Human Rights, State Sovereignty, and International Law: An Interview

20 Sep

[Prefatory Note: The interview below conducted by my friend, journalist and author C.J. Polychroniou was initially published in the Global Policy Journal, on 11 September 2018, the 17thanniversary of the World Trade Center attacks and the 45thanniversary of the Pinochet coup in Chile that assassinated the elected president of the country Salvador Allende. Had I been asked, I might have commented on the fateful linkage between those two catastrophic events, both giving rise to massive suffering, with the earlier violent and sinister event enjoying the encouragement and possibly participation of the Washington deep state. The text printed below has been slightly modified for style]

 

 

Human Rights, State Sovereignty, and International Law: An Interview

We live in an era where virtually every government on the planet claims to pay allegiance to human rights and respect for international law. Yet, violations of human rights and plain human decency continue to occur with disturbing frequency in many parts of the world, including many allegedly “democratic” countries such as the United States, Russia, and Israel. Indeed, Donald Trump’s immigration policy, Putin’s systematic repression of dissidents, and Israel’s abominable treatment of Palestinians seem to make a mockery of the principle of human rights. Is this because of “faulty” forms of government or because of some Inherent tension between state sovereignty and human rights? And what about the international regime of human rights? How effective is it in protecting human rights?

  1. J. Polychroniou: Richard, you taught International Law and International Affairs at Princeton University for nearly half a century. How has international law changed from the time you started out as a young scholar to the present?

Richard Falk: You pose an interesting question that I have not previously thought about, yet just asking it makes me realize that this was a serious oversight on my part. When I started thinking on my own about the role and relevance of international law during my early teaching experience in the mid-1950s, I was naively optimistic about the future, and without being very self-aware, I now understand that I assumed a moral trajectory that made the future work out to be an improvement on the past and present, that there is ebb and flow, but overall a record of moral progress in collective behavior, including at the level of relations among sovereign states. I thought of the expanding role of international law as a major instrument for advancing progress toward a peaceful and equitable world, and endeavored in my writing to encourage the U.S. Government to align its foreign policy with international law, arguing, I suppose in a liberal vein, that such alignment would promote a better future for all while at the same time being beneficial for the United States, especially given the overriding interest in avoiding World War III.

 

My views gradually evolved in more critical and nuanced directions. As my interests turned toward the dynamics of decolonization, I came to appreciate that international law had been employed to legitimize European colonialism, including the exploitative economic arrangements that were imposed on many countries in the global south, whether or not they were colonies. I realized that the idealistic identification of international law with peace and justice was misleading, and at most only half of the story. International law was generated by powerful governments and economic elites to serve their overlapping interests, and was respected only so long as the vital interests of these dominant states were not being encroached upon.

 

The Vietnam War further influenced me to adopt a more cautious view of international law, and even more so, of the United Nations. I opposed the war at its outset from the perspective of international law, citing the most basic prohibitions on intervention in the internal affairs of sovereign states and the core prohibition of the UIN Charter against all recourses to aggressive or non-defensive force. I did find it useful to put the debate on Vietnam policy in a legal format as the country was then under the sway of liberal leadership supposedly responsive to such considerations, but even back then subject to the logic of Cold War geopolitics and its silent partner, global capitalism. The defenders of Vietnam policy, seemingly motivated by Cold War considerations, relied on legal apologetics as well as claims that it was important for world order to contain the expansion of Communist influence throughout Asia, and that the real adversary in Vietnam was China rather than North Vietnam. The legal debate to which I devoted energy for ten years convinced me that international law on war/peace issues was opportunistically subordinated to geopolitics, including by the Western democracies, and besides, legal counter-arguments were always available to governments eager to invoke law to disguise their reliance on geopolitical priorities, especially in the realm of war/peace. In comparison, international law remains useful, effective, and even necessary for many routine transnational activities of people and governments, stabilizing trade and investment relations, but often in ways that favor the rich and influential, meaning that issues pertaining to such questions as maritime safety, international communications, and global tourism exhibit a surprisingly consistent adherence to an international law framework.

 

The U.S. global leadership role is unique in this respect in the period since 1945. In the early postwar period the U.S. seemed to be the champion of a law-regulated world order responsive to the UN Charter framework. This was never an accurate portrayal of American foreign policy as the Cold War prompted a variety of unlawful interventions after World War II, including assassination plots against foreign leaders perceived as leftists. After the Vietnam War the United States Government gradually quietly seemed to recognize that its foreign policy goals could not be achieved by relying on an international law approach, a recognition that became especially clear in carrying out its unconditional political commitment to support Israel however defiant of international norms and UN authority. The moves away from liberal internationalism accelerated during the conservative and nationalistic presidency of Ronald Reagan who was instinctively opposed to adapting American policy to an international law framework.

