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Summary : In August 2019, about the fire devastating the Amazon, the French Minister of Ecology says that this fact "is not just the business of a state" (n'est pas que l'affaire d'un Etat). This assertion denies the postulates of Public International Iaw (I). This supposes a new system, based on the idea that the power of the State on its territory is erased when the object that is there is no longer related to this "part" but to the All that is Universe (II). Let's accept the augur. First question: if it is not only the case of a State, whose business is it? (III). Second question: to anticipate the other cases that fall under this regime, what should be the criteria in the name of which the All will have to prevail over the part and who will then take care of the case of which the "local" State is divested? (IV). Because the perspective goes beyond the environment, beyond Brazil, beyond the States. It leads to Compliance Law animated by "monumental goals" that are the concern for the Universe and humans, in a humanist spirit. Let's go.
On August 27, 2019, on the French radio France Inter, Elisabeth Borne, French Minister of Ecology (Transition écologique) expresses it clearly: "Quand on est sur un enjeu tel que l'Amazonie, ça n'est pas que l'affaire d'un État", that can be translated : "When we are on a stake such as the Amazon, it is not only the business of one State ".
Starting from one case, "the Amazon", the Minister, thus taking up the position of the French President, associates a general consequence: "it is not only the affair of one State".
This is not a trivial sentence.
This affirmation denies, and why not, the entire system of Public International Law (I). By a new reasoning based on the idea that the All prevails, as by an effect of nature, on the Part (II).
Admitting this, it leads to opening two sets of questions. The first is related to the following main question: if it is not only the case of one State, of which is this the concern (III)? The second set of questions revolves around the questioning of the criteria on behalf of which other cases must be seized in the name of "All " and how to do it (IV).
A. The postulate of Public (and Private) International Law: parties (States) which, because of common interests, are in contact
The notion of State includes in its very definition the notion of territory (a territory, a population, institutions).
Thus the State governs through its institutions what is happening on its territory. For example, if there is a fire, or a risk of fire, the State makes arrangements through all legal, financial, technical and human instruments available to it. It is accountable for what it does through its political and legal responsibility.
When what is happening on its territory exceeds this one, in fact (epidemic, catastrophe with the consequences exceeding the borders, migrations, etc.) either according to its own opinion or according to that of the other States, the States, being sovereign subjects of Law in the international system, act together on a pre-built legal basis: bilateral or/and multilateral treaties!footnote-1675, having created legal integrated zones (like the European Union or the United States) or international institutions (like the IMF).
A particular technique has been developed for several millennia - but here again the seniority is not sufficient to keep the system: diplomacy, anchored in each state in a particular ministry: the Ministry of Foreign Affairs, which each national government has. If one State totally excludes one phenomenon in the territory of another, the progressive procedure of ceasing diplomatic ties begins.
This can result in wars.
In the "case of the Amazon" both the President of Brazil and the President of the United States stick to the classical construction of Law.
Indeed, the former asserted that the Amazon is in the territory of Brazil, thus falls under the jurisdiction of the power of the Brazilian State and the Brazilian Law, from which it follows that another State does not have to come to interfere. However, the French President takes the floor not as this forest extends also on a French territory but as it is the business of the World. On the contrary, the President of Brazil claims the closing effect, which excludes a third State from taking over directly something - even a difficulty - that takes place in the territory of another.
The President of the US federal State has said that these are joint decisions between the President of Brazil and other heads of State, sovereign subjects of Law, who must agree to organize a solution to solve a local problem . Because in the same way that States can declare war, they can help each other!footnote-1676.
The whole Public (and Private) International Law is therefore based on this assumption: "parts" of the world, on which sovereign parties (States) have taken contact, because circumstances make something that falls within one of them or several others.
This is precisely what is called into question. The notion of the "right of interference", whose evocation we hardly hear any more, had already done so. But on another basis.
B. The "right of interference": idea that somebody can directly interfere with what happens in a country , an idea that does not question the postulate of the International Maw, an idea that rests on something else: a " right for the other "
The "right of interference" is the idea that in certain territories, things happen that are inadmissible.
In memory of the jus cogens, a kind of "Natural Law" of Public International Law, Another, that could be another state, can come to meddle with what is happening in a territory that is closed, without declaring war. to the state that keeps its borders.
