Tag Archives: international law

Respecting International Law: A Practical Argument

20 Feb

[Prefatory Note: International law, as so much else of value, has fallen on hard times,

violated and ignored, where applicable and needed. Although this is a deplorable state of affairs as the planet burns and vulnerable people suffer from ecological hazards and predatory geopolitics, it is the time to heighten struggle, and not sit home in despair. This essay in a slightly modified form was written at the request of Fikir Turu, an online source of commentary operating from Turkey, and published in Turkish. An English version was also published in Transcend Media Service, TMS, 17 February 2020.] 

 

Respecting International Law: A Practical Argument

International law disappoints in so many ways, making it easy to overlook why, despite its flaws, it remains valuable and indeed vital for human wellbeing. I put here to one side its usefulness for managing the touristic, trade and investment, maritime, and networking dimensions of international and transnational life, which most of us take for granted until something goes wrong. And I also take note of the inability of international law to fulfill the hopes of idealists who suppose that law on its own can banish war or ensure that international disputes are resolved by applying law rather than through power leveraging. If we are attentive to current events, as the media reports war/peace issues we would quickly conclude that invoking international law in these high profile settings is to be out of touch with how sovereign states go about pursuing their most important economic and political interests, which in areas touching on security is by trusting their military capabilities and alliance relations, and not by believing that as long as their actions and policies stay on the right side of the law, they have nothing to worry about.

 

Against such a background, my assessment suggests that international law is more relevant even in war/peace settings than what the men who still make most of the big foreign policy decisions realize. A major point here is a reflection of the global turn toward governments led by anti-democratic political figures who gained power by winning free elections. The voting public in many leading countries seems ready to support governments that do away with civil liberties, the protection of basic human rights, and even move to subvert the independence of the judiciary and legislative branches of government. Some of the policies of such autocratic leaders violate fundamental norms of international law as when a minority is persecuted by ethnic cleansing or genocidal policies, or in more limited ways by denying rights of free expression to dissenting voices in the media, among opposition leaders in and out of government, and at universities.

 

In such circumstances, it remains useful for supporters of true freedom to be able to appeal to international law as an authoritative yardstick by which to assess the government behavior alleged as being abusive. In this regard, the recourse of Gambia to the International Court of Justice to challenge the genocide of the Rohingya by the government of Myanmar. Similarly, the current effort of Palestine to persuade the International Criminal Court to investigate alleged crimes against humanity committed by Israel against the Palestinian people is illustrative of the political significance of international law even if unable to regulate the offending behavior. These are both high profile instances of apparent international crimes that could otherwise be hidden behind the heavy curtain of national sovereignty. The guidelines of international law are crucial in raising the voices of public opinion and even some government on such issues of moral salience in an effective manner, and essential to gain access to international institutions in some circumstances of state crime so as to challenge, and at least document, criminality in an influential manner.

 

By pointing out such options, it is not meant to suggest that the leadership in Myanmar or Israel will necessarily repudiate their past policies, or alter their abusive behavior. What is achieved is some lessening of legitimacy, and this may matter enough to moderate and deter, if not transform behavior. More liberally inclined governments may be less likely to enter favorable relationships or agree to participate in cultural or sporting events with gross offenders of human rights and basic legal norms. These kinds of subtle acknowledgements of wrongdoing do have an impact, although rarely acknowledged, until some momentous change unexpectedly takes place, as for example when South African apartheid submitted to international pressure and dismantled apartheid. An interesting legal example occurred back in the 1980s when the United States was mining the harbors of Nicaragua to exert unlawful pressures on a Marxist-oriented government in control of this tiny country. The Nicaraguan Government could not hope to challenge by force American policies that seemed to violate the rule of international law that condemned all uses of international force other than in carefully defined instances of self-defense, but it did have recourse to the International Court of Justice due to an obscure treaty that conferred such an option if a dispute between the two governments could not be settled by direct negotiations. The U.S. refused to participate in such a judicial proceeding, but despite this, the World Court in The Hague accepted the case, and a majority of its judges agreed that Nicaragua had a convincing legal grievance, and so declared. The U.S. judge on the highest UN judicial tribunal defended the American policies, and Washington denounced the decision. And yet, a few months later the U.S. stopped mining Nicaragua’s harbors, and in effect, covertly complied with the decision upholding the applicability of international law.