 

It was during the presidency of George W. Bush that international law was been further marginalized by being put aside or crudely reinterpreted whenever seen as an obstacle to a preferred course of action. The United States started spiraling out of control after the 9/11 attacks in the direction of redefining itself an illiberal democracy, a process reaching new heights during the Trump presidency when even the democratic foundational principles of the republic were increasingly drawn into question. This dynamic of mindless lawlessness has been reinforced by the global rise of ultra-nationalist political movements led by demagogic figures that have gained control of important governments throughout the world. For these movements, nationalist goals are always be given precedence without a second thought about legal or moral consequences. From these rightest perspectives international law should not be allowed to interfere with fidelity to a nationalist agenda. At the same time, the pressures exerted by migratory flows stemming from war torn regions, especially the Middle East and Africa, and from ecologically challenged habitats, have weakened mainstream support for human rights, and especially for those who seek relief by claiming a status of refugee or asylum seeker. Despite neoliberal globalization, and in some respects, as a reaction to it, the state system has become more statist than ever, with a corresponding retreat in humanitarian efforts to protect the human rights of vulnerable peoples, especially if they are regarded as strangers to the ethnic and religious community of a particular nation state.

 

In making this negative assessment, it is important not to overlook the central relevance of international law and human rights to civil society movements for peace, justice, and ecological sustainability. These normative sources of authority give peoples a legitimated discourse by which to oppose oppressive tendencies of the state or international institutions, and to project images of alternative futures that are more benevolent from the perspective of promoting a more satisfying shared destiny for the peoples of the world, with a special emphasis on protecting those who are most vulnerable. It is civil society that has tried to keep the humanside of human rights as integral to the protective mission of law, while governments are again limiting their view of rights to the rightsside as, at most, an entitlement of a national citizenry, especially those who are native born, and even here there is notable slippage by way of surveillance and meta-data scrutiny directed at the internal population.         

 

Q: Human rights are the cornerstone underpinning the rule of law, yet many governments throughout the world violate human rights with frightening frequency. Is there an inherent tension human rights and state sovereignty? Or, to phrase the question differently, do human rights challenge state sovereignty?

A: I believe the premise of your question is somewhat misleading. It may be appropriate to suggest that human rightsshould become the cornerstone of a global rule of law, and that it does function internally in this manner in a genuine democratic state. In international society the basis of an effective rule of law is mutual self-interest and reciprocity especially in the context of commercial and financial arrangemenst, maritime safety, and diplomatic relations. When the Universal Declaration of Human Rights (1948) (UDHR) was drafted, largely under the influence of Western liberal internationalist values, shortly after World War II it was looked upon as a largely aspirational document with non-existent expectations with respect to compliance or implementation. This was partly signaled by labeling the document as a Declaration,which meant that it was without obligatory force. It has been my view that the UDHR would not have won widespread support from leading government had it been negotiated as a lawmaking treaty with the effect of eroding sovereign rights. In this sense, compliance with the norms contained in the UDHR depends on what I have called in the past voluntary international law.In effect, international human rights standards were brought into being only because they were understood to be unenforceable, but this initial cynicism was challenged over time by a series of unanticipated developments.

Several factors altered these low expectations in ways that have given a weak obligatory status to some norms encompassed by the international law of human rights. For one thing, human rights NGOs emerged such as Amnesty International and Human Rights Watch. These civil society actors adopted as their mission campaigns to exert pressure by way of naming and shaming to induce compliance with human rights standards by governments. For another, the West found it useful to claim for itself democratic practices relating to human rights that were allegedly absent or deficient in the Soviet Union and East Europe, drawing a propaganda contrast between the free worldand the Soviet blocthat was centered on degrees of adherence to human rights in the liberal sense of individual rights in the political domain. Thus human rights became a valuable propaganda tool to convey what distinguished Cold War adversaries from one another in a self-serving manner. The Soviet Union countered Western allegations by claiming that human rights should be conceived more collectively in relation to societies as a whole and with an awareness of class differences, and thus emphasized adherence to economic and social rights as beneficial for the entire citizenry. This ideological difference, combined with the push for obligatory standards in international law, led to the artificial division of human rights into two parts, and their formulation in two separate treaties: Convention on Civil and Political Rights (1966) and Convention of Economic, Social and Cultural Rights (1966). As might have been anticipated, the Western countries give their entire emphasis to civil and political rights, and deny any obligatory force to economic, social, and cultural rights, which are derided as unenforceable and inconsistent with the workings of market economies that sort out winners from losers without efforts to protect those who are victimized by market forces.

 

Against this background two important international developments lent practical political significance to these conceptual issues. First, the efforts of the countries in East Europe to gain freedom from Soviet rule, led to movements of resistance organized around demands for adherence to human rights by the institutions of the state. Secondly, the UN-backed Anti-Apartheid Campaign illustrated that human rights, if widely backed on a global level, can be a formidable instrument of soft power resistance to an oppressive regime of the sort that governed apartheid South Africa. In such contexts, international law and human rights played important roles in struggles by people against repressive conditions, and deserve appreciation by progressives who are otherwise dismissive of hypocritical legalism and moralism as the means by which the rich and powerful hide their reliance on naked power to achieve their selfish ends.

 

These developments suggest the emergence of human rights, but not yet its global acceptance as enforceable law. Particularly over the course of this century human rights have been under intense pressure from a number of sources. First came the American response to the 9/11 attacks in 2001 that produced a counterterrorist campaign that subjected suspects to torture and indefinite detention without charges or trial. Then came the migration and refugee crises that exerted pressures on various states to close their borders, despite the life-threatening denials of human rights entailed. Finally, came the rise of autocratic leaders who relied on scapegoats and fear-mongering to justify disregard of rights by governmental institutions, especially of all residents who lacked the panoply of credentials relevant to nationality and citizenship.

