To what extent can the principle of the common become a legal axis that operates on a global scale, one that is capable of both imposing itself on states and structuring the activity of international and intergovernmental institutions? In particular, how can we make the common the political principle upon which the total re-organization of society is based in the context of an irreducible plurality of “commons” of all shapes and sizes, from the local to the global? How do we ensure coordination amongst these commons without jeopardizing the autonomy of each? For without autonomy there is no co-obligation, and without co-obligation there is no common in the truest sense. Or better, can this coordination be conceptualized in such a way that it is itself conceived as a form of co-obligation at a higher-level, one that logically proceeds from the levels beneath it?
It becomes more and more obvious with each passing day that the neoliberal orientation of both transnational capital and contemporary nation-states – coordinated by international organizations like the International Monetary Fund (IMF) or the World Trade Organization (WTO) – will only aggravate today’s problems to the point at which they will eventually become impossible to solve. We are thus witnessing increasingly urgent calls for some form of global counter-measure equal to the perils we are facing. The rhetorical success of phrases like “global justice” and “environmental justice” testify to this need. But growing consciousness of the problems we face is not nearly sufficient to take us where we need to go. Activists in NGOs, progressive legal circles, and in ecological and alter-globalization movements who are searching for alternatives face the daunting task of reconciling very heterogeneous approaches to the same problems: some persistently invoke republican “universalisms,” others cling to a more socialist brand of internationalism, while still others insist the solution lies in a more or less “deep” environmentalism. This dilemma seems to be most acute when religious traditions or other essentialist cultural “ontologies” are awkwardly combined in order to formulate some notion of the inalienable rights of humanity, nature, Mother Earth, etc. For instance, “Pachamama” – the Inca goddess of Mother Earth – and Western notions of subjective rights are not necessarily all that philosophically compatible. The TIPNIS 1 conflict in 2011,1 which was a project to build a 350-kilometer road through a Bolivian national park, was a perfect example of the competing logics that must often interact within social movements: indigenous communities, who invoked the rights of “Mother Earth,” were opposed by the peasant unions who argued for the economic benefits of opening the region to industry. This case is exemplary insofar as it highlights the very practical problem of constructing a common that transcends the dichotomy between worker productivism and religious deifications of nature. Given the realities of this dilemma, good feelings and grandiloquent rhetoric tend to merely hide these underlying political fissures.
Yet despite all these difficulties, the idea of creating a “global common law” that might break through this intergovernmental impasse is gaining ground. In the first instance, however, it is difficult to see how a “government of humanity” could impose such a right from above. The development of some form of “common right of humanity” can only be realized through the creation of new forms of political organization. Moreover, such efforts must contend with an “international law” that is currently – perhaps more than ever – a formidable terrain of struggle that does not merely pit nation-states against one another. Rather, confrontations increasingly pit transnational corporations in alliances with states, who are committed to defending an international order entirely dedicated to the imperatives of capitalist accumulation, and hostile to all social and ecological forces dedicated to promoting fundamental rights of access to “common goods.” Under these geopolitical conditions, we are incredulous that new political rights could issue from a global sovereign of some kind any more than they issue from the multitude of powers competing in today’s neofeudal global order.
According to some legal theorists, like Mireille Delmas-Marty, political action on a planetary scale seems to be oriented toward the affirmation of some notion of the “rights of humanity.” In other words, we seem to be tending toward a new global legal framework in which “humanity” itself is increasingly conceived as a “legal subject.” “Crimes against humanity,” the “world heritage of humanity” (i.e., the United Nations Educational, Scientific and Cultural Organization [UNESCO]), “the common goods of humanity,” etc. are all examples of legal or economic doctrines that testify to the gradual emergence of humanity as a “legal subject,” which we should not view as problematic but should rather embrace as a solution to the issues facing our world. These various doctrines sketch out the legal framework of a global society that is grounded in the symbolic figure of humanity qua political subject. This is the hope of many of today’s more optimistic legal thinkers: a global common, a new jus commune for the twenty-first century, is already in the process of emerging by virtue of the “imaginative force of law.”2 Humanity thus becomes a kind of retroactive legal subject by virtue of all the fundamental rights ascribed to it by various treaties, pacts, and other legal conventions.
