Giacinto Andriani

in Peuples / Popoli / Peoples / Pueblos, n.ro 10 (June 1987)

Some of the events that have characterised international politics in recent years, such as the case of South Africa or that of the Palestinians, have led to the acquisition in political and journalistic language of the term ‘people’ or the concept of ‘self-determination of peoples’, also used in support of foreign policy choices by our own as well as other countries. The episodic nature of these references, however, does not do justice to the content of these terms and above all to the profound implications that a policy in favour of self-determination entails with respect to the current conception of politics, law, economics and relations between states.
In France, a major university publishing house has published a volume, in a widely circulated series, on the subject of the law of peoples (1). Periodicals of considerable international prestige (2) have devoted dossiers to the same theme. In the history of the UNO, over a period of decades, the recourse to the self-determination of peoples as the basis of its choices and indications addressed to the international community has become increasingly clear and insistent, and the positions of numerous other international bodies have been adapted to them. The examples could continue to demonstrate that the right of peoples, also as a consequence of the emergence of new political subjects that have determined the history of decolonisation and more generally the struggle for emancipation from domination and dependence, is increasingly acquired and recognised. The risk of this situation is that, as has happened with human rights, the proclamation of the right of peoples becomes a ritual fact that empties its scope and potential, transforms it into an instrument so widespread in language or academia that it loses its critical charge and becomes harmless from an operational point of view.

The Athens Conference
Ten years after the Universal Declaration of the Rights of Peoples made in Algiers in 1976, an international conference was held in Athens, organised by the Basso Foundation and the League for the Rights and Liberation of Peoples, to take stock of and open a reflection on the prospects for the rights of peoples, precisely in the direction of giving a content and meaning that is not merely ritual to the affirmation of that principle, as it developed in the hypothesis of the work initiated by Lelio Basso. On the one hand, the Algiers Declaration was the culmination of the work of the Russell Tribunal who, starting from the assumption that there was a deficiency in the law to protect not only the individual but also the collective interests of the cases they dealt with, carried out work to denounce to public opinion the causes that led to such violations. The shortcomings of the law were particularly emphasised with regard to the fact that alongside state entities, it was increasingly necessary to recognise peoples as subjects of international law.
This hypothesis became the power point of a research and political commitment alongside the liberation struggles, which had as its first outcome the Universal Declaration of the Rights of Peoples. The value of this declaration lies in the fact that it attempted to give expression to the best energies developed in Third World liberation processes and specified a series of rights that are important for mankind and such as to be an indication for the realisation of various international relations.
What is meant by peoples and peoples’ rights? What is the difference with the nation and the state and what is the relationship between them?
The Chilean philosopher José Echeverría (3) puts it this way: ‘The nation as well as the people are human communities characterised by participation in the same past and the will to build a future. In the case of the nation, the emphasis is on the common origin, in the case of the people, it is on the will for a future. Legitimation for the nation is retrospective, for the people it is prospective…. The nation tends to reproduce itself, to repeat its past in the present. Conversely, the people tends towards change. It tends to invent a destiny that it freely chooses and later affirms in its decisions. Thus it is the people, and not the nation, that is given the right to freely determine itself, since the nation is supposed to be already ‘determined’. In the face of the nation’s right to sovereignty, the people claim the right to sovereignty. Even more praiseworthy from a political and legal point of view is the affirmation of François Rigaux (4), president of the Court of Peoples: “It is sufficient to conceive of the people as the collective place in which each human being is born and has been socialised through the learning of a language, initiation into a culture, the adoption of beliefs and prohibitions, insertion into a certain economic structure, and the sharing of territory. The people is not confused with the state and the identification of people and state must be rejected with the same vigour with which the identification of state and law is condemned. On the territory of each state live peoples – or, if you prefer, social groups – whose collective traits distinguish them from one another. Recognising the fundamental rights of these collectivities is the essential object of the law of peoples and, in this sense, completes and perfects the traditional doctrine of human rights’. Finally, equally significant is what Salvatore Senese (5) states: ‘One could define the law of peoples as a political project expressed in legal forms borrowed from international law and having a vocation for effectiveness and universality. An attempt to refound international law on the new universality of what might be called the “hard core” of human rights, freeing them from any ideological hypothecation and hegemonic enterprise. A prescriptive system, therefore, that foregrounds the notion of the people as the place where freedom is constructed in the context of a specific reality, and that imposes the pursuit of human liberation from variety, from differences, to find in the particularities of each collectivity the terms and conditions of its liberation This project implies a reversal of the conceptualisation (and the distribution of powers-competences) dominant in positive international law (but also at a certain level in positive domestic law) that places the state as the almost exclusive, and in any case privileged, subject of the international legal order and as an entity transcending the people. According to the law of peoples, on the other hand, states, being abstractions, cannot legitimise themselves to the extent that they are the instruments of the organisation of human collectivities, hence of peoples, who must therefore be recognised as the true subjects of law. That is to say, the only source of legitimacy that international law, like domestic law, must recognise for states is popular sovereignty. The law of the peoples thus brings the international legal order and the domestic legal order back to the same legitimacy; but at the same time it relativises states, it establishes a people/state dialectic with all the consequences that this entails in terms of the distribution of power and the reorganisation of political relations”.