 

We can work toward a world in which there is a global rule of law that embodies human rights, but such a world does not now exist, and to be fair, never existed. Sovereignty based on territorial boundaries and international recognition, and given emotional content by nationalist and patrioteering ideologies, have all along tended to override human rights concerns whenever the two sources of authority clash. Despite the use of the word humanthe real perception of human rightsremains dependent for implementation on national procedures of implementation, which has meant national bias and selectivity.

 

Q: How does Donald Trump’s immigration policy square with human rights and international law?

A: Trumps behavior on immigration issues proceeds as if international humanitarian law doesnt exist, or at least doesnt count. His approach to Muslim potential immigrants or undocumented Hispanics living in the United States displays a monumental indifference and lack of empathy to whether such an identity should be respected and protected. Trumps sole criterion claims to be whether or not it is good for America with a pragmatic and selective approach to law enforcement (useful with respect to undocumented immigrants) and a total disregard for the values and norms of human rights. Overall, Trump has exhibited contempt for international law treaties that were considered when negotiated as major breakthroughs contributing to peace, security, and a sustainable environment. Among his most notable repudiations of law-oriented approaches to difficult international issues were his withdrawal from 2014 Climate Change Agreement, repudiation of the 2015 Nuclear Program (5 +1) Agreement with Iran, and refusal to take part in international efforts to develop a humane and collective approach to problems arising from global migration and refugee flows. Trumps ultra-nationalist and Islamophobic political agenda is self-consciously and deliberately insensitive to claims advanced on the basis of international law or simple morality. It is a view that accords preferences to geopolitical opportunism in all sectors of international life that give unreserved support to nationalist priorities while arrogantly refusing to take into account considerations of legality or of moral and political legitimacy.

 

Q: Ever since it’s creation as a nation-state, Israel has shown an absolutely brutal face towards the Palestinian people. Why is the so-called international community allowing Israel to continue with its inhumane stance towards the Palestinians?

A: I think the fundamental explanation for this long experience of Israeli oppressive practices and policies with respect to the Palestinian people flows directly from the essential nature of the Zionist project to establish an exclusivist Jewish state in a predominantly non-Jewish society, and to do so during the long twilight of European colonialism. This reality was further shaped by the Zionist insistence on seeking to be a legitimate modern secular state that respects human rights and formally operates as a constitutional democracy. Such Zionist goals meant that to be Jewish and to be democratic led directly to the forcible dispossession of as many as 750,000 non-Jewish residents of Palestine in 1947 in events differentially remembered by the Palestinians as the Nakba, or great catastrophe,and by the Israelis as the War of Independence. My point is that ethnic cleansing was embedded in the establishment of a majoritarian and exclusivist Jewish state from the moment that the  Israel came into being as a sovereign state, which was dubiously admitted to the United Nations. This insistence on being an exclusivist Jewish state was always embedded in the Zionist Project, but it was not acknowledged nor revealed until the passage of the Israel Nation State Law of the Jewish People a few months ago. This law removes any ambiguity, converting the de facto realities of an apartheid state into a self-proclaimed de jure framework.

 

There is a further issue of great importance. The idea of self-determination gained prominence during the period after World War II, gaining momentum as a result of a series of anti-colonial struggles involving countries throughout Asia and Africa. The Palestinian people could not be expected to submit to the Zionist Project without doing all in their power by way of resistance, and archival research has conclusively demonstrated that Palestinian resistance was anticipated by early Zionist leaders. These prospects and realities of resistance generated Israeli responses designed not just to uphold security, but to crush Palestinian hopes and lead to Palestinian submission to an acceptance of what was made to appear to be a lost cause.

The supposed Trump deal of the centuryis a geopolitical reinforcement of Israeli efforts to compel the Palestinians to accept an Israeli victory, and to content themselves with some improvements in the economics of everyday life attainable only under Israels political and cultural domination. Again, the cycle of resistance and repression is mutually reinforcing, and can be expected to continue until Israel is forced by pressure to recalculate its interests so as to reach a political compromise capable of producing sustainable peace based on the equality of the two peoples. This is what happened in South Africa, coming upon the world as a great surprise. It came about as a result of mounting worldwide soft power pressures that led the political leadership to accept the dismantling of the apartheid regime in the country as a lesser of evils. Until Israels political leaders reach such a point, there will be escalating patterns of Palestinian resistance, reinforced by international solidarity initiatives, giving way to interludes of intensified Israeli repression, and on and on, a vicious cycle seemingly without end, but one that will at some point yield to Palestinian pressures.

 

Of course, in the background until recently, was the relevance of the Jewish diaspora as creating a geopolitical situation that shielded Israel from efforts to implement either UN majority views on how to resolve the conflict or to exert inter-governmental pressures on Israel by way of sanctions. Zionism is a non-territorial world movement with a territorial base in Israel since 1948. With Trump in the White House Israel is assured of unlimited political support for its policies of brutality against the Palestinian people as well as for the realization of its maximal territorial ambitions. This development is accentuated by the broader developments in the Middle East that have led to a convergence of primary interests of Arab governments with the regional policies of Israel, which has meant a weakening of regional and international governmentalsupport for the Palestinian national struggle. The failure of the Palestinian movement to achieve political unity contributes further to the current ordeal being daily experienced by the Palestinian people as the excessive Israeli violence at the Gaza border in response to a largely nonviolent protest movement has recently demonstrated so dramatically in weekly killings and massive casualties that has gone on for many months.

