Tuesday, November 13, 2012

Towards a New Global Justice Compact





TOWARDS A NEW GLOBAL JUSTICE COMPACT
Alejandro Bendaña
Centro de Estudios Internacionales
Managua, Nicaragua
November 13, 2012



John Maynard Keynes once famously said—“When the facts change, I change my mind”.  “What do you do?”
The facts are changing demanding that we not simply change our mind, but review, reaffirm or change our paradigms altogether.  There is no alternative—an affirmation made from the perspective of global peacebuilding, which at this point in global history, needs to review the shape and future of the forest, lest the trees and branches of particular and often recurring episodes of violence and situations demanding justice, important as they are, must not  distract us from the larger dilemma that faces us all demanding even more work

It may be too late to stop the offloading of the proverbial straw that broke the camel’s back—why not another camel and a new way of living with the camel instead of merely not killing it?  A new or renewed Global Justice Compact with three fundamental components.


FIRST—A NEW ENVIRONMENTAL COMPACT  

The first fact, which by this time should not be ‘new’ to anyone is the dealing with the consequences of the environmental equation.  No longer in the making, but made and imploding before our very eyes.  The implosion is as much environmental as political, that is the political will and capacity to deal with the consequences of present ‘development’ models spelling a crisis for this generation and an even greater one for the next

If further evidence were still to be required, it was provided by Artic experts who in September, 2012 concluded that the collapse of Northern sea ice is now underway and will be final within four years.[1]
That same month, the Climate Vulnerable Forum, a grouping of some 20 countries, reminded us that today five million deaths occur each year from air pollution, hunger and disease as a result of climate change and carbon-intensive economies, and that toll would likely rise to six million a year by 2030 if current patterns of fossil fuel use continue.  As usual, more than 90 percent of the estimated deaths would occur in developing countries.[2]

And also as usual some of the chief culprits are in denial.  Typified perhaps by a columnist for the ultra-capitalist Forbes magazine complaining  that the problem with the  said report is that it only deals with costs and not trade-offs!  In similar form but this time employing religion, new head of a US Congressional subcommittee on the environment explained that global warming cannot be a problem because God promised Noah that there will not be another flood.[3]

If our paradigm has room for such deniers then definitely it is time to move on and change the rules of engagement.  There is little time to wast and admonishment theirs or ours does not seem to be getting us anywhere.  A paradigm shift imperative is imperative—of thought and of power, because the first without the other is gets us nowhere, while power without thought–sort of where we are now-- is positively dangerous.  The technical must meet the political on political grounds, and not the other way around.

Yet for all our insistence on the ‘new’, we must pick up the trail to the future looking back at the wisdom of the many indigenous peoples today who insist that the earth is not something we inherit from our ancestors, but something that we borrow from our children and their children.

A paradigm shift is being shaped that that breaks with both rule of capital and classical Marxism both of which considered consumption and production as progress, to a paradigm that actually places restraint on consumption and production, on all, but in particularly of the rich, for the rich and by the rich.

If that is the thought, then where is the power?    Here we should encourage looking at the work of a spreading movement working to recognize what is variously termed Nature/Mother Earth/Environment, as a legal subject of Rights and Laws. 

The Rights of Mother Earth movements tell us that ALL of life has inherent and inalienable rights; that human development can only be sustainable if the social demands and needs of humanity are balanced against the need to maintain the integrity, health and functioning of natural systems.  In other words what is still tolerated today, must be made legally a crime, also today!

Legal systems define parameters of acceptable behaviors and actions, how we humans relate to each other and to the world around us. In most countries, legal systems treat nature as property to be bought, sold and consumed. Under such laws, human concerns invariably prevail over Nature and the carrying capacity of natural ecosystems instead of being weighed against the needs of ecosystems and other beings in order to strike an appropriate balance.

One of the reasons why contemporary legal and governance systems have failed is because they t have been designed to facilitate and legitimate the unsustainable exploitation of Nature.

An essential step in achieving this natural balance is to fill a governance gap, by creating governance systems that see and treat Nature as a fundamental, rights bearing entity and not as mere property to be exploited at will. Breaking out of the human-centered limitations of our current legal systems by recognizing, respecting and enforcing Rights of Nature is one of the most transformative and highly leveraged actions that humanity can take to create a sustainable future for all.