The evolution of peoples’ law
The law of peoples must naturally evolve as historical situations change. From this point of view, it is necessary to verify ten years after the Algiers Declaration whether and how it can be a valid instrument of intervention in support of liberation processes; whether and how it has been enriched with meanings as the international reality has changed. In order to do this, let us briefly recall the main contents of this document.
The first section of the Algiers Charter concerns the right to existence. Existence refers not only to the biological survival of the individuals that make up a people, but also “qualifies the cultural data of collective relations. To the existence of a people necessarily belong the means of social reproduction by which successive generations transmit an ancestral heritage, with the inevitable share of retouches, modifications, alterations’ (6). The right to existence, after having been a conquest for peoples subjected to colonial rule, does not necessarily end with the formation of a state.
In a second step, the problem arises of ‘how within state borders to guarantee peoples the effective enjoyment of their rights’. Independence and sovereignty do not in themselves guarantee the existence of a people. As an example, we need only think of the phenomenon of international labour migration that forces millions of people to move away from their own territory leading to the alteration of their socio-cultural status and to live precariously on another territory. To the migrations caused by economic reasons under the pressure to satisfy the basic needs of existence, we must add those who are forced to leave their country for political reasons or because of collective discrimination, the so-called ‘refugees’. Finally, the right to existence today cannot yet be considered acquired as long as problems such as hunger and malnutrition, the threat of extermination by means of nuclear weapons, and the choice of one’s own path to modernity challenge the existence of a people as a collective entity. The aspect of modernity referring to a superior model offered by the West to other peoples also emphasises the cultural aspects to the right to existence.
The second section of the Algiers Charter is devoted to political self-determination, to be distinguished in its external and internal aspects. The problem posed is that despite the liberation from foreign colonial domination, the effective exercise of the right to political self-determination will remain threatened by foreign or external interference. On this front, the weakness of current international law must be emphasised. The UN’s simple ban on the use of threats and force in relations between states is not enough. “In order for peoples to effectively exercise their right to political self-determination after having constituted themselves into independent states, it is essential to clarify the content of international norms on aggression and to strengthen international institutions, especially in their legal branches. Economic forms of aggression and intervention also deserve special attention. One of the objectives of peoples’ law is to offer a model to overcome the paralysis of inter-state institutions by simulating what the proper functioning of these institutions should be’.
Closely related to the previous one are the economic rights of peoples, which constitute the third section of the Algiers Charter. Control of natural resources, participation in technical and scientific progress, fair remuneration for labour and the establishment of international trade on equal and fair terms, constitute the qualifying points of the right of each people to choose its own economic and social system. In addition to international economic powers, today the formation of structural relations of indebtedness constitutes one of the main obstacles to the assertion of these rights.
The exploitation of the material, human and natural resources of dominated peoples has been accompanied by the plundering and spoliation of their cultural heritage. The affirmation of the right to culture, in the fourth section of the Algiers Declaration, clashes with phenomena characteristic of contemporary society. “The power of the mass media and the concentration of power that animates them constitute a current danger, more pernicious in that it is less visible than the looting of works of art…. Over the last few years, numerous works in Europe and the United States have denounced the danger to which information technology exposes private life. Not only does information technology unbalance, in favour of state power, the balance of power between the state and its citizens, but state power itself is threatened by the private economic powers that conceive and implement the information technology tool. The danger is particularly significant in countries, of which there are many, that import technology they do not possess. Similarly, the concentration of mass media and the unification of cultural models, opinions, fashions, and consumer needs that tend to be established subvert traditional cultures’. The effective exercise of the right to political self-determination is inseparable from the emergence of a culture of one’s own that reconciles tradition and progress.
The fifth section discusses the right to the environment and common resources. Tragedies such as those in Bhopal highlight the responsibilities of private economic powers and the risks of collusion between states at the expense of the peoples affected by such accidents. On this ground, as on that of disarmament, it is necessary “to encourage new solidarity between certain movements active above all in industrialised countries and the will for emancipation of the peoples of the Third World” because it cannot be accepted that the dominant countries export their wars and their pollution.
The last problem addressed by the Algiers Charter concerns the rights of minorities, endeavouring to ‘keep in balance two objectives that risk being contradictory: on the one hand, the need to preserve the territorial integrity and a form of political unity of the State and, on the other, respect for the fundamental rights of peoples who constitute a minority within a State’. The problem of minorities, or rather the presence of different peoples living in the same state, runs through almost all contemporary states. With respect to it, the law of peoples in the current state of international relations, rather than encouraging a policy of secession, ‘proposes rather a different conception of the role of the state. Traditional forms of unitary nation-states have too often been the expression of a class or social group brought to power that have confiscated state institutions to their advantage. To recognise the rights of the people against the state is also to accept, when it occurs, the plurality of peoples within the state, which allows infra-state collectivities to exercise democratic control over state power’.