 

 

Q: Numerous artists withdrew recently their participation from a music festival in Israel, apparently under pressure from the Boycott, Divestment, and Sanctions (BDS) movement. Given that Israel is not facing the sort of international isolation that apartheid South Africa begun to face years before it’s collapse, is BDS of any concrete benefit to the Palestinian people, or merely a plain irritation for the Israeli government?

 

The growing impact of the BDS Campaign is a sign that global solidarity movement of support for the achievement of Palestinian basic rights is gaining political traction throughout the world. With the UN unable to implement its numerous resolutions based on upholding Palestinian rights under international law and the Oslo peace diplomacyabandoned after falling into a condition of disrepute, civil society has both the opportunity and responsibility to play a central role in creating the preconditions for a peaceful settlement of the conflict in a manner that recognizes the rights and equality of Jews and non-Jews. BDS is the spearhead of this form of coercive nonviolent efforts to obtain compliance with basic requirements of law and morality. It should be kept in mind that BDS was not an internationalist venture, but formed in response to a call for solidarity more than a decade ago by a large number of NGOs based in Palestinians and has continued to be led by Palestinians.

The frantic efforts of Israel and its supporters around the world to criminalize participation in BDS seems an over-reaction to the effectiveness of BDS as a tactic of opposition and a challenge to the legitimacy of Israel as an exclusivist or apartheid Jewish state. Such moves to defame BDS supporters and even to criminalize participation is posing a serious danger to free expression in the West, including at universities. It should be appreciated that BDS tactics are entirely nonviolent, although admittedly militant with a coercive intention, and based on transnational civil society enforcementinitiatives in settings where the institutions and procedures of global governance are unable or unwilling to protect the rights of vulnerable peoples. If such forms of free expression are suppressed it is a huge setback for democratic governance, as well as creating a dangerous precedent for the future.

 

The pronounced efforts to brand BDS as anti-Semiticis particularly regressive and unfortunate. By this insistence in defining anti-Semitism as embracing harsh criticism of Israel it directly challenges freedom of expression and weakens the capacity of society to promote social and economic justice. Besides this, by conflating criticism of Israel with hatred of Jews, Zionist opportunism is confusing the nature of anti-Semitism in ways that obscure real threats of ethnic hatred, which is as unacceptable to BDS supporters as it is to BDS attackers. The definitions of what sometimes called the new anti-Semitismby the U.S. State Department and by the British Labour Party are illustrative of this unfortunate trend.

 

At the same time it is important to appreciate the potential leverage exerted by the BDS campaign. Roger Waters, co-founder of Pink Floyd, recently called cultural and sports boycotts of Israel by world class artists and celebrity athletes as a game changer.He had in mind at the time the singer Lana Del Ray who had just withdrawn from scheduled concert appearances in Israel and the star Argentinian footballer, Lionel Messi, who captained the national team that cancelled a friendlywith Israel prior to the Moscow World Cup. Waters explains his animating motivation with these words tied to the wider struggle for human dignity:

“And as I say often on stage, when we all got together in 1948 in Paris, and the Universal Declaration of Human Rights was signed by the then-fledgling United Nations, it declares that all human beings all over the world, irrespective of their religion, ethnicity, or nationality, have a natural right to basic civil and human rights, and to the right of self-determination. And I believe that to be true. So this struggle is really only an attempt to implement those brave words from 1948.”

 

The long victimization of the Palestinian people is a stark reminder that the original undertaking to promote human rights in 1948 remains an almost invisible distant goal. In praising those who support boycotts Waters declared that it is simply “the right thing to do.” In so declaring he was explicitly invoking Archbishop Tutu’s influential remark that ‘neutrality in the face of injustice’ is morally unacceptable.

 

It is helpful to remember that most of the positive changes with respect to law and morality generally start on city streets with expression of outrage directed at prevailing policies. This was true of the civil rights movement in America, of the protests against Communist rule in Eastern Europe, of the Arab Spring, of the struggles for gay rights, and indeed it is descriptive of every notable positive development that has occurred during my lifetime. Yet one should not get carried away. We should not, however, uncritically glamorize movements from below. Fascism was responsive to populist frustrations giving rise to demagogues who stir crowds to frenzy with their demonic solutions to the ills of society, and most ominously, we such patterns presently gaining political ground in many countries. 

 

 

Q: You served for many years as United Nations Special Rapporteur for Palestinian Human Rights. What has been the role of the UN towards the so-called Israeli-Palestinian conflict, and where does international law stand over this matter?

 

My experience at the UN as Special Rapporteur helped me understand why the UN is important, yet extremely limited in its capacity to affect behavior due to its lack of independent political capabilities needed to implement its recommendations. This gap between capabilities and expectations was particularly apparent in relation to the Palestinian issue. In both the Human Rights Council in Geneva and the General Assembly in New York, the Palestinian struggle to achieve their rights was supported rhetorically by an overwhelming majority of states, yet it was opposed by important geopolitical actors, especially the United States. In concrete terms this UN majority was able to insist on fact finding inquiries into allegations of Israeli wrongdoing and to release reports extremely critical of Israels behavior, but the Organization was blocked as soon as it tried to implement any recommendations that would challenge Israels policies and practices. Such outcomes on the level of behavior give rise to impressions of UN irrelevance that are as misleading as are excessive reliance on the UN, as now constituted, to serve as a reliable vehicle for achieving the values of peace, global justice, and ecological stability.