 

Even Myanmar mounts its strongest possible defense by hiring a team of Western international law experts to present its case. Israeli strategists and think tanks warn the government that attacks on the legitimacy of Israel, that is undertakings complaining about its flagrant lawlessness, are bigger threats to Israeli security than is the Palestinian armed struggle. Having law and morality on one’s side has proved a bigger overall asset in violent political conflicts since 1945 than dominating the battlefield. The United States lost the war in Vietnam during the 1960s despite controlling the conventional military dimensions of the conflict, as did the Soviet Union when it intervened more than a decade later in Afghanistan. The major governments in the world are slow to learn from this kind of failure because militarism is embedded in their governing DNA. This reflects the outmoded faith in military superiority as the principal engine of history as well as the bedrock of national security. What is overlooked is that ever since World War II, people not armies have won the characteristic conflicts of the last 75 years, and their highest aspirations for self-determination and independent political statehood have been aligned with international law. In this sense, large states, as well as small and medium states, would themselves be much better off if their policies in the war/peace and security areas adhered to international law guidelines rather than followed the discretionary dictates and spending priorities of hard power realists. To the extent this assessment of the changed role of power in international relations is correct, China stands out as comprehending the benefits of embracing soft power realism, by way of trade, investment, and clever diplomacy is the manner to expand influence and raise stature in the 21st century. In this fundamental sense, international law, which can be conceived of as aa soft power calculus in relation to the use of force, has an untested potential to guide governments and their citizens toward a peaceful, prosperous, and ecologically sustainable future, but only if militarist myths and military/industrial/media complexes are discarded.

 

International law also provides the weak and vulnerable with a means to build support for their struggles against abusive uses of state power, including finding law-related ways to resist autocratic leaders who rely on regressive ‘lawfare’ to stifle political dissent and suppress freedom of expression. For instance, those victimized can appeal their cases to special rapporteurs of the UN Human Rights Council who can give political visibility, moral/legal credibility, and sometimes exert effective pressure on governments alleged to be violating basic rights. The elected autocrat of the Philippines, Rodrigo Duterte, uses his manipulation of the legislative and judicial branches of government to frame and imprison political opponents and dissenters, while solidarity initiatives respond by invoking international law standards and procedures to challenge such unlawful behavior, in effect, recourse to progressive lawfare tactics.

 

Finally, civil society activism formulates its agendas, and builds its support, by illuminating the lawlessness of governments, especially in relation to geopolitical actors that enjoy effective impunity under international law. There are many such uses of international law, going back to the tribunals on the Vietnam War organized in the late 1960s with the backing of Bertrand Russell, passing legal judgment on the violations of Vietnamese sovereignty by American-led military intervention. Another notable example was the Iraq War Tribunal of 2005 held in Istanbul, bringing together legal experts and moral/cultural personalities to pass judgment on the spurious claims that the U.S./UK military attack and occupation of Iraq were consistent with fundamental norms of international criminal law. Such a legal proceeding did not end the occupation but it strengthened the political will of those who opposed such policies as well as providing a documentary record of geopolitical lawlessness that could not be compiled if an international legal framework did not exist and enjoy the formal endorsement of those states whose behavior was being judged.

 

In the end, we can and should still lament the shortcomings of international law, but if we seek an international order that respects rights and is more peaceful, it is vital to appreciate the present and potential role of international law. It can offer constructive policy guidelines for policymakers and leaders, better aligning foreign policy with national interests given the increasing limits on the utility of military force under contemporary condition. It also allows civil society activism to ground their solidarity initiatives on a foundation of international law rather than on mere political passion, and can serve to deter some governments from pursuing policies that violate international human standards and would likely weaken their reputation as responsible members of world society. The work of some international NGOs, such as Amnesty International and Human Rights Watch, not only depends on the existence of legal standards, but shows that many powerful governments care enough about their reputations at home and abroad to curb their lawlessness if confronted by prospects of exposure. Of course, it would be wrong to expect too much from a reliance on international law in this period when even those states that claim the legitimacy of political democracy are choosing leaderships and adopting policies that defy such values and practices. Many of us are discovering that procedural democracy, as principally expressed by free elections and independent political parties, offers little assurance that the political winners will adhere to the rule of law, that is, the norms and institutional arrangements of substantive democracy, when in positions of political authority. Such disillusionment is accentuated by the growing evidence that such leaders retain their popularity with the citizenry even when they are unscrupulous lawbreakers. And, of course, less political and moral friction is present when the laws being twisted or broken pertain to foreign policy. International law is not reinforced at this point by strong populist expectations of compliance, although rule of law considerations may be invoked when a state is targeted for intervention or sanctions.

 

 

The Decline of International Law: Reflections of a True Believer

27 Jan

[Prefatory Note: This post was initially published on January 27, 2020 in a Turkish online publication, Fikir Turu, and is slightly modified below.]

