Revue Européenne du Droit
World, globalization and mondialité
Issue #2
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Issue #2

Authors

Christiane Taubira

21x29,7cm - 186 pages Issue #2, Spring 2021 12,90€

The world exists outside the consciousness we may have of it. But it is only amendable if we hold it in full consciousness.

As everything dies,

I’ve expanded myself – like the world –

and my conscience wider than the sea!

Last sun.

I burst.

I am the fire, I am the sea.

The world is falling apart.

But I am the world 1

Aimé Césaire, “Les pur-sang”, in Les Armes miraculeuses, 1946

“The world is falling apart. But I am the world.” This was already in 1946. The world that was falling apart was the world of colonial empires. The world is unravelling at its center, where it has claimed its center to be for centuries. It is unravelling because it has imported at that time and into that center, into its very heart, methods that it had implemented, with impunity, in its peripheries: “the supreme barbarity, the one that crowns, the one that sums up the daily life of barbarity…” and that had been endured because until then only “non-European peoples” had been victims of it. This is the conclusion of Césaire, again, this time in the Discourse on Colonialism. This reproduced “barbarity” encompasses both the massacres and the smoking and mutilations of forced labor, and the rebels who were covered with hail of bullets and “full barrels of ears harvested, pair by pair, from friendly or enemy prisoners.” Confession of the count d’Hérisson, ordinance officer.

This addiction to abominations, these crimes and wrongs perpetrated in the colonies have –according to scholars, philosophers, historians and jurists– foreshadowed the tragedies of the twentieth century. This is how the genocides of the Herero and the Nama took place at the beginning of the same century. The territory was not yet called Namibia. In these first concentration camps, some outrageously bony silhouettes of Herero and Nama are terribly evocative of the future silhouettes of the Jews in the extermination camps. This is a doctrinal genealogy. It was like a sordid training. And already a Göring was hanging around there. The mechanism is the same, calibrated on the same icy madness: the expulsion from the human family, by the thousands, by the millions, of a group of people. The motive can be greedy. Obviously, it was so for the transatlantic slave trade and African slavery. Racism came later. It may not be the driving force, greed follows very quickly. This is evidenced by the spoliation of property belonging to Jews. Under whatever pretext atrocities are committed, and whatever the differences in appearance or affiliation between the perpetrators and the victims, these crimes are the concern of humanity. “It is neither the number of victims nor the intensity of their suffering, but the denial of the eternal man within each one” that constitutes a crime against humanity, sums up Mireille Delmas-Marty forcefully and soberly.

In Creole folk wisdom, there is a saying that every calabash gives two kwis. The “kwi” is the bowl formed by half of the calabash fruit, oblong in shape, split in the middle in the longitudinal direction. These two halves are hollowed out – the fruit being inedible – and serve either as a container for water or as a wall ornament, the peel being worked at the tip to inlay motifs with esoteric or simply decorative shapes. The lesson drawn from using such a fruit, which is disconcerting in that it has no nutritional or gustatory value, is like a dialectical pillar, summoned in all situations where an action generates contradictory or unexpected results. Every calabash yields two “kwis.

And so it is with this first globalization. It was accomplished in the din of the cannons that settled imperial rivalries; the roar of the sea, the immense and dumbfounded cemetery; the round of flags planted, snatched and replanted; the clash of victorious or annihilated insurrections; the barking of the dogs thrown at the heels of the negro-brown; the obstinacy to laugh, sing, dance after crying; the false peace proclaimed by papal bull; the anathemas of religious dissidence; the intercultural mutualities; the interracial fraternities; the resolute or indecisive injunctions of abolitionists; ritual rapes, ordinary rapes, whips and shackles, violence of all kinds and their refinements; unexpected solidarity; unexpected love affairs; incongruous minuets danced in the salons of the master’s residence; governors’ balls; the prolix artistic, linguistic, mystical, plastic expressions born in the fields of cane and tobacco; the symbolic innovations tinkered by improvised shamans; the sharing and fabrication of empirical knowledge; cosmogonic interpretations; creativities of survival.