 

In a positive manner, the UN was a crucial authority with respect to validating Palestinian grievances, and helped Palestine in its effort to win the Legitimacy War with Israel, which is important. Legitimacy Wars are foughtto get the upper hand with world public opinion by appealing to international law and international morality. In the early period of Israels existence, with the cloud of liberal guilt associated with the Holocaust still shaping political consciousness, the wrongs done to the Palestinian people were virtually erased from awareness in the West. In recent years, the soft power balance has been shifting in Palestines favor just as the hard power balance is more weighted in Israels favor than ever before. It should be appreciated that most political struggles relating to self-determination during the last century were won in the end by the side that won the Legitimacy War, and not the side with military superiority. This observation applies not only to the wars against European colonialism, but it also relates to many of the American regime-changing interventions as well as most graphically to the Vietnam War in which the U.S. exerted military dominance and yet lost the political struggle at the root of the conflict in the end. Explaining this apparent paradox would loosen the hold of militarism on the political imagination in this century.

 

Another aspect of my experience as a UN appointee, although not a UN civil servant as the position was voluntary and unpaid, was a bewildering mixture of independence and defamation. Even the Secretary General insulted me on more than one occasion but admitted that he lacked the authority to dismiss me. Only the Human Rights Council could do this if a majority of member states found that I exceeded my mandate. Throughout my tenure at the UN the HRC overwhelmingly supported my efforts as Special Rapporteur. At the same time, ultra-Zionist NGOs, UN Watch and NGO Monitor, were free to roam the halls, and release all sorts of defamatory material about me without losing their accreditation at the UN, and even having an unseemly leverage with several pro-Israeli governments, prompting diplomats representing the U.S., UK, and Canada to echo their attacks almost word for word.

 

My position at the UN was tricky in unexpected other respects, with pitfalls that I discovered only in the course of my experience. Perhaps, most significantly, I came to realize that the Palestinian Authority (PA), which represents Palestine at the UN and originally backed my appointment, pushed hard behind the scenes in my first years in the position to have me dismissed by the HRC, and further put me for awhile under rather intense pressure to resign. I only began to understand this when it became clear that the PA seemed to put greater stress on their rivalry with Hamas than with their struggle for Palestinian self-determination, and as well, were somewhat compromised by their quasi-collaborative relationship with Israel, especially with respect to West Bank security arrangements and access to international aid cash flows. What irritated the PA was my effort to present the role of Hamas fairly, especially as it related to developments in Gaza, and the initiatives taken by Hamas leaders to negotiate a long-term ceasefire with Israel. With the passage of time I did work out live and let live workable arrangements with the PA who were ably represented in Geneva and New York by Palestinian diplomats who were dedicated to achieving Palestinian self-determination but believed their effectiveness depended upon accepting UN constraints associated with an acceptance of the reality that it is the U.S. that calls the shots on many issues of concern to Palestine. In other words, I learned to be less judgmental without giving ground on my essential effort to discern and report the truth as I perceived it.

 

Finally, I was forced to accept the fact that although I did my best for six years to express the realities of the Palestinian situation, focusing on the denial of basic rights under international law, including the inescapable relevance of continuous unlawful Israeli encroachments on occupied Palestinian by settlements, the wall, disrupting mobility, and numerous other measures, the Palestinian situation on the ground got worse and worse with the passage of each year. Israel never adhered to international law treaty arrangements that obliged UN members to cooperate with the UN in the discharge of its official undertakings. When I tried to enter Israel at the end of 2008 on an official mission trip, I was expelled and detained in a prison cell for more than 16 hours. Despite this, the UN was itself timid and intimidated,  unwilling to mount a public protest or to secure my access throughout my term.

 

What I did achieve as SR was to facilitate some shifts in the public discourse on the Palestinian struggle within the UN itself and in relation to the NGO community and the attentive media. It became more possible to speak of settler colonialismin relation to the Zionist Project of establishing a Jewish state with the blessings of British Foreign Office in 1917 although the Jewish population of Palestine at the time was less than 6% and to use annexationwith reference to the expansion of the settlements established in violation of international humanitarian law governing belligerent occupation and even to refer to apartheidas the essential character of the manner in which Israel maintained control over the deliberately fragmented Palestinian people. It was these assessments that exerted enough influence to help explain the personal attacks on me as an anti-Semite and political extremist. It also led me to have very positive relations with many of the delegations representing countries supportive of Palestine and to receive private reassurances of support and even admiration from high-ranking UN staff members.

 

Q: If state sovereignty and international protection of human rights are incompatible, what is the way out of this conundrum?

 A: There are two obvious paths to achieve greater degrees of compatibility. The first path would involve stronger regional and global mechanisms to promote compliance with fundamental human rights standards. In a UN context this would require a major reform unlikely to take place in the foreseeable future, the elimination of the right of veto enjoyed by the five permanent members of the UN Security Council or at least an agreed renunciation of the veto in situations involving human rights as distinct from peace and security. In effect, this would lead to a weakening of geopolitical leverage within the UN and a corresponding strengthening of the Rule of Law, and more generally, of international law. Since such developments, although morally desirable, are implausible given the present political realities of international life, the best current hope to promote compatibility from withoutmay be at the regional level where shared values and interests are greater and geopolitical interference less pronounced. This regional option seems more available, for example, in Latin America than East Asia, although in the face of the global rise of autocratic patterns of national governance, the prospects for regional implementation of human rights standards are also not currently very bright.

