François Rigaux

in Peuples/Popoli/Peoples/Pueblos, n. 8 (October 1986)

The sessions of the Tribunal have so far been the most visible face of the institutional set-up founded and inspired by Lelio Basso; but, on the other hand, the claim raised by a handful of intellectuals, writers, artists and political figures to set themselves up as judges of Governments has been exposed to the criticism of those who are disturbed by such an activity, but also to the misunderstanding of many others, and in particular of the representatives of nongovernmental organisations, whose objectives are often close to ours. The best way to confront and disarm these critics is to focus on the crucial issue of the Tribunal’s legitimacy, which also includes a proper evaluation of the normative force of the Declaration itself.
The question of legitimacy is an important one for any legal system and, without prejudging the true nature of the Algiers Declaration and the sentences that applied its provisions, for any conceptual ensemble that has taken the form of a legal normative. However, we must admit that legal science has not yet managed to provide a satisfactory answer to this question of legitimacy, if it even accepts that such a question should be asked. The difficulty is generally resolved by preterition, and the positivist solution is well known on this point: it is the effectiveness of power over a territory by a state apparatus that qualifies the legal order thus identified with the state.
The concept of the rule of law (Rechtstaat) does not add any significant precision as the juridicality of the state is reduced to the purely formal elements of the norms and institutions set up. Legal science did not succeed in challenging the legal nature of the Nazi state.
The situation is not much better in international law. Obsessed by a legal theory identifying law with the state, the science of law has often found it difficult to justify the quality of a non-territorial order, deprived of public force and compulsory jurisdiction. Except on significant but specific issues, such as the condemnation of colonial domination, foreign occupation or the apartheid regime, the international legal order has so far failed to control the legitimacy of state powers.
If we limit ourselves to the Western sources of international law, which have remained predominant until now, we can observe two parallel currents, one that can be described as realistic or positivist (Hobbes, Spinoza), the other as utopian: the project of perpetual peace of the Abbé de Saint-Pierre, relayed by Rousseau and by Kant (Zum ewigen Frieden, 1795) and culminating in the Declaration of the Right of Peoples (ancestor of the Declaration of Algiers, as it was truly a Declaration of the Right of Peoples), which the Abbé Grégoire tried in vain to get the Convention to approve, in 1793 and in 1795.
The Constitution of the League of Nations and then that of the United Nations were the late and insufficient fruits of utopian thought, of which Rousseau and Kant are the most prestigious representatives, and it is to this lineage that Lelio Basso is clearly attached. The word utopia must be rid of the pejorative halo that too often accompanies it: it is a thought that is ahead of its time and that seeks the place (always this obsession with the territory) where it can take root.
Today, utopian thinking is no longer just the vision of the future held by a few men of genius, from Rousseau to Basso, it is expressed in collective movements that include the liberation struggles pursued in particular in the Third World, the fight for democracy waged in Latin America or in the Philippines, the pacifist or ecological movements, the organisations defending human rights, refugees, immigrants, and all the efforts to resist the state and reform the state that can be observed all over the world.
If we then return to the question of the Tribunal’s legitimacy, it finds no support in the persons of those who are members, but in the convergence that can be detected between the words spoken by a few and the action taken by entire peoples.
All those who struggle, suffer and sacrifice themselves to improve the condition of their people are the only true guarantors of the Tribunal’s legitimacy. As for the convergence, it is manifested in an extremely concrete way: the Russell Tribunal II on Latin America, which is at the origin of the permanent institutions later inspired by Lelio Basso, condemned the military regimes and dictatorships of Latin America, most of which have since collapsed.
It is only a few months since the American government and the mass media of the “free world” recognised the horror of the Duvalier and Marcos dictatorships, while the Russell II Tribunal for the former, and the Permanent Peoples’ Tribunal for the latter, condemned them in language that can no longer be described as utopian, when they were recognised and respected heads of state. The true legitimacy of a legal system lies in the future and not, according to the archaic conception of a power received from God, in the past.
It remains to clarify the meaning of the Tribunal’s awards in relation to the Algiers Declaration and the international standards it has applied. It is the application of the norm to particular situations that reveals its meaning through a progressive process of elucidation. The absence of compulsory jurisdiction is the most profound weakness of the international legal order: as much as it is impossible to give an a priori definition of such fundamental concepts as aggression, self-defence and self-determination, it would be (relatively) easy to verify on a case-by-case basis whether or not a particular situation falls within the scope of the norm.
This is also the main function of the Permanent Peoples’ Tribunal: to demonstrate that the open texture of the basic norms of international law, from which the Algiers Declaration does not deviate on any essential point, makes them suitable for dealing with the particular situations that are subject to them.
Rigaux, François
in: Peuples/Popoli/Peoples/Pueblos, n. 8 (October 1986)