It is the need of others, for example those who die in mass on this territory, or the nature that is devastated in the indifference of the State on whose soil the disaster is happening, which founds this "right" of another state to come and take charge.
The foundation of this "right" is therefore a "duty".
C. The new idea: a territory is only part of the Globe, whose fate is everyone's concern
The idea is new because it is not based on altruism. And no more about self-interest. Yet, de facto and de jure , the Amazon is not on the sole territory of Brazil.
France is particularly well placed to say something about it since part of the Amazon is on French territory.
Thus the inaction of the main concerned Brazil directly affects the interest of France, a "forest" being a block that can not be divided. If we were in Property Law, we would say that we are in indivision with Brazil and that in this respect, with the other States on whose territories this forest extends, a solution must be found.
Because of the indivisibility of this particular object which is this particular fores!footnote-1644, it is necessary that the States whose territory is concerned have a say in the matter.
But this is not the argument put forward by France, particularly by the President of the Republic.
It is said that the whole world is concerned about the fate of the Amazon. It could be said that, in this respect, when what could be described as a "global forest" is well treated, its management does indeed fall within the power of Brazil, Brazilian companies and the Brazilian State, but when it is abused to the point of seeing its future compromised, when fires may make it disappear, then this forest appears not to be localized in Brazil but being located in the World, of which Brazil is only a part!footnote-1648.
This reasoning, which then gives voice to everyone, for in the world every state is included in it, is a new reasoning.
The economic-political theory of the "commons" does not account for it because it is not a very legal theory!footnote-1656.
II. THE NEW REASONING THAT COVERS THE CLASSIC REASONING OF PUBLIC INTERNATIONAL LAW
The new reasoning adopted by the Minister consists in saying that the Amazon does not concern only Brazil. This forest should therefore be directly related to the World (A). This is a welcome change in the system but based on a paradox (B).
A. When the Amazon is in danger of death, then it should no longer be attached to this part of the World that is Brazil, but directly to the World
This forest is presented as the "lung" of the planet, it is the "future" of humanity. In this, it can concern only one State, not even the one on whose territory this "Humanity good" is located!footnote-1643.
As such, without the need to declare war to Brazil, another State may speak, for example the French State through the one that represents it in the international order, that is to say its President, to say what to do, since according to him the President of Brazil does not say or do what it is absolutely necessary to do for the whole planet and for the future of Humanity.
This induces a complete renewal of international institutions.
Indeed a direct attachment to the World and no longer to Brazil gives the forest object a special status because of a goal that exceeds Brazil: save the Amazon would impose because it would save the world. Therefore, it can no longer be the subject of Brazil, which would be like "dispossessed" by a goal that is imposed on it: to save the Amazon rainforest, even though it is mainly on its territory, while other States become legitimate to dispose of this object, even if the forest would not be in part in their territory, even if they would not be affected in their own interests.
This contradicts all Public International Law!footnote-1645; because the agreement of the political representatives of Brazil is no longer required and no one yet evokes the need to declare war to Brazil, and fortunately!
Such an upheaval justifies that such an affirmation is accepted with difficulty. One understands better than first consequence, which is not so innocuous, one of the first rules of diplomacy which is the politeness, between the heads of state, with regard to the spouses of these , have be broken!footnote-1657, that the remarks have slipped on personal questions, etc.
B. A welcome but paradoxical change in the system
Why not change the system?
This is difficult to admit, not only because it is brutal, but because it is paradoxical.
The paradox is the following. It is recognized that the theme of the disappearance of borders by "globalization"!footnote-1647 no longer reproduces the reality of facts!footnote-1646, especially not the Chinese situation, the digitalization having on the contrary allowed the construction of even stronger boundaries. What we called "globalization" now belongs to the pastWhat we called "globalization" now belongs to the past!footnote-1660. So today we should recognize on one side the reality of borders - which had not disappeared or are reborn - but only to better step over them, since - based on the concern of the world - states, yet each in their borders, would be legitimate to go directly to intervene in the business of others.
The paradox is therefore, on the one hand, the rejection of the allegation of a de facto disappearance of borders by an economic interdependence, technology having denied "globalization" as a fact !footnote-1649 and the linked resurgence of borders allowing States to affirm more than ever that they would be "sovereign masters at home", which should logically lead to let Brazil decide for the Amazon, while yet on the other side we witness the questioning of the postulate of Public International Law as recognition of sovereignty and construction from agreements between states, requiring the agreement of the state whose territory is concerned (except war), questioning which leads to allow all to meddle with the fate of the Amazon, as if there was no border.