 

The second path to compatibility is via stronger efforts at national implementation. Such a possibility seemed more realistic at times when constitutional democracy seemed the wave of the future. Now with the tide turning in autocratic and ultra-nationalistic directions the resistance to any domestic imposition of international standards seems doubtful if they clash with national policies and practices. To the extent that national political systems embody human rights standards as a matter of national policy the issue of compatibility is minimized, and in such circumstances there are few real tensions associated with the assertion of sovereign rights and national autonomy. When security crises, as in the aftermath of the 9/11 attacks, push leaders to take expedient measures in the name of counterterrorism, then as was the case in the United States, even torture becomes legalizedon the national level, and international treaty commitments to the contrary are ignored.

As the former High Commissioner for Human Rights, Prince Zeid Raad al Hussein declared in a speech at the observance of the 25thanniversary of the UN Conference on Human Rights and Development held in Vienna, human rights are experiencing a retreat across many fronts at the present time with few signs of any significant countervailing moves. The illiberal state, which almost everywhere is replacing the liberal state, no longer as a matter of course embraces humane values, with the weakening of a human rights as a result. To the extent that there continue to exist a robust constituency for human rights it is situated in civil society, and its transnational initiatives. In this regard, I would view the BDS Campaign in support of Palestinian grievances as essentially a popular movement dedicated to achieving basic human rights for a long oppressed people.

 

 

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24 Responses to “Human Rights, State Sovereignty, and International Law: An Interview”

  1. ray032 September 20, 2018 at 7:20 am #

    Richard, another insightful article.

    It’s the perfect segue to post the latest article on related issues also posted to my Blog September 13.
    It was written by Jonathan Cook from Nazareth I’ve referenced many Times on your Blog.
    I renamed it ‘STATE OF THE WORLD’ adding the pictures I thought complement his script.
    https://ray032.com/2018/09/13/state-of-the-world/

    Jonathan saw it only Yesterday and sent this email, “many thanks, ray. you’ve done a great job of illustrating the piece. i really appreciate it. all best, jonathan.”

    His message reminded me of your article, ‘WARFARE WITHOUT LIMITS: A DARKENING HUMAN HORIZON’ I posted to my Blog 7 years ago. You expressed the same sentiment then, Jonathan just did,
    Ray:

    I want to hire you as image-selector for my blog! Your selections were great, and enhance whatever value the essay possesses. Your overall website suggests the power of light & enlightenment. I will try to keep better track.

    Richard Falk
    I volunteered the service to you.

    https://ray032.com/2011/08/04/warfare-without-limits-a-darkening-human-horizon/

  2. Fred Skolnik September 20, 2018 at 7:29 am #

    As you have trotted out this mantra, nearly word for word, literally hundreds of times, and simply slid around any challenge to your assertions, the only way to pin you down is one point at a time, so that there will be nowhere for you to hide and you will either have to respond or tacitly acknowledge the fallacy of your argument.

    Why do you condemn Israel as an “exclusivist” state when it is no different from any other national state with a national minority, such as Turkey, for example?

    • ray032 September 20, 2018 at 12:53 pm #

      Of all the Nations, only Israel and the US believe in their own self-proclaimed, delusional, exceptionalism. International Law is for the other lessor Nations to follow, not them.

      • Richard Falk September 20, 2018 at 1:15 pm #

        Agreed as usual. I will check out your visual gifts as soon as I can. Greetings, Ray.

  3. Gene Schulman September 20, 2018 at 7:34 am #

    An excellent overview and analysis, but shows little optimism for betterment of the situation as the world enters another period of fascism. It is possible, like in earlier experiences, world civilization may endure, but it will take a long time in coming, and our generation will probably not live to see it.

  4. Fred Skolnik September 20, 2018 at 11:25 am #

    I understand your silence.

    Second question:

    What country on earth would allow thousands of rockets to be fired at its population centers or a mob of 40,000 rioters to overrun its border with the declared aim of murdering civilians?

    • Richard Falk September 20, 2018 at 1:14 pm #

      You understand nothing whatsoever pertaining to these issues, and what is worse, your
      aim is obviously not to understand, but to insult, shout dowm, and make such absurdly
      exaggerated and partisan assertions as to make any effort at a response both a waste of time and a misleading assumption that you have any interest at all in dialogue.

      • Gene Schulman September 20, 2018 at 1:33 pm #

        Talk about mantras. How many times has our hasbarist friend repeated this statement? None of which is true. Repeating the same thing over and over again will not make it so.

      • ray032 September 20, 2018 at 6:40 pm #

        Albert Einstein is broadly credited with exclaiming “The definition of insanity is doing the same thing over and over again, but expecting different results”

      • Fred Skolnik September 20, 2018 at 1:36 pm #

        You are sputtering again and you are not replying to questions that anyone making your accusations should be prepared to answer. You are avoiding the questions by “characterizing” them instead of answering them.

        Since you are incapable of replying substantively to these very simple questions, I will cease asking them, as I think I’ve made my point.