This globalization has produced a legislation where the law was based on the primacy of force and the codification of lawlessness. The black code promulgated by Louis XIV established the status of “movable property” attributed to slaves, alternately called negroes; the Spanish codigo negro proceeded in the same way. The master, who was in fact granted the rights of ownership, abuse and death over his slaves (his livestock), saw these rights consolidated and was himself sanctioned, albeit very weakly, with a fine, if he consented, without punishing him, to one of his slaves selling a few sugarcane culms, an activity that was formally forbidden by law. The preservation of the colonial order, placed above the negligence or guilty complacency of a master, however accidental, is at stake. The same black code expels all Jews residing in the colonies within three months, on pain of “confiscation of bodies and property.” The Edict of Fontainebleau, for its part, targeting Protestants, includes the Colonial Exclusion prohibiting any processing economy in the colonies. These two texts raise, to obviously different degrees for slaves, Jews and Protestants, but for all of them absolutely, the question of the relationship of these European legislators to otherness. In the same Europe where Erasmus, Grotius, Montaigne had already sharpened and shared their thoughts on the rights attached to people, on hospitality, on otherness. And even Montesquieu, how can one be Persian? Although the man of the Spirit of the Laws was ambiguous, to say the least, about what the Americans called “the particular Institution”.

But the time came when the deportations through the Atlantic and the Indian Ocean dried up. The slavery system is too scuttled by a thousand kinds of resistance, too contested, too vilified, too challenged, too competitive. It was time to get out of it. Physically and legally. By decree, the masters are compensated. Not the slaves. In spite of Condorcet’s final words as early as 1781, according to which “the master had no rights over his slave and the action of holding him in servitude is not the enjoyment of property, but a crime.” And well before Condorcet, the Capuchin priests Epiphane de Moirans and Francisco José de Jaca, as early as 1680. However, by royal ordinances or by decree, in Santo Domingo-Haiti in 1825 (at the expense of the young Republic of Haiti) as in the other colonies in 1848 (despite Schoelcher’s efforts), it was the masters who received “compensation” from the monarchical State. Not the slaves. Nor their descendants.

Under the combined or thwarted blows of recurrent rebellions, economic mutations, commercial competition, financial emergences, moral clamor, specious reasoning and meticulous calculations, devious speeches and good faith misunderstandings, the time came for the decentralization and spoliation of territories. From then on, the slave traders and merchants ceded it to the officers and generals. It was Bugeaud’s time: “Smoke them in their caves like foxes”. It was the time of Saint-Arnaud: “Let’s ravage, burn, plunder and destroy houses and trees.” It was the time of Loti: “Then, the great slaughter had begun. We had made salvo fires! and it was a pleasure to see this hail of bullets falling on them.” It was also the time of bluster. Not really a shameful conquest. But a glorious and generous dress: a civilizing and evangelizing mission to the “inferior races” of Retzius, Gobineau and others like Galton. Lost among them were Renan and Ferry.

Laws adapt: there are subjects, evolved people, Natives, Muslims with half-citizenship, Chinese mestizos distinct from Annamites. So many new legal categories. Imperial rivalries carry on. Then came the Berlin Conference and the Acts that followed. A division-butchering. But the forms are saved: Treaties are signed. The principles of Westphalia are only valid between butchers. On the ground, the real life is that of millions of people suffering. There is also, fortunately, André Gide and above all Albert Londres.

European legal systems necessarily bear the stigmas of these contortions. The international law that followed this first globalization is still that of arbitrariness and force; it is also that of the power relationships. When the monstrous butchery of the First World War occurred, wounded consciences realized that this culture of force and violence had the pernicious capacity to turn against its perpetrators. It followed a return to that humanism that was already there and which the Enlightenment had renewed, explored and extended. Although it does not seem that it is finally time to give up empires and various forms of domination, there is a prescience of the fact that the world is made in one piece, which will be confirmed shortly, in less than a quarter of a century, by space activity and observation. However, the will that comes from this prescience was still too weak. The League of Nations, immature, unfinished, did not prevent the new conflagration, although spotted, although emerging, yet popping up, yet bursting into flames ready to explode to the point that Stephan Zweig, desperate, fled to the southern hemisphere after having auscultated The World of Yesterday; and that Romain Rolland, faithful to an ethic of life as much as to a haunting vital passion in the face of “this insane humanity”, will try desperately and in vain to stand his ground and invite his peers, these and those who still kept the Republic of Letters alive, not to be seduced and disoriented by the clash of cannons. To remain Above the battle. The worst turned out to be more certain and even more abominable than his promises.

