depended largely on human behaviour, since the disruption of the climate system is largely of human origin.
It was also a change of approach. It was not enough to invent new concepts like those developed in the last century: the "common heritage of mankind", which appeared in the 1960s in relation to the oceans and your beloved Antarctica, but also the moon and other celestial bodies; or "global public goods", or "global commons", borrowed from economists in the 1980s (report by the United Nations Development Programme, 1987) to designate goods that are both non-exclusive (can be used by all) and non-rivalrous (their use does not compromise the use by others). Yet these terminological innovations, which the Collegium had often referred to, did not succeed in changing the balance of power. International law has remained the quasi-monopoly of states, which defend their national interests and withdraw from treaties when their interest diverges from the global interest. You may remember Canada denouncing the Kyoto Protocol after being sanctioned for violating its commitments.
Instead of new concepts, the Paris Agreement sets up dynamic processes to try to preserve the future (and present) of the planet. It should not be read as an isolated entity, separate from the movement in which it is embedded, but as part of the overall movement without which it would not exist. It is not its own end in itself, but part of a process that must be regularly updated.
The Agreement explicitly sets out three objectives (Art. 2 §1): (a) to contain the warming of the global average temperature "well below 2° centigrade compared to pre-industrial levels" and to continue efforts to limit the rise in temperature to 1.5°; (b) to enhance the capacity to adapt to the adverse effects of climate change and to promote resilience; and (c) to make financial flows compatible with low greenhouse gas (GHG) emission development. Despite the reluctance of industrialised countries, the agreement recognises that adaptation "is a global issue for all" and that "it is a key element of, and contributes to, the long-term global response to climate change to protect people, livelihoods and ecosystems" (Art. 7§2). Admittedly, this mechanism is only a starting point, and a very modest one at that, but the method is exemplary.
Insofar as these objectives are recognised as being shared, they have a universal vocation, but this universality remains difficult to implement because it undermines, as you were perfectly aware, dogmas as powerful in international law as the territoriality and sovereignty of States, and calls into question the independence that underpins them. Admittedly, human rights can be used to restore cohesion, but the positive law of human rights must be significantly modified - as the IACHR is doing with regard to indigenous populations - to incorporate the principle of solidarity, whereas human rights, or at least civil and political rights, were developed with a view of achieving the emancipation of individuals from the group(s) to which they belong. The emergence of a principle of solidarity could progressively broaden the perspective of human rights to include one's duties towards humanity, present and future.
This is why we included it in our Declaration, as if to demonstrate that legal humanism has evolved from independence to interdependence. From the philosophy of the Enlightenment to the Universal Declaration of 1948, human rights were part of an "anthropocentric" humanism that separated human beings from other living beings and posited their independence from nature, or even their domination over nature regarded as the "environment" of human beings. They organise relations (civil, political, economic, social and cultural) between human beings alone and will place respect for the equal dignity of each human being at the centre of the UDHR.
A new humanism is now emerging that could be described as interdependence, and various projects, such as the Earth Charter, the International Covenant on the Environment, or the Declaration of the Rights and Duties of Mankind, bear witness to the awareness of the transformation underway. Indeed, from the moment scientific work began to focus on the Earth's ecosystem as a whole - which does not belong to man but in which he is one of the components - the growing interdependence with its other components became apparent.
This observation of interdependence, particularly visible through climate change, would call for the extension of brotherhood to beings whose lives depend on Mother Earth. By a strange twist of fate, this vision, which we call 'Franciscan' (thinking of Francis of Assisi, his prayer to 'our brothers the birds' and his call to 'our sister the moon'), refers first of all to the tradition of indigenous peoples, which is also expressed in certain South American constitutions, such as those of Ecuador and Bolivia, around respect for 'Mother Earth'. Even if this development is not explicitly mentioned in the text itself, it is possible to think that the Agreement is inspired by a spirit of cooperation which, substituted for that of competition, would herald not so much the disappearance of all sovereignty, but rather the transformation of a solitary sovereignty into a sovereignty of solidarity. You liked this formula so much that you asked me to present it to the Collegium.