This paradox leads to two questions.
The first question is: if "it's not juste one State affair", who's concerned?
The second question is: after the "case of the Amazon", what are the other cases? And how are we going to provide solutions, if we no longer have the solutions of Public International Law, that is to say, the agreement of the country whose territory is concerned and which we do not want not go to war?
If we have clear ideas on the answers to be given to these two sets of questions, then because indeed when the future of all is in progress it can not be the affair of a single State, it is necessary to question Public International Law. But do we have clear ideas on these two questions? And what are the possibilities for possible solutions?
See the text following below.
III. FIRST SERIES OF QUESTIONS: IF IT IS NOT ONLY ONE ISSUE FOR ONE STATE, IS IT FOR WHOM?
If we admit the change of system, the first series of questions that opens is to know who has the Amazon for case to resolve if it is not that of Brazil alone? If one breaks down this question, it leads to designate the one that one could call the one who is "able juridically to worry about it", and therefore to decide something about it. For example, who can give money? The other States, and only them? (A). If one finds those who are legally able to act, is the action only about giving money? (A)
A. Who can give money? Only other legal subjects of Public International Law?
Leonardo DiCaprio felt it was his concern, since he said he was giving money, so presuming someone was going to receive it. Then, he "allied" with Will Smith to sell shoes for the benefit of the forest. Legally, they have moreover and more precisely facilitated the sale of these by the notoriety of their names, the profit of the sale going to the benefit of the Amazon. Will Smith said he was "concerned" with the Amazon and eager to save it. They assume that the money they bring or have brought will find a donee. In law, this is not obvious.
This is no doubt why the President of Brazil reminded that for a donation to be made, it is necessary not only a donor but a donee, because a donation is not a unilateral act, but a contract. To the extent that the forests does not have legal personality, nor do they have as a consequence the capacity to receive money, it is the Brazilian State to receive this gift, acceptance that the Brazilian head of state refused to formulate..
In the theory of the "right of interference", because it is the expression of a "duty for others"!footnote-1658, duty of which it is not necessary for a State to be the holder. Therefore, not only a celebrity but also a wealthy person, an anonymous, a collective, an association ; we remember that Médecins sans Frontières, is a private entity precisely "without borders"), had acted on the basis of this right.
So there is no legal or national structure? (in this case, Brazilian), nor international? (which, the UN?), to validate a kind of receivability of donations.
B. Can one just give money to the Amazon?
Demonstrations of protest, which are other sort of legal act, have been organized.
To say that one does not agree against the behavior (inertia is an action) of a government, even if one is a national of another country, is an action.
Events of this kind have multiplied, often driven by a local initiatives but with a pretension and a global effect. This is the case with "strikes for the climate", for example from 20 to 27 September 2019. This is described by some as a "global climate strike", even though it is actually made up of local events, but it is its global "pretention"!footnote-1662 which justifies this metonymy, that is to say, to take the "Part" (the goal: the global goal of theses local events) for the "All" (thus qualifying the whole of the strike as "global". The notion of a "climate strike" is new and spectacular, and it is legally very strange since it is classically necessary to be "inside" to strike, whereas here people are outside Brazil and act. This phenomenon, which refers to the legal conception since we move from the protest march to the legal concept of "strike", but a kind of "strike for the outside", a "strike for others"!footnote-1661 shows that legal borders explode because physical boundaries have come back, because globalization is dead!footnote-1663.
But can we go further, without the Brazilian Government now being able to say anything?
For example by bringing water, equipment? bringing people, experienced or not, controlled or not? at their entrance and during their presence or not?
IV. SECOND SERIES OF QUESTIONS: AFTER THE "AMAZON CASE", WHAT ARE THE CRITERIA FOR SEIZING OTHER CASES FOR WHICH "ALL" MUST PREVAIL ON "PART"?