The world came out of this murderous chaos stunned. Trauma is common and cross-cutting. This time, seriously, the future had to be safeguarded. With a feverishness that was both restless and determined, the new powers of the world settled down around tables of palaver, drafting and proclamation. Perhaps the flaw in the armor was to be found in this assurance of the victors’ good right. This lack of hesitation was salutary for the rapid and efficient setting up of the Nuremberg Military Tribunal for the purpose of judging living and accessible defendants, and making the search for and prosecution of fugitives legitimate. However, it gave, in the second “kwi” this time again, a binary posture of the good victors, emblems of Good, exonerated of all fault, charged and virtually mandated by humanity to eradicate Evil. Yet the stains of pre-war international law with its angiomas had still operated through legal (in the US) or de facto segregation, as evidenced by the separate units: the Black Power, the Senegalese Tirailleurs, the Harlem Hell Fighters, and after the war, the differentiated pension schemes.

In this new ordering of the world, the victorious powers have the influence of their economic and military weight, of their dynamism and of their imperialist/anti-imperialist vision of the world, depending on the geopolitical regions. Thus, the emerging past of the Soviet empire already clashes with the rising arrogance of the United States, while China, sure of its civilizational permanence, placidly puts its mark on this world order. Just as Russia never ceased to seethe under the Soviet empire, so China never erased its certainties of immutability, even during the years of Western subjugation. It made a serene and detached contribution to the work of recasting and reconstructing international law. As for Europe, perhaps it is beginning its existential introspection in the terms posed by Paul Valéry: “Will it retain its pre-eminence in all genres? Will Europe become what it really is, i.e. a small cape on the Asian continent? Or will Europe remain what it appears, that is to say: the precious part of the earthly universe, the pearl of the sphere, the brain of a vast body?” There is now more room for realpolitik than for clay-footed giants’ fantasies of grandeur. Yet Europe and its future remain one of the most interesting questions posed by this post-war period. Césaire asked the question in a very different way and answered it with the following words:

“… if Western Europe does not take of itself, in Africa, in Oceania, in Madagascar, i.e. at the gates of South Africa, in the West Indies, i.e. at the gates of America, the initiative of a policy of nationalities, the initiative of a new policy based on the respect of peoples and cultures; I mean, if Europe does not galvanize moribund cultures or awaken new cultures; if it awakens homelands and civilizations, without taking into account the admirable resistance of the colonial peoples… Europe will have deprived itself of its last chance and, with its own hands, will have pulled on itself the sheet of the mortal darkness”.

This anxious and confident tirade from Césaire expresses concern about the imperialist appetite of the United States, with its economy, financial rules, doctrines and navy, regarding what it considers to be its backyard: the Caribbean and Central American countries. It is understood that the awakening of nationalities is conceived as elements of vitality, not withdrawal, as effervescent parts of a whole, not as tension. For “every culture is born from mixing, encounters and shocks. Conversely, it is from isolation that civilizations die,” as Octavio Paz asserts.

We must also agree that with its eagerness to draft and adopt conventions, to arm them with human rights and demands, Europe has been able to reawaken its immunity from barbarism and restore its own cultural and ethical foundations. It has not been free of ambivalence. And these ambivalences will save it by condemning it, when colonized or dominated peoples will brandish in the face of their oppressors these values and these discourses forged at the very heart of European humanism, when they will display their own cultural, intangible, spiritual, moral and aesthetic baggage restored and rehabilitated, and there when they will base their contributing share to the heritage of humanity. And thus, their right to freedom and sovereignty.

At the end of the globalization that resulted from centuries of slave trade and slavery, then from the crimes and misunderstandings of colonization, the international law that attempted to flourish was inspired by antagonisms between the fragmentation of empires, the sharing of empires, and the lust for new conquests. At the end of the Second World War, the dynamics of emancipation intensified and, with varying degrees of success, forced the European States to confront their values, their discourse and the missions of their troops. It will still take time to overcome the culture of domination and of legal dominion of the self-proclaimed superior races.