To ensure the preservation of Mother Earth, solidarity must be deployed not only in space (transnational solidarity) but also in time (transtemporal). As such, it must be combined with the past ("ecological debt") and the future ("future generations"), without forgetting the present. In other words, it is a process of historicisation and anticipation (retrospective justice and prospective justice), while also assuming a permanent updating, a "contextualisation" one might say, since it takes into account national circumstances in their present variety.
This is why each objective is situated "in the context of sustainable development and the fight against poverty". With regard to the global cap on GHG emissions (Art. 4), developed countries "continue to take the lead in assuming absolute emission reduction targets" while developing countries "should continue to enhance their mitigation efforts" and are "encouraged to move progressively towards economy-wide emission reduction or limitation targets taking into account different national contexts". In addition, "least developed countries and small island developing states" are subject to special measures.
This process of "contextualisation" seems justified in equity because it takes into account the "ecological debt" of industrialised countries in the past and only requires present generations to forgo their development and economic well-being within certain limits that vary according to the socio-economic context of each country. Nevertheless, it overturns traditional legal precedents by organising "common but differentiated responsibilities" for states.
But the most surprising thing - you had hoped for it but were not sure - is the commitment at sub-national level: Some federal states, such as California, have joined the coalition of large cities "Under 2°" currently led by Anna Hidalgo and the C40 network (Cities Climate Leadership Group), while the former mayor of New York Michael Blumberg, who has become the UN Secretary General's Special Envoy for Cities and Climate Change, has taken the lead in a coalition of non-state and sub-state actors determined to do "every thing America would have done if it had stayed committed".
Of course, responsibilities will still have to be consolidated, especially as far as businesses are concerned. But investors have already responded by threatening to stop supporting the activities of certain major oil companies. In other words, we are witnessing the shift, which you foresaw, from international law as a monopoly of States to a new model of global governance which should logically be extended to other global challenges such as human migration when they are based on the same observation of interdependence: just as no State can fight climate change alone, no State can manage massive movements of refugees and migrants alone. But the world is rarely logical.
Human Migration
As you pointed out in your last book (Suicide of the West, Suicide of Humanity?), global governance is not logical at all times, nor in all areas.
The humanitarian disasters that accompany human migration have taken on unprecedented proportions, increasing by about one billion every fifteen years since 1950, and this dizzying acceleration is accompanied by galloping urbanisation. According to the most recent estimates, the urban population is expected to double by 2050 to 6.5 billion. And 95% of this growth will be in developing countries (Le Monde 8 Feb 2018). You already knew that human mobility had increased faster than the population, whether it was voluntary or forced. But now we learn that the number of minors, increasingly young, who arrive in foreign countries without an accompanying person, is increasing to the point that many end up on the street, particularly in France, despite the 85% increase in placements in reception structures since 2017 (Le Monde 9 March 2018).
This is why we need to re-visit, in order to rectify, the infamous formula that was wrongly attributed to you, as you taught me when we returned from Geneva, even though it has become a sort of mantra that is repeated tirelessly. We must return to it to affirm, with you, that if it is true that France cannot take in all the world's misery, it can and must take in all its share. To borrow from Patrick Chamoiseau's superb turn of phrase, it is time to affirm that "the vocation of a nation is to welcome all the misery for which its experience, its founding scale, its historical decency make it accountable" (Frères Migrants, 2017).
