Gustave Massiah
in Hommage à Léo Matarasso, Séminaire sur le droit des peuples, Cahier réalisé par CEDETIM-LIDLP-CEDIDELP, Février 1999
Let me, although I am not a lawyer, think a little ahead.
How can this project of world law make it possible to raise a certain number of political questions and build the social movement that will support it, since a social movement is also formed in relation to a project and is not necessarily pre-existent to the project?
There are things that are changing. First, and I take up the idea mentioned by Philippe Texier, the problem of rights is first and foremost the problem of the violation of rights. The person responsible is the one who violates a right. Therefore, if a company violates a right, it is a priori condemnable, in the same way as a guerrilla movement which, after all, could also be judged.
During the days of tribute to Henri Curiel, Ilan Halévy made a speech on terrorism. He said that the problem was not the existence of terrorism, but that there were things that we used to find normal and that we no longer find normal today. We must therefore look at things in terms of the evolution of the political debate.
He had drawn a number of conclusions about what terrorism was or was not, and about the involvement, in particular, of the civilian population. There is an evolution of consciousness, and we must take that into account.
So I think that a company that violates a right should be condemned. So who can condemn it? Where can it be condemned? There are several possibilities.
Some years ago, during the session of the Permanent Peoples’ Tribunal on the IMF and the World Bank in 1988 in Berlin, we proposed that a commission be created at the International Court of The Hague that could judge the legitimacy of the debt, linked to unrealized projects or to the corruption of certain leaders.
Indeed, there are investments and there are debts linked to these investments. In national law, there are debts that are illegitimate and the bankers are partly responsible for these debts. We can therefore reflect on the share of responsibility of international actors in the debt of certain States. This is a current issue. Are there any bodies capable of judging this and who can refer them to them?
This is the debate raised, for example, by the draft Multilateral Agreement on Investment (MAI), which was defeated by citizen mobilizations. In the MAI agreement, it was said that companies should be able to attack states. Many state advocates have asked why states cannot also sue corporations. In fact, they can. Our question was why citizens’ associations (e.g. consumer associations) could not also take legal action against investments. After all, when we remember the Shell-Bhopal-Total “affairs”, we see that certain responsibilities are obvious; and why, therefore, could civil society, which is the victim of certain companies, not bring a case before such and such a court?
The second issue is that of respect for social, economic and cultural rights, which go beyond economic actors.
This is the most important question. For example, if a State must ensure the right to housing and work, how is this possible? There are several possible ways of thinking about this.
One of them is to define a core of rights that states should respect. The social movements in France on the law on exclusion had made the proposal to guarantee incomes above the poverty line. The poverty line is defined in a relative way, it is half the median income of the country. We therefore asked that in Europe (since the social movements were expressing themselves in the framework of the European debate), no one should be able to live below the poverty line, and therefore that a minimum income be created that is directly linked to the possibilities of each country, since it is defined in relation to the possibilities of each country.
There is a set of rights whose application depends on the economic level of each country, but therefore the principle is universal. We can go even further. There may be countries that cannot guarantee certain rights, that cannot guarantee a minimum right to health, education or a survival income; so there is a problem of global redistribution. We cannot consider the problems of economic, social and cultural rights without addressing the problem of the global distribution of wealth. In this regard, the 1998 UNDP report is very interesting. It indicates that the 225 largest individual fortunes represent the income of 47% of the world’s population. Moreover, it adds that a 4% levy on these fortunes would make it possible to pay for all the basic services for all humanity.
From the law, then, we can ask fundamental political questions, such as that of redistribution. And it is perhaps in this way that we will also be able to build the social forces that will carry this world law. Because we cannot relaunch the battle of international law without having a minimum of points of view, texts, and proposals that are a global political and economic project, since the issue is at the level of global law.
(See also the text in the following section by Gustave Massiah entitled: “Regulation of market economies can be based on respect for economic, social and cultural rights“.)
in:
<strong>Hommage à Léo Matarasso, Séminaire sur le droit des peuples
Cahier réalisé par CEDETIM-LIDLP-CEDIDELP, Février 1999
L’Harmattan, Paris, 2004</strong>