This right of humanity was first rooted in the designation of humanity as a victim, through the recognition of acts of genocide or apartheid as “crimes against humanity,” wherein it was argued that an attack on one part of humanity is an attack on humanity as such. Since the Second World War, crimes against humanity have been based on universal “founding prohibitions.” The institutional recognition of “international criminal justice,” based on a system of courts, doctrines, and jurisprudence, marks one of the first important steps in the gradual constitution of humanity as a legal subject. The most optimistic proponents of this new legal humanism continually point out how we are only in the earliest stages of the eventual development of global justice: the geopolitical relations between the world powers still play a major role in the definition of crimes, the application of the law, and the realities of criminal prosecution. But for these proponents, the arc of history is not in doubt. And perhaps they are right: there is no doubt that “humanity” is increasingly replacing “God” as our great symbolic reference – but, of course, this does not mean “humanity” is any more capable than “God” of becoming a coherent legal subject. That humanity has not yet acquired full legal personhood is hardly contentious,3 but the idea that humanity inevitably must acquire it certainly is. In our view, however, there is simply no place for a “bare owner” of any kind.
The promotion of global or world justice, according to the usual formula, at least, does not presuppose the legal subjectification of humanity. After the failure of the League of Nations, renewed interest in legal cosmopolitanism then followed the Second World War, and was buoyed by the widespread commitment to avoiding similar disasters in the future. As Alain Supiot has shown,4 it was precisely this idea of transcribing global social justice in a declaration of rights that inspired the Declaration of Philadelphia of May 10, 1944. The declaration re-defined the goals of the International Labor Organization by addressing “all the peoples of the world.” The declaration states that a “lasting peace can be established only if it is based on social justice,” and this must constitute “the central aim of all national and international policy.” The declaration’s fundamental aim was the institutionalization of labor on global scale, as its opening article indicates: “labor is not a commodity.”
But of course this declaration, like the 1948 Universal Declaration of Human Rights, has never enjoyed the full force of law. Similarly, the raft of conventions signed during the 1960s concerning all manner of social, economic, cultural, civic, or political rights were severely circumscribed in terms of their scope and application. What we learn from these past attempts is that there are two fundamental obstacles to the emergence of a “common law of humanity.”
The first obstacle is of course the long-standing principle of political sovereignty. This principle has not been abolished by neoliberal governance (as some contend) but has rather been integrated into new forms of power: by means of sheer force alone, sovereign states continually paralyze the development of any such common right by relentlessly asserting their own interests. The commonplace paralysis in the United Nations Security Council sufficiently demonstrates how la raison d’Etat – which is nationalistic by definition – always trumps la raison d’humanite. The United States, and several of its allies, continually impedes international law by refusing to recognize the legitimacy of the International Criminal Court, by supporting the global extension of commercial rights and standards in line with US domestic law, or simply by using its technological and economic superiority to its own advantage. By effectively denying the very existence of international law, the United States indemnifies itself against any sanction relating to targeted assassinations, torture, extraordinary rendition, widespread electronic communications surveillance, etc. As David Rose aptly put it, the US invasion of Iraq was really an American war against human rights under the pretense of a war on terrorism.5 The reality is that the most powerful states are constantly waging an extensive and systematic war against the very notion of a “common humanity,” whether in the economic or financial sphere, the realm of ideas and freedoms, or concerning climate change. While the major powers may occasionally sign international treaties, they always interpret the contents of these treaties in ways that undermine their power the least.