 

The Decline of International Law

 

There is widespread agreement that international law is experiencing a sharp decline in

relevance when it comes to foreign policy, especially in the eye of the public. At first glance,

this seems surprising. The digital age and economic globalization require more than ever a reliable regulatory framework to enable international transactions of many types. The growing complexity and networked style of international relations would lead most observers to anticipate an increased role for international law, and in many spheres of transnational activity, this has happened. In this respect, the public is somewhat misled when it generalizesits impression of decline to the whole of international.

 

The impression of decline derives from high profile issues of governments acting without regard for international law, especially in the area of peace and security. A recent such example is the drone killing of a leading Iranian general, Qasem Soleimani, while on an apparent diplomatic visit to Baghdad at the invitation of the Iraqi Prime Minister. More revealing, perhaps, is the seeming international disregard of flagrant war crimes by the Assad Government during the civil strife that has brought such mass suffering to the Syrian people since 2011. Also, the genocidal massacres of the Rohingya people in Myanmar or the military coup staged by General Sisi in 2013 against the elected Egyptian government of Mohamed Morsi raised few cries of official protest about such flagrantly unlawful behavior. Even the gruesome murder of Kamal Khashoggi in the Saudi Consulate in Istanbul last year, while bringing tears to the eyes of many, brought no meaningful international response to such an outlandish state crime.  

 

The Trump presidency has reinforced this impression of decline, bordering on irrelevance, by its unilateralism in foreign policy—the 2018 move of the U.S. Embassy to Jerusalem in violation of the UN consensus that the future of the city be determined by negotiations; the legalization of Israeli settlements in the West Bank despite their clear violation of Article 49(6) of the Fourth Geneva Convention and prior Washington policy, the disruptive withdrawal from the from the 2015 Iran Nuclear Agreement (JCPOA) and the Paris Climate Agreement finalized the following year. Overall, global issues that are reported on by the media strengthens this impression that international law is not respected by many governments, and nothing adverse happens to them as a consequence.

 

Yet there is more to international law than this negative impression leads us to believe. The entire fabric of the modern world is dependent on a generally respected international law framework. Without this framework every standard activity from tourism to diplomacy to trade and communications, as well as maritime and commercial air safety, would produce chaos on a grand scale. The reality is that we take most of the international law dimensions of the modern world for granted, never think about it, or if we do, we are grateful for bringing this kind of order into our everyday activities. On a larger scale governments and businesses plan many large-scale long-term operations on the assumption that international law guidelines can be relied upon. In other words, in many spheres of international life, international law is dependable, and is mutually beneficial both for ordinary people and for powerful actors.

 

Yet, the impression of decline is real when it comes to peace and security, human rights, and cooperative global problem-solving for such challenges as climate change and migration. It was not always quite this way. The United States, in particular, but many important countries believed in extending the rule of law as far as possible in international arenas. There was a widespread belief about World War II that a law-governed world order was essential to avoid the disastrous recurrence of major warfare and another economic collapse of the magnitude that brought on the Great Depression of the 1930s. Unregulated nationalism was seen as a severe threat to a peaceful and prosperous future for humanity, including those states with a geopolitical agenda. Even the development of a human rights architecture within the UN embodied the liberal faith that adherence to a common set of legally grounded values, as qualified by civilizational diversity, would be of benefit to the whole of humanity.

 

Yet, there were always major limitations to what could be achieved by a law-oriented approach to world order. Even the UN was framed in such a way that it exempted the most powerful, and generally the most dangerous states, from an obligation to comply with international law, including even the UN Charter. This exemption was signaled to the world by making the five dominant governments in 1945 permanent members of the UN Security Council, and more consequential, conferring on them a right of veto, which was a way of making international law inapplicablewhenever it was really needed to curb the behavior of these large states and their smaller friends who could always be shielded from legal obligations. Such shielding has been long done most spectacularly by the United States in relation to Israel. The best takeaway is that for geopolitical political actors, international law is a matter of convenience, not obligation.

 

There are also issues bearing on the effectiveness of international law that arise from the decentralized nature of world order. States even in the aftermath of a great war that caused widespread forebodings about the future were never willing to entrust the UN with enforcement capabilities. What enforcement occurred was the work of geopolitics, the willingness of large states to intervene for the sake of preventing severe criminality, itself usually instances of dubious legality. Arguably, this was what happened in 1999 when NATO acted to prevent Serbian criminality in Kosovo or when international sanctions were imposed by various countries on South Africa to bring apartheid to an end can be used as examples of extending international law in the face of state sovereignty and through circumventing a geopolitical veto. Yet depending on geopolitics to uphold international law is generally not a good idea. Geopolitical motivations are self-interested, strategically contoured, and ideologically driven, with the language of international law, democracy, and human rights often used as a cover to soften criticism. Over the decades, American sanctions were imposed on Cuba because of its Marxist orientation toward governance while countries with far worse human rights records, such as Guatemala or Chile under Pinochet, were not punished because they were allies. In other contexts, such as the struggle of the people of Tibet, Chechnya, and Kashmir, the costs of confronting China, Russia, and India were deemed impractical, with costs far too high to justify intervention, and to the extent concerns were expressed, it was done by way of hostile propaganda in which the moral message was submerged beneath clouds of partisanship.