This is no pipe dream—as there are now functional national legal systems which incorporate the Rights of Nature.  The new constitutions in Ecuador and Bolivia explicitly recognized the status of natural communities.  Ecosystems are no longer from regarded as property under the law but as rights-bearing entities. These constitutional provisions and laws recognize that natural communities and ecosystems—no less than human beings-- possess an inalienable, fundamental right to exist, be protected and flourish.

Residents of communities where Rights of Nature have been adopted possess the legal authority to enforce those rights on behalf of those ecosystems. In addition, these laws require the governmental apparatus to remedy violations of those ecosystem rights.
Rights of Nature laws eliminate the authority of a property owner to interfere with the functioning of ecosystems and natural communities that exist and depend upon that property for their existence and flourishing. They do not stop development; rather they stop development and use of property that interferes with the existence and vitality of those ecosystems.  Rights of Nature lays the foundation for truly sustainable and viable development to occur.[4]

Definitely paradigmatic stuff.  Not only in terms of law, but also of social and political sciences, no longer only  simply to the social compact between the individual person and the State taught in political theory, but a new Socio-Environmental compact that is not a dichotomy but triangular: the individual, the State, and Nature.  Here both societies and the states (including corporations) are called upon, as a matter of law, not of simple persuasion, to legally recognized the rights of Nature.  Where the 20th century binding Universal Declaration on Human Rights is insolubly linked and interdependent with an equal binding 21st Century Universal Declaration on the Rights of Nature/Mother Earth that also makes its way into binding law.

What is our Action Point? Provide support to Bolivia and other countries that are leading this effort in the UN.  Bolivia has been lambasted by the US and Britain in the UN climate talks for demanding steep carbon emission cuts.  The threat of a good example—the threat posed by that country’s legislation establishing 11 new rights for nature. They include: the right to life and to exist; the right to continue vital cycles and processes free from human alteration; the right to pure water and clean air; the right to balance; the right not to be polluted; and the right to not have cellular structure modified or genetically altered.  And in the works : the right of nature “not be affected by mega-infrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities". 




SECOND–REIGNING IN FINANCIAL AND ECONOMIC CORPORATE POWER

Since the French Revolution, western political thought has basically held that States made entities could be governed by men (and more recently by women) in order to reflect the demands and responsibilities of citizens.  An obscure UN document now making the rounds in New York is about to throw out that principle by turning it on its head and put forth a new proposition best enunciated publicly by the US Presidential Republican Party nominee who said “corporations are people and have rights too” or a Supreme Court that stated corporations ‘right to expression’ could not be limited, including presumably the right to fund the defense of corporate interests including political campaigns.


It what amounts to global privatization, including the privatization of the State, the same financial capital conglomerates that brought you the worst economic breakdown in half a century are about to be rewarded not simply by immoral massive dividends but by the release from accountability to any global authority. This rather massive gap in global governance is well on its way to being closed by it becoming the norm instead of gap.  Where, in the name of the free market, corporate interests shape and frame global economic governance. 

Once upon a time it countries of the South and their allies acted through the United Nations to push the development of global regulatory frameworks over international business.  There was even a time when important UN agencies refused to accept donations of computers from its global manufacturers lest its independence be seen as compromised.  But times have changed!  One of the supreme ironies of our time is of bankers in New York or London or Zurich facing the possibility of indictment for actions leading to the 2008 financial collapse takes place at the same time the assembly of governments gathered in the UNGA  may just with the bang of a hammer approve the emasculation of the Universal Declaration of Human Rights excepting capital from that universality.[5]

Is further evidence required to demonstrate how the global capitalist crisis is having a detrimental impact on human beings and therefore their rights?  Is it not obvious that individual States have failed to reign in the corporate conglomerates notwithstanding the outcry of ruined and unemployed citizens?  Of course, it is be too easy simply to blame a UN as if it were not the expression of its 200plus states.  Let’s rather blame governments including our all of our own, and us as national citizens. But as global citizens, we along with so many governments are just as responsible for the failure to enact democratic global governance and reign in the markets.  Far from a regulatory environment we have a permissive environment for wrongful acts and practices of all sorts, without adequate sanctioning or reparation.  Those gaps are not abstract because they translate into miserable conditions of livelihood, disease and death. 

As a number of human rights organizations have pointed out these allegedly ‘private’ actors have very ‘public’ legal obligations.[6] But that argument appears to be losing if we review the final considerations presented to the Human Rights Council and now up for review in the General Assembly. 