If one admits the change of system, the second series of questions that opens depends again on the strength of the analogies. In the same way that we could move from one State to another, can we move from one case to another, because dramas like the current fire are meant to offer our eyes terrified and sorry (A). Because we can't be satisfied to go from drama to drama, from case to case, except to abandon the Law to the sole emotion, we must find general and abstract criteria to leave the "Part to go the "All", to detect in this case what justifies in the particular case of this forest its attachment to Globality: the fact that it is a systemic object (B). The Amazon, "global forest", then shows through its only example what should be released as an abstract criterion of an attachment to the All: a systemic nature. This justifies not only that this systemic concern is borne by another State, but even more importantly, that it be internalized by companies in a position to provide solutions, by the technique of Compliance Law (C).
A. The drama of the Amazon is not a unique drama: so many other "fires" ...
Social networks have been invaded by images of gigantic forest fires taking place in countries on the African continent.
The underlying discourse is twofold:
First, it is to ask that the world windfall also falls on these countries, presented as being in distress as the Amazon (what we do not know, especially because of the photos-montages to about the Amazon).
Then, it is a question of showing that if we do this for the Amazon, by removing from the Brazilian government its power to exclude, a power to which we often associate sovereigntyfootnote-1674, then we must also do it for a series of other countries, ravaged by ecological dramas. If we do not want to take charge of "all the misery of the world, but take our part" as Michel Rocard said because we don't claim to be the Masters of the World, then what to do since identical dramas take place elsewhere and above all will take place in the future ?
Will it then be necessary to take the place of the governments, to contradict them, to thwart them, without making war on them? While, case by case, we will go from identical cases (forests burning) to similar cases (rivers overflowing, children diying).
The difficulty is then conceptual and methodical: because the fire isn't the sole drama of Humanity.
B. The drama of the Amazon is not a unique drama: so many other dramas of Humanity and the need to specify the abstract criteria in which the necessary external intervention is also possible
The fire is terrible. Massive death of animals. Loss of the river of the sky. Sustainable ecological imbalance.
But what about the drought, which causes deaths and migrations in situ, which in turn causes deaths and imbalances in other States?
And what about massive and contagious diseases, at a time when old diseases eradicated reappear? Diseases that by nature are spreading.
Certainly for the moment the Public International Law has worked, because the government of the particular country concerned by the particular tragedy has accepted the aid offered by the other countries in bilateral or multilateral organizations. Except that the country concerned is in a situation of war, like Syria, but that configuration is also foreseen by Public International Law.
For the moment, countries which are not at war and which participate, according to the rule of law, in the international order continue to accept the aid mechanisms. The profit they have allows to keep the postulates of this Law. The degradation of Public International Law could lead to the fear of a retraction of certain States, preferring their isolation to their interest and the interest of their population, in a misunderstanding of what sovereignty is. We are not there yet.
But analogies leading to the departure from public international law, as we propose to do for the Amazon, can be constructed for example about the sale of human beings, against which, despite the existence of some treaties, Public International Law is weak.
Exceeding Public International Law for anything else could then be done, either to have less than it (action of illiberal political systems), or to have more than it (action of llegal systems concerned with Humanity, whose first example comes to be given about the Amazon).
The second perspective is daring, but is not it induced by the first, catastrophic?
The question is then to know for how many situations no longer identical but for which the analogy is easy to establish, the same reasoning can be constructed: the territory in question is only a part of All that is the Globe and Humanity.
Thus, from case to case, the exceptional reasoning "part / All", which reverses the bases of Public International Law may become the principle.
It is therefore necessary to define the abstract conditions in which it can enter into force.
An Indian chief from the Amazon, Chief Roani insisted on September 2, 2019 on the fact that it was necessary to "do something" not only independently of the Brazilian political power but also "against" this one because the Amazonian forest is a "critical issue".
However, the notion of cruciality is a legal concept known and controlled in Regulatory Law and Compliance Law, key concept that should be repeated and developed.
C. Abstract Criteria for organizing the prevalence of the All on the Part
The abstract criteria for making the All prevail on the Part implies that the envisaged situation is thought in systemic terms (1). This leads to superimposing on Public International Law the Compliance Law whose purpose is the concern for Humanity, which should also be developed (2).
1. Thinking en systemic terms
When we take up the Law of Regulation in its report not to the principle of Competition but in its relation to the systemic risk!footnote-1650, we observe that operators (like "systemic banks" or "crucial operators") are are bound by rules that go beyond the borders because negative events what can happen to them would crumble the systems if the negative event considered happened.