The second obstacle to the creation of a “common law of humanity” is closely related to the first obstacle, insofar as it concerns neoliberal policies that “organize” the world according to competitive norms, predatory strategies, and a general logic of war, as opposed to principles of cooperation and social justice. It could even be argued that, over the past thirty years, neoliberal policies have in fact been used to methodically undermine all the post-war attempts to empower workers and citizens, to the point of halting and even reversing the prior trend toward greater human rights that began in 1945. The neoliberal doctrine of “normative Darwinism,”6 which puts national legal systems in competition with one another in an attempt to create the most advantageous environments for international investment, is now being used to deconstruct any legal barrier or social protection that hinders the realization of maximum profits. Accordingly, the market is now the principle source of legitimacy in international and European law, and it promotes a social “race to the bottom” around the world.7 As Delmas-Marty shows, the bipolarity in international law between the “market” and “human rights” now almost completely favors the former term. In place of “human rights,” neoliberal policies encourage a “market of rights” and the associated practice of “law shopping” in relation to corporate taxation, commercial law, and labor law. This generalized “market of rights” is leading us toward a form of “re-feudalization,” as Alain Supiot puts it, that benefits the most mobile legal entities – namely transnational corporations – who are then able to exercise their “free choice” and select the norms that suit them best. As Antoine Garapon points out, “globalization puts systems of justice into competition, because litigants [i.e., capital] now have the choice of litigating wherever they want.”8 “Legal evasion” through international “forum shopping” is now as systematic as tax evasion. Private economic powers, through these forms of competition, thus become direct sources of commercial, economic, and social norms. It is understandable, then, why the lex mercatoria is much more advanced, at the international level, than the laws designed to protect people: if the pace of commerce has advanced much more quickly than the pace of rights, it is precisely because rights themselves are now commodified.9 Whether we are dealing with health, culture, access to water, or pollution, the logic governing these domains is always free trade and absolute respect for the rights of property. The principle objective of the WTO and its Dispute Settlement Body (DSB) is for every state to internalize international neoliberal standards. And the faster these norms are internalized, the better equipped they are to hinder the extension of human rights.10
There is no doubt that heterogeneous power relations are shaping these various systems. International law, for instance, has been largely taken over by American legal firms through their extensive consulting and lobbying efforts. The global legal order – if one can use such an expression – is therefore the product of a kind of “judicial commerce” between judges who circulate within a system of informal gatherings and are hired to perform international commercial arbitration.11 Common law judges are especially valued in the settlement of commercial disputes, insofar as they view the contract as a sacred object that transcends any policies designed to serve the public interest.12 This “trade in justice,” in which regulatory authorities use the threat of law to (paradoxically) avoid applying the law, has been increasingly commonplace and reveals how much the law is complicit in its own abdication.13 It is this globalized and globalizing jurisprudence that has created a world order that is increasingly tailored to the needs of capital, and which produces the very institution we have referred to here as “cosmo-capitalism.” Cosmo-capitalism is a rather paradoxical institution, insofar as the law itself is completely commodified and reduced to a set of technical mechanisms that are manipulated in order to manage the interests of various parties according to their financial means. This is all part of an ongoing and very real privatization of international law that affects societies and economies in far deeper ways than the various guarantees it offers to investors and financiers.
Unlike this neoliberal discourse, there is another discourse that deploys the tools of classical economics, but this time in order to advocate for “global public goods.” In the early 1990s, when the norms and mechanisms of neoliberalism were first being established, the United Nations seemed to be following a new, if not completely divergent, path. In 1990, the United Nations Development Program (UNDP) issued its first report, which was strongly influenced by the work of Pakistani economist Mahbub ul Haq and Indian economist Amartya Sen. The report proposed expanding the definition of “development” beyond the narrow criterion of quantitative GDP growth. The report advocated what would become the Human Development Index (HDI), which ranks countries on such criteria as well-being, life expectancy, literacy rates, access to health services, and education. In 1992, the Rio de Janeiro Conference on Environment and Development (UNCED), which was prompted by the Brundtland Report (1987), introduced the notion of “sustainable development” as a means of linking the satisfaction of present needs with the needs of future generations.14