Some  years ago the United Nations Human Rights Council asked the UN Secretary-General to appoint a Special Representative to investigate a number of important issues relating to business and human rights. The mandate of the SRSG arose from the failure by the Council a year earlier to adopt a document known as the UN Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights.3

That Ruggie report, named after the Special Representative John Ruggie,  was issued and is now out being applauded by entities such as the International Chamber of Commerce while greatly disappointing civil society groups working on human rights, the environment but also peacebuilding advocates, particularly those who also want to limit put the massive expansion of private international security companies and equally unaccountable privatization of war.

For a thorough and thoughtful assessment of the Ruggie report, one can turn to the study [7] by Professor David Bilchitz of the University of Johannesburg.  Here he advances a strong normative argument for the claim that corporate obligations should not only involve ‘negative’ obligations to avoid harm but also include a ‘duty to fulfill’: obligations to contribute actively to the realisation of fundamental rights.   This is so clear in in the case of pharmaceutical corporations as the TAC campaign so strongly argued on behalf of HIV affected people, but –yes—also mining corporations.  What Professor Bilchitz and others underscore is the huge retreat from what should be a normative obligation not simply to ‘avoid’ negative practices but indeed –particularly in this global financial and environmental and security moment—to actually promote rights.

According to this study, “the flaws in Ruggie’s framework – particularly his reduction of corporate obligations to a ‘responsibility to respect’ – could threaten the realization of fundamental rights (particularly in the developing world) and imperil the development of a more adequate framework for the protection of fundamental rights in the longer term. Accepting Ruggie’s minimalist framework as it stands would mean reducing widely our expectations of business and the very possibility of transforming our world from the current status quo of vast differentials in well-being into one that offers the possibility of realizing.”

This effort has enormous implications because it can form part of a different consensus that will look not simply at individual corporations, but can go on to examine the nature of corporations so that they are not simply regarded as entities focused upon the self-interested maximization of profit but that they are structures where shareholder are morally and perhaps legally compelled to insure that corporate activities benefit the environment, societies and individuals with whom they interact.


Action Point: Influencing the debate on the Ruggie report to take place in the UN. Our strategy would call for demanding that the Human Rights Council rapporteur’s implementation mandate be widened to include an investigation into corporate obligations to protect and fulfill as well and to develop guiding principles for the determination of the exact scope and nature of corporate obligations in this regard.


THREE—BRING BACK THE SUPREMACY OF THE RULE OF (JUST) LAW


We have made an argument for meaningful legally-binding justice system to govern human and corporate behavior.  The problem with legal systems however is that that powerful nations still face the temptation of interpreting international law and norms in such a way that it suits their interests, and setting them aside when they don’t, and maybe the same is true at the national level. Undermining at one level however undermines all the others.  The point is we can’t throw out the baby of rule of law with the bathwater massive rule of law violations.  Further, when the law is wielded only against the powerless, it ceases to be a safeguard against injustice and becomes an instrument of oppression.[8]
Here we can also glance back at the past following the intellectual trail indicated by the great socialist historian E.P. Thompson.  Thompson socialist humanisms was reflected in a lecture at Warwick University where he reiterated that capitalist society offers a thoroughly inhuman form of political community and that this was mirrored rather than overcome in actually existing `socialist' states. Thompson looked to the eighteenth century for images of human community prior to its disintegration into modernity and a distorted rule of law regime.
Thompson visualized the moral community of eighteenth century plebeian movements who fought to uphold traditional rights against modern laws of private property.  In what became a famous assertion, particularly as it came from a socialist perspective, Thompson defended the ideality of the rule of law as an unqualified human good and its necessity as an inhibition on power.  History, he argued, indicated that where the law did not serve humanity,  people struggled to have the unjust law replaced by the just rule of law. Thompson linked the idea of moral community to the upholding of traditional use rights against modern laws of private property.[9]
Today, the struggle for awareness and practice of genuinely moral rule of law could hardly be more relevant.   But some, perhaps correctly, are coming to the conclusion that the world has ceased to care. One columnist termed the question “Is it Legal” as the ‘dumb question of the 21st century.[10] Are we living in a post-legal era and society?  Was the Libyan war legal—did resolution 1973 really authorize war?  Are drone attacks and kill lists legitimate?  Was the killing of Bin Laden legal?  When, if ever, torture, kidnapping and assassination nationally and internationally legal?  Is it true the UNSC ostensibly legalizes such actions?  Are financial elites protected and given a right to carry out legalized corruption filthy enrichment, while millions are unemployed? These are questions not affirmations.  And those who pose them are neither dumb nor naïve nor extremists.  Writing for The New York Times, a former President of the United States said “our government's counterterrorism polices are now clearly violating at least 10 of the declarations 30 articles, including the prohibition against 'cruel , inhuman or degrading treatment or punishment'.”[11]