As such, the bankruptcy of a systemic bank and the incident that makes a forest disappear on the balance of which the climate and the rain rest are of the same nature. Both are future events constituting excluded future disasters, for which comprehensive risk prevention must be established. If they happen, because supervision has failed, the management of the crisis does not only concern the country in which the systemic object is placed.
The Amazon rainforest is systemic.
As is happening in the digital world!footnote-1651, as has long been the case in banking, it is necessary to establish supranational lists of systemic and supersystemic objects. With, as in banking, objects targeted by the States in whose territory they are situated and a general substantial criterion determining the objects which the world can not do without, except to accept a global catastrophe (which is the general definition of "negative goal" of the systemic perspective!footnote-1651).
These mechanisms work well in the banking, financial and audiovisual sectors, only because there are supervisory authorities. This allows to organize the Ex Ante, which avoids the disaster, which distinguishes the Supervision Law of the Regulation Law and even more of the Competition Law!footnote-1653.
However, for the moment, such Supervisory Authorities do not exist.
But as finance grows greener and greener, the Compliance Law itself takes care of the environmental concern and introduces it into the "crucial global banking and financial operators", which is controlled by the supervisors of these Companies in their Ex Ante structures, it is possible that by the Law of Supervision and Banking and Financial Compliance Law, then of Compliance in International Trade Law, we obtain a result in Ex Ante efficiency. Since it is a question of preventing and not a question of sanctioning. Without the need to build a specific supranational authority. Not that we can not dream about a such institution, but we will say that the political circumstances are not actually very conducive.
2. Superimposing on Public International Law a Compliance Law aimed at the concern for Humanity
If Public International Law and multilateralism are still important (agreements between the Sovereign Parties that are the States in the international order), especially diplomacy (continuous relations between these Sovereign Parties, superimposed on the relations with the ordinary entities), this approach, based on Regulation, Supervision and Compliance, must be added to the States and their multilateral relations.
Moreover, jurisdictions must give full effect to the will of States, articulating these actions of private operators with long-term political actions.
In the same way that Compliance Law allows the States to internalize their "monumental goals" in the crucial enterprises "!footnote-1654 (for example saving the planet, by making it possible through the concretization of the concern of the Amazon corresponds to this case of figure), international courts must be able to intervene.
Because there are no effective and legitimate legal systems without a judge. In his absence, the doctrine concludes that there is still no "world legal order".
Many States welcome this when it allows them to effectively escape their international obligations, the WTO having found an effective way only by setting up a regressive and archaic system of relaliation, private justice for the benefit of the State whose the claim is recognized as legitimate by the panel of the Dispute Settlement Body of this international organization.
But in the cases that concern us, it's not about Ex Post sanctions, taking many years. What would be required would be not only the decisions implemented by the State concerned but also jurisdictional decisions adopted quickly, by a mechanism similar to that of the interim measures, according to a strict criterion of urgency, the obviousness and the irrefutable perspective of imminent harm.
This World judge does not exist.
So it is towards an internationalization in the "crucial enterprises" by "Law of the Compliance" whose concern for Humanity!footnote-1655 which animates some States, that it is necessary to go, effective legal method , superimposed on a legitimate Public International Law in which must continue to believe. This is the meaning of Emmanuel Macron's intervention at the UN General Assembly on September 24, 2019.
Indeed, Compliance Law is a substantially new Law and not just a methodology, even less a mechanical process!footnote-1666. It is substantially new because it has for "monumental goal"!footnote-1667 Humanity, which is a legal "invention"!footnote-1668, and the "Person", which is also a "legal invention"!footnote-1668.
After the Second World War, the appalling disaster led to the conclusion that the time for truly inventions, that is conceptual inventions was closed!footnote-1664. As there is a dimension in the invention of concepts including legal ones!footnote-1669, Art and Law expressing by the creation the resistance to the events!footnote-1670, one could take note of the disappearance of these acts of creation!footnote-1672, this is to say of resistance. But now that the time of calamities plunges us back into disarray!footnote-1671, the moment of conceptual inventions comes from necessity. Compliance Law, in that it is substantially humanistic!footnote-1673, fixing as "monumental goal" the concretization of the protection of the All, of Humanity and of the Person, is emerging.