It is in the context of these developments that the ideal of “good global governance” was linked to the production of “global public goods,” which themselves are defined in terms of their beneficial effects for the planet as a whole. Armed with its distinctions between different types of goods, modern economics offered to rigorously define the composition of this new “global public domain.” “Global public goods” – which no one can be excluded from, by definition – are goods that no national state itself has an interest in producing, and which therefore give rise to the familiar “free rider” problem.15
The UNDP economists have been further developing this approach since the 1990s.16 According to Inge Kaul, Isabelle Grunberg, and Marc A. Stern:
Global public goods [have] nonexcludable, nonrival benefits that cut across borders, generations, and populations. At a minimum, the benefits of a global public good would extend to more than just one group of countries and not discriminate against any population group or set of generations, present or future.17
While the total list of these objects is a matter of debate, there is no doubt that the issue of pollution and sustainable development (much like the role tax havens have played in the study of fiscal deficits or international terrorism) has considerably accelerated analysis of this issue.18 The UNDP economists distinguish between three classes of global public goods. Class 1 are “natural global commons” (the ozone layer, climate stability, etc.), and the principle concern regarding these goods is “one of overuse.” Class 2 are “human-made global commons,” such as scientific knowledge, the Internet, etc., and the principle concern with these goods is “underuse.” Class 3 deals with “global policy outcomes” – i.e., the collective results of integrated or coordinated global policies, such as peace, health, and financial stability – and the principle problem here is “undersupply.”19 In slight contrast to the UNDP economists, Joseph Stiglitz identifies five global public goods: global economic stability, international security, the global environment, international humanitarian aid, and knowledge. Stiglitz has even generalized his approach by arguing that the global economy itself should be a global public good and should therefore be subject to forms of democratic governance designed to account for political “externalities” and thereby avoid systemic crises.20 As we can see, both these approaches tend to include very different kinds of goods. As we have argued in Chapter 4, this diverse amalgamation is of course ultimately due to the negative definition of public goods: their exceptional status in traditional economic theory derives from the fact that the market cannot spontaneously produce these goods without deliberate collective action.
But is a world state necessary for the production of these public goods? For most of these authors, the answer is no. Instead, accountability and incentive mechanisms should be created that will allow both private and state actors – who are themselves considered private actors given the global character of the goods in question – to participate in their production and protection. Yet fiscal coercion (i.e., taxes) or state regulation would not be appropriate here, according to these economists (over and above the fact that imposing forms of fiscal coercion on states would be impossible to implement at present). As defined by the UNDP theory since the late 1990s, these goods are best produced by private actors through various incentive mechanisms. This theory also has the “virtue” of completely depoliticizing public goods: this approach treats the problem of global public goods as primarily a technical or strategic problem, in the game theory sense of these terms (i.e., the prisoner’s dilemma), and thus this approach fundamentally neglects the constitutive social and economic conflicts inherent to underproduction or overuse of public goods.21
The ozone layer, for instance, which is often taken as a global public good par excellence, is now at the mercy of a market for polluter’s rights, so to speak, on the pretext that financial incentives are the best means to lead rational actors toward an optimal solution. In the same manner in which financial organizations are allowed to participate in the definition of the rules that will regulate them (according to the Basel III Accord), we must also have “confidence” that private actors will come up with optimum policies in environmental matters as well. The Organisation for Economic Co-operation and Development (OECD) similarly intends to solicit the voluntary cooperation of tax havens based on their willingness to provide financial information when asked. In certain cases, it is actually argued that the best way to produce global public goods is to create and strengthen property rights, as in the case of a global CO2 market! As François Constantin has suggested, this new doctrine appears to be a means by which economists can procure a monopoly over good intentions, from which they can derive sometimes symbolic and sometimes very material profit.22 In any case, the entire approach is clearly an attempt to deal with key problems facing the world without making any substantive changes to the dominant order. In other words, once we exclude the state form from possible solutions to the “tragedy of the commons,” the only solution that remains is the privatization of “governance” on the global scale, either in the form of contractual arrangements between private actors or through “public–private partnerships” that involve minimum state engagement.