One would think that, at the very least, a debate is called for. But that is precisely what is missing, and why it is all the more worrisome.  The is it legal, let alone is it right questions, provoke rolled over eyes.  So as a cause or consequence few are asking. Are the answers irrelevant?  If 20th century political behaviour does not correspond with the law, can we pick up the historic struggle to change the behavior instead of changing the law to accommodate malevolent practices?

                                                                    
At a time when popular revolutions and rebellions are sweeping the globe, countries of the South, and Africa in particular, need to act and seen to be acting to strengthen basic rules of law and principles of justice enumerated in the Universal Declaration of Human Rights and international law.

Martin Luther King used to say that ‘Every step toward the goal of justice requires sacrifice, suffering and struggle’.  Legal justice, economic justice, climate justice will indeed require not simply sacrifice, suffering and struggle but also a Strategy to transform the illegality order. 

The  global wealth misdistribution  crisis, that attempts to privatize the resources that belong to all the planet, the global political ambitions and doings designs of powerful countries and the environmental nightmare dawning upon us all requires both new and old legal instrument:  instruments of law to fill in or better yet transform the democratic governance. Herein lies a key global paradox that takes the form of a national and social dilemmas demanding democratic determinations to turn unacceptable global paradoxes into global democratic governance.

This is crucial for the nations of the Global South.  As Mahmood Mandani has argued, the emerging global regime now seeks to ‘ bifurcates the international system between sovereign states whose citizens have political rights, and de facto trusteeship territories whose populations are seen as wards in need of external protection’.  The responsibility to protect seems to have become the right of bankers and NATO to punish. 

Action Point—a discussion on the Rule of Law is not taking place at the United Nations.  It is critical for citizens and governments to push back on the  NATOisation of governance and law including  its own interventionist rule of law interpretation –humanitarian intervention/right to protection--which it wishes codified in law and practice.  This is critical for the UN itself and the ideal it enshrines for peaceful and democratized global governance.   

CONCLUSION: THE EARTH IS TOO BIG TO FAIL

On one side, there are powerful corporate forces and political/military actors; on the other, societies and people who cannot be asked to simply be resilient and get on with survival or wait for the external military savior.  In the middle lays two other sets of forces: national governments and the United Nations.  Our strategy must visualize a democratic convergence of people, principally poor and women, with governments, principally of the poor countries, and the United Nations to meet the 21st century challenge.

If we are to move together globally, then a new national social compact are required between governments and people.  Only higher intensity democracies can close the global democratic governance gaps.  We in the South have our own epistemologies and historical capacity to think on our own two feet and develop our own theoretical and political paradigms, where the needs of the markets, and market-oriented States in the North and South take second place to the needs of communities. 


Universities and research/action centers such as Accord here have a particular responsibility.  During his recent visit to South Africa, Professor De Sousa Santos joined prominent national academics in stating the disciplines in the university must be humanised by bringing in African epistemologies: “Universities need to expand the knowledge systems that they consider to be valid in the curriculum and that are taught to their students.  Up until now the universities relied more on Western modern knowledge, usually scientific knowledge.” He said that the Western systems are indeed valid. “However, if I want go to the moon, I need scientific knowledge, but, if I want to defend the biodiversity of Africa, I need local knowledge systems.”

In contrast to an exhausted North Atlantic order, the Global South, in its immense diversity, presents itself today as a wide field of economic, social, cultural, and political innovation.  Our task is to open up more spaces for mutual recognition, intercultural understanding, political convergence, respect for identities and celebration of diversity.

The time is now—the financial collapse and its social repercussions have translated into unusual levels of awareness and even rebellion in countries of the North.  The question of wealth and power distribution and concentration are squarely on the agenda.  People are furious how the very wealthy, were able to benefit from a government insurance policy called "too big to fail."

Never before in history have the question of wealth and power distribution and concentration been so squarely on the agenda.  People are furious how the very wealthy, were able to benefit from a government insurance policy called "too big to fail" –shamefully,  banks and investment firms made ridiculously risky and illicit (but not technical) transactions, with rich rewards, and when the system inevitably crashes, they can run to the nanny state for a taxpayer bailout and a very visible handout, Milton Friedman notwithstanding. 