Above all, it is time to reaffirm - as Kant had already written in 1795 - that hospitality is not a matter of morality or philanthropy and should become a legal principle because it is both obvious and urgent. Kant had deduced the obvious from the spherical shape of the earth, because it "obliges human beings to put up with each other because dispersion to infinity is impossible and originally one has no more right than the other to a country". At the time Kant wrote his Project for Perpetual Peace, the world's population was about one billion (now it is over seven billion). More recently, Pierre Teilhard de Chardin, another great visionary, had also evoked the spherical shape and closed surface of the Earth: "the human mass, after a period of expansion which covers all historical times, is now entering [...] a phase of compression which we can try to regulate, but which nothing allows us to foresee that it should henceforth be reversed forever"; adding that the "squeezing of the human mass" is leading to a "simultaneous rise of the social, the machine and thought, whose threefold tide is lifting us up.
Today, this triple tide could overwhelm us, especially since the Europe that you have known, weakened since the Treaty of Nice (in 2000) by the opening up to the East, is also in the process of unravelling in the West: After the failure of the referendums on the Constitutional Treaty in France and the Netherlands, then the English Brexit, the weakening of Germany and the populist vote in Italy, it will be difficult to rely on Europe when neither the Union nor the Member States have ratified the 1990 Convention on the rights of migrant workers and their families. Europe, which is rather good at dealing with climate change, prefers to reinforce the warlike strategies of the Frontex Agency and to invoke the "return directive" to authorise increasingly long detentions (six months and 18 in certain conditions). You may remember that the Bonnet law was strongly criticised in 1980 when it allowed seven-day detentions, which were reduced to six in 1981. Imagine that today the bill currently being debated in France increases the period of detention from 45 to 90 days!
As a response to the migration "crisis", we hear above all that the rise of populist movements, in Europe as in the United States, and very recently in Italy, should reinforce the security strategy, which also dominates the French bill currently being debated in Parliament. How can we fail to see in this repressive overkill a terrible historical contradiction, the consequences of which our descendants are likely to suffer for a long time? As the Council of State noted in its opinion of 15 February 2018, the urgent thing is not to continue piling up laws (16 major laws since 1980 and an average of one law every two years since the code was created in 2005), but to assess their effects. Some of the measures resulting from the last law of 2016 have not yet been implemented for a year! The urgent task is also to simplify a legal framework that has become incomprehensible (9 different categories and a few sub-categories of expulsion measures, 4 types of residence permit and 17 different terms on the permits issued, etc). Before talking about effectiveness, the opinion states that "precise and measurable objectives" must be set, the cost and practicability of which must be known, in order to focus on the redesign of public policy tools.
The urgent need - as you said in Geneva - is to put in place robust global governance. How can we believe that we are going to "control" immigration by extending the duration of administrative detention and of detention for the purpose of verifying the right of movement and residence? On the other hand, the explanatory memorandum of the bill makes no mention of global regulation efforts. Yet, in the wake of the UN Secretary General's report (Making Migrations Work for All), a Global Compact for "safe, orderly and regular" migration is being negotiated for adoption at an intergovernmental conference scheduled for December 2018 in Morocco.
This silence is all the more regrettable as this Pact is partly inspired by this new "climate governance" whose beginnings you approved. You would no doubt like France - which took up the challenge of the Paris conference in 2015 despite the terrorist acts committed shortly beforehand - to play a role in these negotiations, the starting point of which is precisely the acknowledgement of our interdependence. The Declaration stresses that the "political, economic, social, developmental or humanitarian" consequences affect not only the people concerned and the countries of origin, but also the neighbouring and transit countries, as well as the host countries and communities. As with climate change, the duty of solidarity arising from our interdependencies calls for agreement on objectives, strategy and responsibilities.
Twenty-two objectives are listed in the future Pact, marking, as did the opinion of the Council of State, the need to collect data to inform choices and better take into account the effects while also acting on the causes. In terms of strategy, the pact recognises the importance of states and inter-state dialogue, but it insists, in the Implementation chapter, on partnerships with migrants and diasporas and, more broadly, with civil society in all its diversity: NGOs, trade unions that are already globalised, but also citizens mobilised at local level, who spontaneously show solidarity despite the risks of criminal prosecution, but above all local authorities and networks of large cities. We should also add demographers and anthropologists, who, like climatologists, are called upon to act as alarm senders and watchdogs. And beyond the civic 'will' and the crossroads between scientific 'knowledge' and real-life experience, transnational companies, holders of global economic 'powers', are beginning to commit themselves, as they did with the climate, to taking up a challenge that directly concerns them.