Today, growing concerns
The beginning of the Algiers Charter said: ‘we live in times of great hopes, but also of deep concerns’. In these ten years, perhaps the worries have increased more than the hopes. Of the various aspects that have influenced the evolution of international politics, a few should be mentioned. US policy has taken a decisive turn towards asserting its imperialist policy. Having overcome the ‘Vietnam complex’, the United States, as Raniero La Valle said at the recent conference in Athens, ‘abandoning all qualms and simulations, became aware that it was an empire, and explicitly decided to be and behave as such. The Republic formally becomes an Empire, and an Empire potentially of world dimensions’. This choice, made even before Reagan became president, was supported by a series of facts: the resumption of the growth of military budgets, the design and construction of new nuclear and conventional weapons, the Cruise and MX missiles, the establishment of the Rapid Deployment Force for overseas interventions, the installation of nuclear missiles in Europe, the proclamation of the Vital Interests Doctrine, to be understood in fact as a declaration of war on the Third World, the resumption of chemical weapons production, and the breaking of the constraints of the SALT II and ABM agreements.
A second aspect concerns the restoration of war as the foundation and culmination of international relations. Again according to La Valle: “Beyond the domination of technological structures, what is growing is the claim to a properly political domination, which in order to realise itself has now unscrupulously recovered the availability and use of the old instrument of war, which now seemed seriously compromised and less and less practicable in the nuclear age. Some even theorised in the 1960s that the advent of nuclear war had taken war out of the region, and it had in fact become common sense to say that war was now impossible. Instead, the full recovery of war as an instrument of international domination took place precisely through the exploitation of the taboo of nuclear war, used in an inverted way, no longer as an impediment and deterrence to war, but as disinhibition and persuasion to war. This worked through the distinction between war threatened and war fought. The war that is always threatened and never fought is the war between the United States and the Soviet Union. This ever-future war is absolutely essential to the current political system, it can never be abandoned as a real possibility, it can never be made seriously improbable by prolonged periods of détente or promising disarmament negotiations, because it is the queen of all wars and is the legitimisation and exercise condition of all other wars. Such wars cannot be renounced; however, they need to be covered. Therefore, they are fought with conventional armies, which operate, however, with the protection and guarantee of nuclear armament behind them, which has the function of dissuading other nuclear powers from intervening, i.e. it has the function of keeping outsiders away from their wars, and thus guaranteeing impunity for the aggressor’.