If law cannot comfort the afflicted, then it should at least afflict the comfortable.  What we’ve witnessed is the evolution of a law that protects the comfortable and their comforts, which is to say their power, against the powerless.   We are talking therefore of bringing justice back in, so as to reflect the feeling, once summed up in a mural during the Uruguayan military dictatorship: “they took away justice and they left us the law….”

Paradigm construction is a historical process. As the good Dr. Johnson used to say, "Men more frequently require to be reminded than informed."  And women, he could have added, will always be around to remind men what is it they really need to be informed about.

We need to be reminded of the faith of a universal human being named Steve Biko who once sad “A man without a positive history is like a car without an engine Biko said then and says today that the new paradigm has always been within us. It will not disappear on account of the imbalance of power, between North and South, between people and corporate power, between humanity and ecology.

Our History, the History of the South is Positive, lets turn this engine on and step on the accelerator in this historical quest for social justice, and/through  a new ecological compact with Nature.



But whoso looketh into the perfect law of liberty, and continueth therein, he being not a forgetful hearer, but a doer of the work, this man shall be blessed in his deed.


James 1:25












[1] guardian.co.uk, Monday 17 September 2012.
[2] http://daraint.org/wp-content/uploads/2012/09/CVM2-Low.pdf; http://www.reuters.com/article/2012/09/25/climate-inaction-idINDEE88O0HH20120925; http://www.forbes.com/sites/timworstall/2012/09/27/the-climate-vulnerable-forum-report-really-not-very-good-at-all/
[5] Four years ago today, President George W. Bush signed into law the biggest corporate rescue in American history. Even as U.S. unemployment has remained above 8 percent for 43 months, the country’s biggest banks are making almost as much as they ever have.The combined $63 billion in profit reported by the six largest U.S. lenders over the four quarters through June is more than they earned in any calendar year since the peak in 2006.Bank of America Corp. made more in the 12-month period than Walt Disney Co. and McDonald’s Corp. combined. Citigroup Inc. (C), which like Bank of America took $45 billion in taxpayer funds from the Troubled Asset Relief Program, earned more than Caterpillar Inc. (CAT) and Boeing Co. JPMorgan Chase & Co. (JPM), the largest U.S. bank by assets, had profits of more than $17 billion even after reporting a $5.8 billion trading loss.  No Joy on Wall Street as Biggest Banks Earn $63 Billion,By Max Abelson - Oct 3, 2012, http://www.bloomberg.com/news/2012-10-03/no-joy-on-wall-street-as-biggest-banks-earn-63-billion.html

[6] Human Rights Watch, 2008;
[7]David Bilchitz, The Ruggie Framework: An Adequate Rubric for Corporate Human Rights Obligations?  Sur, International Journal on Human Rights,
http://www.surjournal.org/eng/conteudos/getArtigo12.php?artigo=12,artigo_10.htm
[8] In his recent book titled With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful, Glen Grenwald documented a two-tier system of justice in the US where political and financial elites are  vested with virtually absolute immunity from the rule of law even when they are caught committing egregious crimes, while ordinary Americans are subjected to the world’s largest and one of its harshest and most merciless penal states even for trivial offenses. As a result, law has been completely perverted from what it was intended to be – the guarantor of an equal playing field which would legitimize outcome inequalities – into its precise antithesis: a weapon used by the most powerful to protect their ill-gotten gains, strengthen their unearned prerogatives, and ensure ever-expanding opportunity inequality… The law itself wields tremendous power. The legal system’s reach is unparalleled: it can deprive a person of property, liberty, even life. It may compel people to transfer their material goods to others, block them from engaging in planned actions, destroy their reputations, consign them to cages, or even inject lethal chemicals into their veins. Unequal application of the law is thus not merely unjust in theory but devastating in practice.. When the law is wielded only against the powerless, it ceases to be a safeguard against injustice and becomes the primary tool of oppression.”

[9]http://www2.warwick.ac.uk/fac/soc/sociology/staff/emeritus/robertfine/home/teachingmaterial/humanrights/lecturepodcast/thompson_lecture.pdf
[10] Tom Egelhardt in http://www.tomdispatch.com/blog/175398
[11] http://www.nytimes.com/2012/06/25/opinion/americas-shameful-human-rights-record.html?_r=0

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