Despite these problems, the theory of global public goods and its corresponding policies are supported by many global organizations, including the United Nations. The World Bank supports these policies,23 as does the IMF (for whom economic and financial stability is the premier global public good). This sentiment is also shared by the WTO, as expressed by former director Pascal Lamy, who flatly asserted, “the multilateral trading system is itself an international public good.”24 For the economic and political “elite,” private enterprise is the best method for producing the “common good.” Through “corporate social responsibility” and “sustainable development,” private enterprise is encouraged to integrate social and ecological considerations into its management choices. Capitalism, colored pink and green, passes itself off as a system that is both “social” and “natural.”25 The reality is of course a little different and much more prosaic: in order to continue to extend its domain without inflicting too much social and ecological “damage,” capitalism must take advantage of all the “externalities” provided by governments, charitable associations, or NGOs (free of charge, of course). Multinational businesses continually demand an optimum “environment” in which to do business, which includes political stability, urban infrastructure, top-ranked university systems, and even charitable support for the working poor and adequate prisons for offenders. Yet at the very same time, the most powerful multinationals do absolutely everything they can to avoid paying corporate taxes, either through the threat of capital flight or with the help of international tax havens. Regulation through competition only ever leads to non-cooperative solutions that directly threaten the climate, energy resources, living and working conditions for employees, as well as the most basic collective functions performed by public services. In short, the unique categorization of global public goods, whether we are talking about currency, counter-terrorism, free trade, or climate policies, does not in any way prevent social and fiscal “dumping.” In fact, one could argue that the dominant global powers (with the United States in the lead) and other international organizations (such as the WTO, the IMF, and the World Bank) have carefully selected certain “global public goods” that accord with their specific political and economic interests, to the detriment of other potential public goods.
We must not, however, confuse this economic theory of “public goods” with the legal paradigm of the “common heritage of humanity”: they do not entirely overlap and they do not obey the same precise logic. The legal reification at work in the concept of “humanity’s common inheritance” is largely derived from a much older juridical tradition of “things in common” (choses communes). Since at least Grotius’s Mare liberum (1609), modern law has used Roman law as a template for codifying certain common spaces or objects as unappropriable by sovereign states.26 We find contemporary uses of this legal tradition in, for instance, the discourse of a “world heritage of humanity” used by organizations like UNESCO and the United Nations to identify and protect unique natural and cultural resources. In this discourse, the old Roman category of res communis achieves a rather surprising currency in contemporary international law: through the work of organizations like UNESCO, nation-states agree to renounce their absolute territorial sovereignty (in very small territorial pockets) and submit themselves to collective rules on behalf of the present and future well-being of humanity, and all because the nature or uses of certain objects designate them extra commercium – i.e., the common heritage of humanity and therefore unappropriable.27 Yet, for us, the expression “common heritage” is problematic insofar as the very notion of an “inheritance” without an owner does not seem very coherent.28 This deserves a closer look.
The concept of the “common heritage of humanity” first appeared in The Convention on the Protection of Cultural Property in the Event of Armed Conflict (1954). The convention was a response to the looting and destruction of museums by Nazi armies during the Second World War, and the preamble explicitly references “the cultural heritage of all mankind.”29 The legal category of “world heritage” was also adopted in the first Geneva Conventions on the Law of the Sea (1958). As Prince Wan Waithayakorn of Thailand points out, it was in the “general interest to clearly determine the laws of the sea and ensure the law fairly regulates the various interests at play and ensures the conservation of this inheritance for the benefit of all.”30 A decade later, the seabed was then legally codified through this category so that mineral resources, beyond the zones controlled by coastal states, would be protected from exploitation and placed under the control of the United Nations. At the same time, a series of treaties have extended this same classification to the celestial bodies of the solar system – with the exception of the earth itself, of course. The 1967 Outer Space Treaty makes use of the notion of the common heritage of humanity to delimit any attempt by specific states to appropriate natural celestial bodies. Once again, then, we find the concept of “common inheritance” is largely reserved for objects or resources that are viewed as naturally or intrinsically unappropriable. Yet Susan J. Buck has insightfully shown how fragile this notion of a “world commons” can be. Through such examples as the seabed, Antarctica, outer space, or the atmosphere, Buck shows that while many “world commons” may, at one point, have been protected by declarations of intent or even international conventions that limit or forbid the logic of property, these agreements are ultimately relative to a certain state of technological progress and are therefore easily reversible. For Buck, such international protections tend only to remain in force until a new exploitative technology is invented.31
In any case, the work of UNESCO and other NGOs has gradually widened the notion of a “common heritage of humanity” by expanding its definition to knowledge, beliefs, rituals, techniques, monuments, and languages. In 1970, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property declared all states responsible for protecting the “cultural property of humanity.” The convention defines “culture” as “property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science.”32 A series of largely symbolic declarations have since extended this category to the human genome33 and the ozone layer, while the status of territories like Antarctica continues to be disputed. Interestingly, environmental summits at Rio and Kyoto, for instance, did not use the terminology of “common heritage” as a means of combating global climate change.
