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Public Order and Market Laws

This essay focuses on the erosion of international law in international relations and the undermining of democratic and social standards in the nation states of the First world. The author urges reflection on the ideas and vlaues of civil society as "weapons" in the struggle against "global domination" instead of a military race with the US..The Vietnamese people, the Algerian people and the African people won their wars of liberation...with the idea of emancipation. Translated from the German
Public Order and Market Laws

Social Agreements against the Imperial Order of Neoliberalism

By Monique Chemillier-Gendreau

[This article originally published in: Le Monde diplomatique December 2002 is translated from the German on the World Wide Web,
 http://www.uni-kassel.de/fb10/frieden/themen/Globalisierung/chemillier.]

["World society has entered in a phase of imperialism whose motor is the system of multinational capitalism embracing all states, not one government. Resistance against this created order is not allowed", Monique Chemillier-Gendreau wrote in her December 2002 article in Le Monde diplomatique. Her essay focuses on the erosion of international law in international relations and the undermining of democratic and social standards in the nation states of the First world. She urges reflection on the ideas and values of civil society as "weapons" in the struggle against "global domination" instead of a military race with the US. The following passages from her very stimulating essay focus on a "public order" (Ordre public), a kind of voluntary social contract.]

Must we let things run their course? Shouldn't we strive for European acceptance of military competition and a new bipolar constellation as the only political community that can still raise its voice? No, we have another weapon used much too infrequently, ideas and the values expressed in ideas. The Vietnamese people, the Algerian people and the African people colonized by Portugal did not win their wars of liberation against the West because the balance of power was favorable for them. Rather they won them with the idea of emancipation, the appeal to a new legal norm: the right of self-determination of the people that ended the colonist anthropology.

This method in another form is suitable for resistance against global domination. Unfortunately international law fell into discredit through the UN Security Council and its understanding of international law. The considerable advances realized in formulating rights in the international framework remain inconsequential because they lack instruments conferring authority.

After creating the prerequisites for its unlimited expansion, capitalism cannot endure any corner of the world evading the laws of the market. Exploiters accept in the bargain the suffering of the population where they want to open up important mineral resources as in the Near East or the Caucasus. Everything becomes a commodity, even thought, creativity, the environment, health, the educational system, the person and his or her body. Everything must be marketed, commercialized or commodified.

If a contract is an instrument of freedom among legal subjects, this advantage only exists for partners meeting one another at the same eye level. When negotiated between unequal partners, contracts only increasingly favor exploitation. This can only be counteracted by means of inviolable principles embodying the value system of a certain human community. Material legal values have priority over others, particularly contract rules. A "public order" (Ordre public) - an agreed order of a particular society - is only possible on this basis.

Public order is a term of constitutional law. It is relevant in Europe for transnational contracts since contractual rules may not violate the public order of individual countries. The "public order of direction" and the "public order of protection" should be distinguished. The former implements a certain idea of public interest and general well-being. The latter protects contract partners too weak to defend their interests themselves. (1) However to establish a public order, the group must first be aware that it belongs to a political community. Secondly, the means of establishing the public order are important. These means could be fixed in the laws for the public order. However principles are involved that need not be fixed in writing but are anchored in the collective consciousness. A difficult problem results regarding the principle of democracy.

For example, the concept of public order can be confiscated by repressive forces that reduce public order to public security or certain moral ideas (as in some European democracies). Close attention to the substance of the public order is vital so regressive values are not promoted. The quality of a legal system is just as decisive as the actual freedom of information, the possibility of everyone sharing in the debate about inviolable principles.

A fatal misdevelopment is occurring. The indispensable social structuring on the plane of national societies is being dissolved or annulled. The timid initiatives that existed worldwide after 1945 have died out.

National societies are under the ideological pressure of deregulation. No principled limitation is possible for the market or freedom of contract as the market's lever. The European left has lost more and more ground because they cannot convincingly counteract this development. Countries of the Third world cannot preserve their social unity. Although condemned to ruin on account of their weak initial positions, they allow the opening of their markets. What is left of public service is being dismantled everywhere. The idea of public interest presupposed by a living active democracy is undermined in the name of questionable transactions.

As another example, the insatiable French banks in the small print demand an extra payment for verifying the genuineness of their customers' checks. They are legally obligated anyway to verifying genuineness. (2) Paying to fulfill legal regulations undermines the term public order. According to this motto, lecturers could press their students for money guaranteeing their observance of examination rules. Everyone could ask his or her neighbor for cash for the promise not to do harm.

While public order is increasingly dissolving in national societies, public order is by no means being established in the globalized society. Here the principle "a contract is a contract" is in effect for international agreements where the weaker countries have no negotiating possibilities and for economic- and trade agreements between businesses and states. The idea of a law set over the contract is not unknown. This idea is codified in generally binding law. (3) Since this law stands above all other legal rules, all contracts contradicting this law become invalid. The praxis appears different. No contract granting financial, territorial, military or police advantages to the superpowers was ever threatened with annulment regardless of the consequences for people. The contradiction between contracts and the iron laws protecting basic rights is not recognized. Thus the law in its core remains inter-subjective, the result of relations between states in which the weakest are defenseless because the objective, universally valid regulations that could lend a meaning to the global society are powerless.

The 1945 United Nations Charter was designed as a blueprint for a global legal system. Despite its contractual character, the UN Charter has a universal claim of authority confirmed by the wide acknowledgment of the states. The Charter itself has a fundamental character insofar as the obligations have a priority before all other international agreements (Article 103). Unfortunately the Security Council doesn't respect the Charter and prevents the formation of a "public order" legitimated by the UN. The tug-of-war around Iraq resolution 1441 from November 6 demonstrated this.

No interpretation of this resolution can make a legally reliable mission of collective security policy out of the announced war. The right to warfare is not allowed individual states under any circumstances. From the beginning to the end, the Security Council alone is responsible for collective security in an authorized military operation (Article 46, UN Charter). The imperial order appears again when a state carries out military operations by referring to its own security and the security of its allies.

(... )

We must help in the breakthrough of the universal public interest. The universal public interest should be the highest standard for the use of force and the limits of the market. Two prerequisites are necessary. Firstly, we need a theoretical study on the term universal public interest as the center of the project of global democracy that may not be confiscated by an undemocratic organ like the UN Security Council. Secondly, international justiciability must be strengthened. All cases come to the Security Council when the heavily armed nations use their power position without regard to protecting the population and cases where the mechanisms of the market are suspected of causing grave human rights violations. In other words, the Security Council in its necessary reformation must be put under a democratic trustee. The authority of the international civil court and criminal court should be generally acknowledged. These would be first steps on the way to an international public order (Ordre public), a public order able to stop the imperial order.

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