Facilitated by the International Organisation for Migration, the synergy between all these actors will perhaps end up pushing states to act. It would then remain to incorporate the principle of "common but differentiated responsibilities". For migration, the New York Declaration (UN General Assembly, Sept. 2016) sets out the principle of international cooperation between all the countries concerned and of "shared responsibility". Other differentiation criteria could be specified, quantitative such as population, GDP, average number of applications, unemployment rate, or qualitative such as the regular and/or massive scale of migration.
But this new model of governance based on the goodwill of the actors will have to be recognised in terms of legitimacy in order to be effective. The celebration of the 70th anniversary of the Universal Declaration of Human Rights (Dec. 2018) could provide an opportunity to enshrine hospitality as a legal principle regulating human mobility. Like the principle of sustainable development, which makes it possible to balance competition and cooperation, or innovation and conservation, it would make it possible to balance exclusion and integration, or security and freedom, and to balance the respective rights and duties of the human inhabitants of the Common House.
I like to think that you would approve of such a principle because it would contribute, like the principle of a "solidary" and no longer "solitary" sovereignty, to the project that was close to your heart at the Collegium International to draw up a programme for a peaceful globality.
Towards a Peaceful Globality Mondiality (« La Mondalité ») is a new term that Edouard Glissant opposes to dehumanising globalisation to designate "this unprecedented adventure that we are all given to experience, in a space-time that for the first time, truly and dramatically, is conceived as both unique and multiple, and inextricable" (La Cohée du Lamentin).
An interactive and evolving process, mondiality is not a static concept, but rather a state of mind, a new myth or a new narrative, to help set in motion a threefold dynamic that I have spelled out in a "Manifesto for an Appeased Mondiality" (Médiapart website, 24 Dec. 2017). A way of developing the ideas of the Collegium around three "categorical adjectives" derived from the observation of interdependence: all being interconnected, we are at the same time all different, all in solidarity, all responsible.
We are all different because globality is not uniformity. On the contrary, it recognises differences and feeds on them, refusing to be standardised on a single hegemonic model that has always been feared. Kant already feared a universal republic, which he believed would lead to the most appalling despotism. A century later Tocqueville imagined that despotism in a democracy would infantilize humans to the point of turning them into herds of docile animals. But neither of them had envisaged the digital revolution, which puts at the service of its 'soft' despotism, in which everyone participates spontaneously, means of mass surveillance, fed by the big data that we contribute, more or less consciously, to feeding, while these mass data are processed by algorithms that elude us as artificial intelligence progresses and becomes autonomous. Could this be the advent of another unifying form, the Pax technologica?
Globality, which is both unique and multiple, implies a certain pluralism, but it is not satisfied with juxtaposing differences and calls for a common ordering. In this sense, mondiality is close to "ordered pluralism", which brings differences together without eliminating them, harmonises diversity without destroying it, and pluralises the universal without replacing it with the relative: in order for there to be a commonality, differences must remain, but they must become compatible. Two provisions are essential on this point in international law: Article 1 of the UDHR, which establishes the equal dignity of human beings as a universal principle, and Article 1 of the UNESCO Declaration on Cultural Diversity, adopted in November 2001 in the tragic climate of the 11 September 2001 attacks (and taken up again in the 2005 Convention), which describes cultural diversity as the "common heritage of humanity". Article 4 of the UNESCO Declaration, which states that "no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope", points in a direction but does not say how to achieve it. It is therefore necessary to determine the threshold of compatibility which, without imposing a total break with tradition, makes it possible to reconcile it with a more flexible universalism.