In International Law, then, the category of “heritage” encompasses quite a diverse array of material and immaterial goods. What they share in common is the fact that states (or other individuals or entities) cannot appropriate these objects or resources for their exclusive enjoyment, nor can they remain indifferent to the effects of their use or their potential destruction. While many of these objects or resources are excluded from private or public ownership because of their intrinsic characteristics, this is not the only criterion. Some properties are excluded because international law deems them especially valuable on moral, historical, or intellectual grounds. The concept of “common heritage” therefore does not only apply to “things in common” in the traditional sense of Roman law. The current list of heritage objects is thus a strange mixture of resources that are excluded for natural reasons and other objects that are excluded for moral and religious reasons. The concept of “heritage” thus more closely resembles a contemporary “sacred treasure,” or something similar to the sacra of ancient cultures and traditions. There is also the problem of removing some things from private and public ownership on the grounds that they “belong to humanity in common,” while at the same time declaring these objects or resources the “common property of humanity,” as if humanity was a kind of subject who enjoys an eminent right of property over goods that, according to positive law, are the exclusive property of individuals or states. In any case, however heterogeneous the legal category of the “common heritage of humanity” may be, it is quite different from the economic notion of “public goods,” insofar as declarations as to whether some object or resource is part of this common “heritage” are entirely independent of assessments of exclusivity and rivalry. The category of “heritage” is thus much more expansive and flexible than those used in economics to determine whether or not something is a public good. This expansive and flexible logic demonstrates the extent to which these declarative acts are often largely symbolic actions that end up collecting the most diverse “things” under the capacious notion of the “common heritage of humanity.” This category may therefore be extended whenever some right or need is considered fundamental, which amounts to turning these rights or needs into forms of quasi-property or immaterial assets, and thus a subset within the larger framework of the common heritage of humanity: “the inheritance of immaterial property of humanity.”34
As we can see, it is clear that all manner of goods and rights are intermingled under this conceptual umbrella without any great concern for consistency or rigor.
In our view, this is due to the inherent ambiguity of the notion itself. On the one hand, this inherently reifying concept grants special status to only a limited number of objects or resources; on the other hand, the concept is relatively unlimited in the sense that its list of objects can be widened on the basis of changing social demands, political developments, and shifting public opinion. It is this second trait that especially leads us to believe humanity is becoming a legal category. The extension of “human rights” to include forms of “social rights” has actually shifted the former category from its victim-based orientation toward a subject capable of holding rights claims, and even a subject who enjoys property rights over common goods. For some, this shift suggests a possible breach in the continued domination of the logic of the market. If common goods are indeed related to fundamental rights, then political and social struggles may very well receive important support from influential sectors of society, for whom the defense and extension of this concept of “inheritance” relating to common goods lamentably becomes the first and last word of any future strategy.
It is no mystery why the dominant neoliberal logic wants to channel all claims of “common goods” toward a more economistic definition of “public goods.” Whereas the dynamics of political struggle tend to broaden the domain of “common goods of humanity” by connecting them with fundamental rights, the economic logic of public goods is much more restrictive. For these so-called common “goods” do not only refer to finite “things,” but also access to services or institutions: health, education, food, housing, work, etc., all of which are increasingly viewed as fundamental rights that must be universalized. The decisive point is this: according to this approach, fundamental rights and common goods are reciprocally defined. “Subjective rights” are re-defined in terms of access to the basic resources for life and dignity. In other words, water, health, and education are not common goods because of their intrinsic natures, but because they correspond to fundamental rights that are incompatible with the dual logic of markets and states (dominium and imperium) and thus constitute, virtually at least, a common law that supersedes both state sovereignty and property rights.
Critical economists fully understand the advantages to be derived from this notion, though this has often only led to more confusion. Jean Gadrey, for instance, defines common goods as “those collective resources or inheritances (natural, cultural, popular, knowledge-based, etc.) related to human life and activities both today and in the future; and, by extension, it also includes societal qualities and universal rights, because the latter must also be viewed as collective resources to be managed in common.”35 These sorts of definitions are nothing short of an open affront to the reifying discourse of standard economics: rights cannot be reduced to collectively managed “resources,” and this is especially true when we are dealing with so-called “fundamental” rights. Strictly speaking, these rights are inseparable from the individuals attached to them. Transforming them into “resources” that are dealt in the same way in which economics deals with “natural common goods” is thus the surest way of canceling out their “fundamental” character.