      • Gene Schulman September 21, 2018 at 4:12 am #

        Thanks, Ray, I wanted to use that same quote, but couldn’t remember the exact phrasing. Insane, indeed.

      • Fred Skolnik September 21, 2018 at 5:08 am #

        Well then, Ray, by that definition you are certainly insane, because all you fulminations against Jews and the State of Israel hasn’t done the Palestinians a bit of good, and that is your intention, isn’t it, or is it just Jew baiting that brings you here?

    • ray032 September 21, 2018 at 9:50 am #

      No Fred. I’m here in appreciation of Professor’s Falk’s knowledge, experience and character. He is Jewish, don’t you know?

      With your blind/immoral ideology, you would think you are a better Jew than he is.

      You are the perfect example of an Internet troll.

      • ray032 September 21, 2018 at 10:04 am #

        And an afterthought to my last comment addressed to you.

        Attacking the Professor as you do constantly, it’s probably just Professional jealousy on your part.

        The Professor is invited to address more significant World bodies and Organizations at his age than you are.

      • Richard Falk September 21, 2018 at 1:23 pm #

        Thanks, Ray, for your decency and support, as well as your clarity about Fred..

      • Fred Skolnik September 22, 2018 at 1:28 pm #

        No? So you’re not here on behalf of the Palestinians after all, are you, Ray.

        Maybe it does have something to do with Jews then. Remember those little digs about Jewish “venality” and “worship of the gods of gold and silver,” about Jewish “arrogance and superiority complexes” and even about the unfavorable genetic makeup of the Jews:

        “Looking what the descendents of the Patriarchs are doing Today, it must be part of the genetic makeup of the Chosen People.

        “When the Patriarchs of the original tribes of Israel saw the “Promised Land” for the 1st time 3800 years ago, the Jewish scriptures show them as being lying deceivers, murderers and thieves. That trait seems to be lingering these days.”

        And this, Prof. Falk, is the “clarity” you are praising.

      • ray032 September 22, 2018 at 4:41 pm #

        Fred, you are so lost in your delusions. What I cite comes from the Jewish scriptures in the Tanach, Genesis, chapter 34. That’s Jewish history that offends you?

  5. Fred Skolnik September 20, 2018 at 9:40 pm #

    I can almost agree that censorship is the best solution for you, because either you don’t understand the logic of your own arguments or lack the courage to state them plainly and certainly do not wish to see others doing it for you.

    The logic of your arguments is that (a) since Israel should not have been established in the first place, any act of war or aggression against it is permissible and justifiable; and b) when you aren’t strong enough to overcome an enemy militarily, it is permissible and legitimate to murder civilians.

    That’s it in a nutshell, glossed over with cheap rhetorical tricks and tortured double-talk.

    • ray032 September 21, 2018 at 3:55 am #

      As to your point b) it is Israel murdering Palestinian civilians the World is beginning to see, as you remain in your ideological/moral blindness.

  6. Fred Skolnik September 21, 2018 at 5:50 am #

    And regarding your pretensios about conducting a “dialogue,” you aren’t even capable of characterizing your own blogsite with any degree of honesty. The only element of “dialogue” that exists here consists of a succession of slanderous remarks about Israel by your worshipful admirers, and occasionally about Jews as well, and you congratulating them on their “insights.”

  7. ray032 September 21, 2018 at 3:20 pm #

    Related to the themes you see from your unique perspective, as a Canadian, I informed the following people what I see as a dangerous possibility in the US the way things are going.

    Fwd: The Camp David Accord- The Deal of the Century

    Good Day Senator Warren,

    As you prepare to do battle for the Mid-terms and 2020, I would hope you have the Political Courage to raise the issues brought to the attention of Presidents Carter and Obama in the message below.

    Peace

    Ray Joseph Cormier,
    Ottawa-Hull, CanaDa

    ———- Original Message ———-
    From: ray ray
    To: info
    Date: September 17, 2018 at 10:55 AM
    Subject: The Camp David Accord- The Deal of the Century

    Dear President Carter,

    I was so pleased to hear you on Morning Joe Today. As I live my 75th year, it was an inspiration to me, to hear you speak so coherently on the scripted questions, and at your advanced age, have the presence of mind to remember the Palestinians, in the brief Time the MSM gave you.

    I would have liked to know your thoughts on the Trump Peace Plan, cutting off all financial aid to Palestinians, including financial support to the 3 Hospitals in East Jerusalem serving Palestinians?
    So much for the Trump Administration previously saying a Peace deal cannot be imposed from the outside.
    That brings Armageddon closer, Revelation 16:13-16 tells us is the Devil’s work, not God’s Will.

    I can only hope your reflections, both the good, and mistakes that taught you a lesson, are being filmed for posterity.

    In these critical Times, God willing and giving you the strength, I would like to see you having more Public exposure than MSNBC gave you, on what you see unfolding in the US and the World these Days, whether in person, or in many interviews that get air Time.

    Peace. God Bless you. Live Long and Prosper!

    Ray Joseph Cormier

    Ottawa-Hull, CanaDa.

    p.s. I sent this message to President Obama last Monday. I hope you see what I see possible.

    President Obama.

    As a Canadian, I was very happy when you were elected President. I saw that as a hopeful Sign for America and the World.