The new international law, much more successful this time, will incorporate contradictions, if not resolve them. Thus, the United Nations Charter recognizes both the inviolability of borders, including those of colonial empires, and the right of peoples to self-determination. It nevertheless lays down a solid democratic foundation through the principle: one country, one vote, regardless of size or wealth. Even if the Security Council, as much an instrument of power as a resurgence of the world of empires, strongly nuances the practicability of this display of equality.

The international law developed after the Second World War addressed gross violations of rights and freedom, formulating a series of prohibitions: slavery, trafficking in persons, forced marriages, debt bondage, organ trafficking, etc. It tackled the ultimate crime: crime against humanity. And there lies the yardstick for credibility and usefulness. “There are matters, including in the field of human rights protection, where sometimes the same rules are needed. Crime against humanity is precisely an example of this” explained Mireille Delmas-Marty on the need to harmonize international law in the light of contemporary upheavals.

With this work accomplished, it remains to be understood why the effectiveness of such a clear-sighted, coherent, eloquent and pragmatic body of law remains so partial, uneven and inconsistent. This is the yardstick of the probity of multilateral forums.

We should retain the definition of rights, for their effectiveness, as set out by Simone Weil in her book The Need for Roots, subtitled Prelude towards a declaration of duties towards mankind which was published before the proclamation of the Universal Declaration. “A right is not effective in itself, but only through the obligation to which it corresponds,” she says.

Understanding the dead weight of international law is essential in order to grasp the extent to which both its creators and the institutions responsible for implementing it have been able to free themselves from the imprint of a world ruled by a customary law of force. Suspicion has not disappeared. It even hangs over the International Criminal Court.

However, it is not armed with the best assessments and analyses that we will take the next step. For it is now a matter of “entering together into this new region of the world” as Edouard Glissant foresaw. This new region of the world is neither geographical nor physical. There is no more land left to discover and conquer. Boundary and territorial wars are fought on known, and often already administered, ground. Our world is circumscribed. It is spied on, contemplated, measured by satellites. It is connected by its oceans, rivers and watersheds, its swamps and mountains that cross the lines of the history of wars and treaties, its sandy deserts and dunes that the wind makes travel. It is a whole when pandemics jostle it and highlight the violence of inequalities. This world, which today can implode under the tyranny of materialistic and financial fury, carries within it the forces of a shift towards a possible conviviality. As in the case of globalization, currently under the grip of exhibitionist fortunes, bawling speculation, insatiable predictions and indecent opulence, the desirable future of the world remains in the hands of the multitudes. Globalization was foreshadowed by those who presided over the logics of murderous chaos, quickly relayed by those who saw in it a market too vast to be seriously regulated or controlled.

Likewise, those who refused to abandon the world to chance and to yield before the confiscation of a common future have had multiple intuitions of mondialité. This mondialité whose beginnings are already in globalization. Like the kwis. Edouard Glissant lets us suppose that mondialité comes from Being in Relations. These Relations are the only alternative to great brutality, fears, intimidation, deadly competitions. Mondialité contains both the consciousness of the world and the will to connect it not only though the market economy, but also though a desire to become interdependent. Is this a mission of the Law? Unlikely. Law can build trust and appeasement, peace and justice. Relations are based on other fields, those of dynamic identities experienced in curiosity about oneself, those of otherness and its hazards, those of inalienable dignity. We must at least stop expelling poetry from politics, beauty from daily life.With their “Boussole des possible” (“compass of possibilities”), Mireille Delmas-Marty and Antonio Benincà set out to make intelligible concepts that can navigate between (legal) norms and (aesthetic) canons to give body and image to a common language. Hazardous but essential bridges. Meetings in harmony and/or through shocks. It is in these fields: literature and all artistic expressions that the unexpected can unfold, which will heal the wounds inflicted by the murderous chaos, which will be followed by the unpredictable and inextricable chaos-world as prophesied by Glissant. The adventure is universal in the unusual sense that in this world of diversity, of opposites and opposables, recognized as such, all civilizations, all cultures, all human experiences can rub shoulders, recognize each other, amend and confront. Without eliminating each other.

Notes

  1. Editor note: Free translation from french.
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Christiane Taubira, World, globalization and mondialité, Aug 2021.

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