This is not to say that such recourse to a fundamental right is new. Indeed, it would be more accurate, in this respect, to interpret the alter-globalization movement as merely extending and revising the “Spirit of Philadelphia.” The call for fundamental rights in the immediate post-war years should thus be seen as merely the first step in a larger process. The Constitution of the World Health Organization (WHO) in 1946, for instance, asserts “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being.”36 Similarly, the Universal Declaration of Human Rights (1948) sought to free humanity from “terror and misery” and to “create better living conditions” by asking signatory states to agree to guarantee a diverse range of human rights, including the “right to social security” (Article 22), the “right to work, to free choice of employment” (Article 23), the “right to rest and leisure” (Article 24), the “right to a standard of living” adequate to one’s basic needs (food, housing, medical care, social services, and social protections) (Article 25), the “right to education” (Article 26), and the right “freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits” (Article 27). It is clear, then, that the International Labour Organization (ILO), the WHO, and UNESCO all shared a similar vision in the post-war years. The International Covenant on Economic, Social and Cultural Rights (1966) similarly enshrined the right that “every member of the human family” must be recognized by their state.
And while this rights-based dynamic continues to be used, to some extent, by a handful of more or less legitimate organizations in the new global order – such as UNESCO or the ILO, for example37 – it has been almost entirely abandoned by today’s most dominant and powerful organizations, such as the WTO, the IMF, or any of the major powers. It is also clear that the imposition of the logic of the market over the past thirty years has been specifically directed against this augmentation of fundamental rights. Intellectual property agreements such as TIPS (1994) are, for example, clearly opposed to the “right to health.” Even after mass protests in the Global South (South Africa, Brazil, India, etc.), pharmaceutical companies granted these countries only minor concessions: they could produce generic drugs for a very limited number of diseases, though their ability to export these drugs to countries that cannot manufacture them remains severely limited. The reign of the logic of property in fields like health and the environment is nothing less than criminal. And it is the height of cynicism whenever the market is described as guaranteeing humanity’s survival through initiatives like a “polluter’s market.”
In any case, it is precisely this drive toward a more and more expansive understanding of fundamental human rights that a triumphant neoliberalism has halted and even reversed. It is worth recalling, in this context, how the most eminent members of the Mount Pèlerin Society, Hayek especially, ceaselessly denounced “totalitarian democracy” and the “illusion of social justice” that would only ever lead toward “serfdom.” The political successes of the neoliberals in the 1980s thus produced policies aimed at brutally undermining any concept of “economic, social, and cultural rights.” These policies have profoundly altered the state apparatus, along with the post-war subjective rights that largely depended on state largesse. Both have become increasingly unraveled in the capitalist countries, such that the neoliberal state, in the words of Wendy Brown, is nothing less than a “de-democratization” machine that has, by now, even begun to take aim at civil and political rights.38
It is understandable, then, why the alter-globalization movement has chosen to strategically circumvent the state. Under today’s neoliberal conditions, the state has actually become one of the biggest threats to the fundamental rights it was supposed to guarantee: to ratify the rights of social citizenship, to recognize the “common goods of humanity,” would mean adopting an operational norm other than the unlimited accumulation of private wealth. It would be a matter of “welding” the logic of the global commons onto the universal logic of the welfare state. And aside from the logistical problems that would inevitably arise from this rather artificial concatenation, would this endeavor not simply reproduce the same Western political structures, as if these structures were timeless frameworks that could be unproblematically transposed onto the fundamental new situation we are facing today?