A still primitive world society
These elements lie at the root of an international situation characterised by the absence of rules in behaviour between states and a vacuum of authority in the function of international bodies, first and foremost the UNO, created to guarantee peace in the world through the construction of just and equal international relations. From this point of view, not only has it not been possible to build the edifice of the law of the peoples in recent years, but classical international law has gone deeply into crisis. It would be extremely interesting to understand why the international order that was attempted to be built after the Second World War has failed. La Valle attempts to provide a partial general answer by stating: ‘What was born out of the ashes and destruction of the Second World War was in the light of a world society; or rather, the war left, contradictory, divided and bloodstained, the materials, peoples and states, which for the first time should have organised and composed themselves into a true and single world society. Never realised until then, such a world society can be said to have been a nascent society, a primitive society. It therefore found itself living through a historical phase similar to that through which all primitive societies passed, a phase in which not law but violence dominated. Characteristic of primitive societies would be that of generalised violence that is gradually subjugated and controlled either through the scapegoat mechanism (all violence is concentrated against the one who is assumed to be responsible for everything) or through the mechanisms of ritual and sacrificial reworking of violence, or, in the more advanced stages, through the mechanisms of regulated violence, law, and the ‘just war’. Only a mature society can be founded and sustained without necessarily resorting to violence. International society, being still in its infancy, and thus objectively a primitive society, is still a society that believes itself to be necessarily founded on violence. Hence weapons, even without and before there is an enemy; and hence the various forms of ritualising and controlling violence. And if, on the wave of hopes nurtured in the immediate post-war period, the nascent international society attempted to harness violence through law and through the reduction of just war to the sole hypothesis of self-defence, the failure of this attempt soon caused it to regress to the mechanism of the scapegoat responsible for everything (which, depending on one’s point of view, is the Soviet Union or the United States, or gradually the Palestinians, Libya, Nicaragua, etc.); and to the mechanism of the scapegoat responsible for everything (which, depending on one’s point of view, is the Soviet Union or the United States, or gradually the Palestinians, Libya, Nicaragua, etc.).); and in addition to the scapegoat mechanism, other mechanisms have been used to manage violence, from its ritual representation in the Cold War, to its actual sacrificial exercise against the poorest and most defenceless victims, to its promotion as the supreme regulator of international relations through the consecration of the law of the strongest and thus the rule of subjugation and domination. In essence, it can be said that when it came time to set hand to the construction of world society, men, and above all the constituted powers, found themselves unprepared to manage international relations outside the rules and tried and tested habits of imperialism and war’.
In the face of this process that effectively unifies the world system, the strength – and meaning – of the Algiers Declaration lies in the fact that it offers a complete and current synthesis of collective and individual rights that deserve respectful protection.
Rather than offering precise solutions to problems, it contains the essential principles in the light of which appropriate remedies must be worked out, both through the choices of individual states and at the level of international bodies. The law of peoples, rather than a legal system intended to replace current inter-state law, is meaningful insofar as it offers the human community models of mutual relations based on the recognition of peoples as political subjects. The Algiers Charter also demonstrates how, on the basis of the unification of the world system, the problems of the so-called North and the so-called South are closely linked, and that in order to be addressed and resolved they require a very close connection, an alliance not only ideal, but operational and political, between liberation struggles and struggles for peace, for the environment, for work, for democracy. Peoples’ Right seeks to carry out a synthesis between these two fronts of struggle in the perspective of a truly internationalist commitment that overcomes the limits of an approach that is either only Western or only Third Worldist.

1) Jouve Edmond, Le droit des peuples, Paris 1986, P.U.F.
2 Droits de l’homme, droits des peuples, ” Le Monde Diplomatique “, February 1984.
3 Cassese A. and Jouve E. (eds.) Pour un droit des peuples, Paris 1978, Berger-Levrault.
4 François Rigaux, Les nouvelles frontières du droit des peuples, paper delivered at the Athens Conference, November 7-11-1986.
5 Senese Salvatore, La protection du droit des peuples: le cas du Tribunal permanent des peuples, ‘Cahiers’ of the Basso Foundation, no. 6, 1986.
6 Rigaux François, report cited. The following parts in inverted commas, if not specified, are extracted from the same report.