All in solidarity: the second adjective expresses what should appear to be self-evident as interdependencies become more visible and more diversified between human collectives (tribes, state groups); between present humans and future generations; between humans and non-human living beings; and even between human 'subjects' and 'intelligent' objects. Moving from interdependence to solidarity implies making common objectives explicit. This method is gradually expanding, from the eight Millennium Development Goals, which are mainly focused on the fight against poverty, but still very vague (UN General Secretariat, 2000), to the seventeen Sustainable Development Goals (2015). It is now becoming more specific, both qualitatively and quantitatively, with the Paris climate agreement and perhaps the Global Compact for safe, orderly and regular migration (Zero Draft, 5 Feb. 2018) that UN member states are called upon to negotiate in view of the Intergovernmental Conference scheduled to take place in Morocco on 10-11 December 2018.
All responsible: it must be recognised that only humans (endowed with 'reason' and 'conscience' according to art. 1 UDHR) are responsible. Their relationship with non-human living beings is therefore asymmetrical and without reciprocity, because it is up to them to adapt responsibilities, and thus to transform the solitary sovereignty of States into a sovereignty of solidarity, the implementation of which varies according to the context of each State ("common but differentiated" responsibilities).
But jurists are discovering with perplexity the effectiveness of the voluntary responsibility (Soft Law) of non-state actors when they exercise global power, such as transnational companies. The emergence of "social and environmental responsibility" extends the notion of social interest to certain forms of general interest. You knew about the Global Compact in 2000, an agreement between the UN Secretary General and a group of transnational companies, but you did not know that France would launch a PACT in October 2017 (Action Plan for Business Growth and Transformation). These spontaneous commitments can become binding when citizens and NGOs invoke them in court and when national courts become global judges to sanction transgressions as some have started to do. At the same time, laws such as the French law of 2017 on the duty of care of parent companies and contractors towards their subsidiaries and subcontractors contribute to this hardening.
Globality is perhaps also this overcoming of the democratic separation between the three powers (executive, legislative and judicial), because it cannot be directly transposed to the world scale. Since the most effective counter-powers will undoubtedly come from non-state actors, in particular scientific, civic and private economic actors, it is rather the trilogy of 'knowledge, wills and powers' that should characterise world governance.
On condition that we do not forget, and you are one of the first to have understood this, that this governance also calls, in a paradoxical way, for a reterritorialisation: "Act in your place, think with the World", said Glissant. In order to act in each place, horizontal networks of regions or cities must be associated with States. In the same way, the scientific knowledge of scholars must be combined with the knowledge of those who live the effects of globalisation on a daily basis, such as workers, indigenous peoples and the most deprived populations (these are often the same people), and finally migrants, who are no doubt driven by fear and the spirit of conservation, but also by hope and daring.
Finally, the wishes of ordinary citizens will have to be exercised at all levels, from the village to the city and even in the "Hyperplaces", dear to the geographer Michel Lussault, which function at all scales at once. The plurality of places, like the plurality of temporalities and the diversity of actors, could be one of the characteristics of a peaceful globality, provided that an overall coherence is maintained.
In conclusion, dear Michel, I only wanted to extend the conversation we had on our return from Geneva because it is confirmed, in this spring of 2018, that globality is not a utopia, but a reality that can already be observed with climate governance. But the exercise is endless. I will note provisionally that globality, properly understood, does not oppose diversity to unity, the common to the different, the relative to the universal. At once unique and multiple, it uses law as a common grammar to make differences compatible within an "ordered pluralism". This is perhaps one of the conditions for a peaceful globality that promises neither the Perpetual Peace of Kant, nor the Great Peace of the Chinese Classics, but is more modestly satisfied with a movement towards an ever-reinvented peace. We owe you an immense debt of gratitude for having contributed, through your thought and action, to maintaining such a movement. Translated from the French original.
https://editions.flammarion.com/michel-rocard-par/9782081382961