The basic contradiction of the welfare state, as we have described above, is that the latter was realized within a formal apparatus that knows only two opposing logics: the logic of citizen rights, on the one hand, and the logic according to which the state is tasked with guaranteeing these rights, on the other. The problem arose, however, from the fact that there was no sure way to effectively guarantee these rights (especially as they began to expand in the post-war period), and so the welfare state deployed a combination of income re-distribution and national solidarity in the hopes that the rights of the citizenry could ultimately be compatible with a “civilized” version of capitalism. In fact, these “social, economic, and cultural rights” were theorized, like civil and political rights, as subjective rights that limited the power or reach of the state. In other words, these rights were not based on the kind of obligations and duties that produce the common, which is to say from the practical, political, and institutional conditions that enable the subject of social rights to be, at the same time, the co-producer of these very rights. Indeed, it is rather striking in this respect to observe that the concept of “duty” is only found in one article of the 1948 Declaration of Human Rights, namely Article 29: “Everyone has duties to the community in which alone the free and full development of his personality is possible.” While we understand that these duties, much like civil and political rights, are greatly conditioned by the “nature of the community” in question, it is nonetheless surprising that nothing at all is said in this document about the underlying political and economic conditions or mechanisms that would enable each individual to fulfill their obligations to others. The reality of the matter is simply that the sovereign nation-state was the only possible mechanism for asserting rights against the reign of capital during the period in which these conventions were drafted. And it is precisely this difficulty that paralyzes the alter-globalization movement: the movement unhesitatingly asserts the fundamental right to access a range of goods considered vital or essential to human dignity, but it does not envision a corollary transformation of the global political system in order to realize these fundamental rights. It is hard to see how the current state system, dominated as it is by a pervasive capitalist rationality, could be transformed into the kind of political apparatus that could both support the “common good” and properly distribute “common goods,” short of some miraculous ethical conversion. It is on this point that the alter-globalization movement, if it persists, will have to make a decisive leap and politically commit to transcending the international state system.
But before anything like this can happen, we must begin to acclimatize ourselves to the idea that the law is not simply a ruse of power or a figure of the “police,” but that the law greatly contributes to the formation of modern subjectivity. This is precisely the issue Catherine Colliot-Thélène raises in her work when, for instance, she questions whether the left commands sufficient political and social force to defend our existing rights under today’s conditions of capitalist globalization, much less bring about new political rights: “what will happen to the political subject, the subject of rights, when the state loses the monopoly it holds over guaranteeing these rights?39 This is certainly an important question, but it is only partially developed. If we agree with Colliot-Thélène that the Western legal tradition has made us the subjects we are, and that it forces us to think in terms of subjective rights, we must also acknowledge that this whole system is in decline, insofar as the older Westphalian model is gradually being replaced by forms of neoliberal governmentality. Under these conditions, then, it is entirely insufficient to encourage citizens to “defend their rights” in the face of today’s pluralistic world order. Instead, citizens must actively struggle for the right to co-produce the conditions through which their rights are recognized and their needs satisfied. In other words, it is no longer “social citizens” who must make the rights claims we need. What we need instead are politically and civically active citizens who build relations of responsibility through common production, and who are capable of inventing institutions that allow them to become co-producers of the common, rather than passive “consumers” of services.
While the future “global order” is of course uncertain, there are, nonetheless, trends that have begun to emerge and will continue to take shape unless the situation is reversed. We are skeptical that the most likely outcome will be a spontaneous march toward an “ordered pluralism,” as Mireille Delmas-Marty imagines.40 A more likely outcome is described by Alain Supiot, who argues that neoliberal globalization is leading toward a global “re-feudalization.” For Supiot, this process is characterized by the decline of the state’s social functions and the augmentation of its repressive functions, the possible break-up of nation-states into independent “state-regions,” and the multiplication of regional and supra-national authorities based on a logic of multiple fragmentation in which each sector of society produces its own “mafia-like” norms. This depiction of normative chaos, in which the powerful reinforce their power and wealth by relying on state or para-state forms of violence, already in fact describes much of the world today, especially in the economic sphere. Should we respond, then, by simply clogging up the Westphalian system? Or maybe we should hope for a re-awakening of the republican spirit within a nationalistic framework? The greatest risk, in our view, of pursuing a course of “national re-nationalization” is that this strategy might inadvertently strengthen reactive, nationalistic, and xenophobic political movements that are already a global force. The question we must ask ourselves, then, is whether or not we have finally come up against the hard limits of the centralized state and the forms of subjectivity this system produces. And if this is the case, as we think it is, the final question we must deal with is what specific form of political organization is able to institutionally realize the co-production of the global commons if not the nation-state.