    You didn’t campaign to inherit the Global Financial Meltdown-Economic Pearl Harbour that happened even before you were elected, in the last months of 8 years of Republicanomics of more to the rich, and fighting Foreign Wars on Credit.
    The Trump Republican Tax Bill they spin as ‘Reform’ is the continuation of those Bush Policies on steroids.

    Watching from CanaDa, the real danger I see, is if there is another Global Financial Collapse due to more US Economic War on more perceived enemies simultaneously than ever before in US history, complemented by tariffs on more US Allies than ever before, Americans will have to pay for all that.

    Removing the few Regulations put in place after the 2008 Global Financial Meltdown-Economic Pearl Harbour to prevent a re-recurrence, the worst possible aspects I would expect you were briefed on at the Time, increases the likelihood what has already happened, could happen again?

    Watching these things, I have to wonder if there is a method to Trump’s madness?

    IF there is a sudden, unexpected Global Financial Meltdown-Economic Pearl Harbour like the last one, in the face of the Social Chaos you were warned in 2008 would happen unless you signed onto TARP, it is President Trump who could invoke the use of the worst provisions in the 2012 National Defence Authorization Act (NDAA) you signed into Law.

    That would make Trump, with 2 years to go, the 1st to use the Legal Authority in that 2012 NDAA to have his Bureaucracy/Military get rid of his ‘opposition’ indefinitely, detaining them in some Gitmo/Gulag, by accusing them of being vaguely associated with terrorism as determined by the Trump bureaucracy, in a Time of Social disorder.
    The right to challenge the government’s ‘suspicion’ in a Court of Law is removed.
    That’s a very real possibility with Trump’s temperament he has already displayed.

    I always admired the High Ideals in your speeches, hoping and praying Americans would take them to heart. But I also saw you didn’t always practice what you preached. On that score, the whole human Race without exception, is guilty.

    I appreciated your Grace in dealing with a Congress whose Republican Leaders Declared, even before you were sworn in, their sole goal was to destroy your Presidency, and I saw they did everything within their power to do that.
    I hate seeing the Republican hypocrisy/duplicity now that the Pendulum has swung to the other side.

    My deepest personal disappointment in you is, as a Constitutional Scholar, you did not VETO the 2012 NDAA even in the face of the overwhelming VETO-proof majorities in both Houses of Congress.
    At least, you would have started the Real Debate on American Democracy.
    Russians didn’t pass the 2012 NDAA, American Leaders did, long before Trump appeared on the scene.

    Now that you have entered the Current Political debate, you can still redeem yourself, admitting you made a mistake signing the 2012 NDAA.

    Peace and God Bless you!

    Maybe Obama is mulling over the letter? He hasn’t been reported doing anything in Public that I have seen since my message via the embedded email on his Website https://barackobama.com/contact/

  8. Beau Oolayforos September 22, 2018 at 10:26 am #

    Dear Professor Falk,

    As far as conflating criticism of Israeli policy with anti-Semitism, I hope it won’t be thought inappropriate, overly-sentimental… to remember Uri Avnery…RIP.

    To the thugs trying to criminalize BDS: we’ve got a little thing in these USA…it’s called the Bill of Rights:)

    • ray032 September 22, 2018 at 12:09 pm #

      Beau, seems you didn’t read what was in the 2012 National Defence Authorization Act (NDAA) in my message to President Obama upstream?

      I read about Obama signing it into Law in December and posted this less than 2 weeks later.

      END OF FREEDOM AND DEMOCRACY
      January 11, 2012
      https://ray032.com/2012/01/11/end-of-freedom-and-democracy/

    • Fred Skolnik September 22, 2018 at 12:50 pm #

      I think the thugs are the BDS supporters who try to break up events supporting Israel.

      As for “conflating,” the language is always the giveaway. As I’ve written:

      “Criticism of Israel is by no means the same thing as Jew hatred. One need only look at the language of the anti-Israel blogs to understand the difference. What should be clear is that Israel would not be hated by these people if it wasn’t Jewish. If Israel was an Arab country and the Palestinians were indigenous non-Muslim Sudanese, let us say, and you had the same conflict and the same occupation and the same “ethnic cleansing,” hardly an eyebrow would be raised.

      “The phenomenon of Israel hatred thus has less to do with the Palestinians as victims than with Israel (and America) as culprits. The will to criminalize and delegitimize Israel has bred an army of blog crawlers who spend their days combing the Internet for incriminating evidence which they then cut and paste or “reference” in their vicious comments on anti-Israel blogs like Richard Falk’s or Mondoweiss. Remove Israel and America from the equation and these people couldn’t care less how many Arabs or Africans or Asians or Slavs are slaughtered in local wars. As Norman Mailer once noted, two blacks in the ring just don’t do it for fight fans, but when a white boy goes up against a black boy, the juices really start flowing. Israel hatred is of course a little more complex than ringside hysteria. When Americans take sides in foreign conflicts, you can be sure there is a lot going on under the surface.”

      http://twinenterprises.com/the_fear_of_monkeys/issue_twentyeight/choosing_sides.htm

      Prove that I’m wrong. Show us a comment of yours anywhere on the Internet about Arabs or Africans or Asians or Slavs slaughtered in local wars. Show us what you’ve had to say about the genocides in Darfur, Rwanda, Nigeria or anywhere else in the world where you weren’t trying to criminalize Israel or America.

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