 

Yet these structural problems of world order are also not the whole story. World history, which seemed in the struggles against fascism and colonialism and, later, in the collapse of the Soviet Union, to be heading toward greater reliance on international law, the UN, human rights, and the belief that only constitutional democracies were legitimate, but something happened to reverse these trends. What has happened in the 21st century is the rise of authoritarian leadership in virtually every important country on the planet, often by anti-democratic governing processes, but more surprisingly, by electoral choices in functioning constitutional systems such as India, Brazil, Philippines, and the United States, among others. The trend is global, which suggests structural dimensions, but each national narrative reflects particular conditions. Some explanations have stressed populist backlashes against neoliberal globalization and the impact of many dimensions of inequality it has brought about or the related effort to strengthen feelings of national identity and community in the face of migrants or the homogenizing impacts of transnational franchise capitalism. The cumulative effect of these developments is to elevate even the most arbitrary authority of the national leadership beyond any notion of accountability to international rules and institutions, making the perception of decline real, alarming, fostering a nihilistic mood at the very historic moment when constructive cooperative action is desperately needed. Added to these negative features of the present reality,  current prospects for reversing this decline are not favorable seem virtually non-existent.

 

Yet we can take a small comfort in the radical uncertainly of the future in which what is anticipated rarely happens. Less visible contradictory forces are present, mostly below the surface, making despair inappropriate, and calling on all of us to act on and struggle for the future we seek. It is this uncertainty that alone allows us, even mandates us, to be hopeful about the future, and to act as citizen pilgrims seeking a better future for humanity.

Facing the Global Crisis

16 Jan

[Prefatory Note: The post below is a somewhat amplified version of an interview with C. J. Polychroniou, journalist and professor of political economy at West Chester University, which was published on January 7, 2020 in the online journal, Global Policy. As the interview was conducted in December 2019, it fails to address the various disruptive consequences of the assassination of Qasem Soleimani, including the violation of Iraqi sovereignty, Baghdad being the site of the drone attack, as well as the risks of war arising from an escalating tit-for-tat cycle of actions and reactions. Given growing tensions between the interconnectedness of the world and the state-centric character of international law, including contradictions between totalizing and disregarding territorial sovereignty, state-centric world order is being increasingly marginalized by geopolitical behavior that both generates and suppresses transnational political violence. A normative crisis with structural implications exists, and is not even being widely appreciated much less adequately addressed. The continuing disregard of this crisis adds to grave risks of aa catastrophic future for humanity, with severe spillover to the natural surroundings shared with non-human species.]

 

Facing the Global Crisis

 Q1. I want to start this interview on the state of global affairs near the end of the second decade of the 21st century by moving from the abstract to the concrete. To begin with, it’s regarded as axiomatic that the postwar international liberal order is fracturing and that we are at the same time in the midst of a geopolitical transition where the most prominent characteristic seems to be the decline of the United States as a global superpower. With that in mind, can you offer us a panoramic perspective on the contemporary state of global affairs? What do you consider to be the primary changes under way, and the emerging challenges and threats to global peace and stability?

 Response: There are many crosscutting tendencies now evident at the global level. At the very time when globalizing challenges are intensifying, the mechanisms available for regional and global cooperation are becoming dangerously less effective. The failure to address climate change, so clearly in the global public interest, is emblematic of a dysfunctional world order system. This failure can be further delineated by reference to two distinct, yet interrelated developments. The first characterized by a vacuum in global leadership, which reflects both the overall decline of the United States as well as its explicit renunciation of such a role by the Trump presidency. Trump proudly proclaims that his political agenda is exclusively dedicated to the promotion of American national interests, declaring defiantly he was elected president of the United States, and not of the world. The second broader development is the rise of autocrats in almost every important sovereign state, whether by popular will or through imposed rule, resulting in the affirmation of ultra-nationalist approaches to foreign policy, given ideological intensity by chauvinistic and ethnic hostility toward migrants and internal minorities. This kind of exclusionary statism contributes to the emergence of what might be called ‘global Trumpism’ further obstructing global problem-solving, shared solutions to common problems, and global expressions of empathy for human suffering. A discernable effect of these two dimensions of world order is to diminish the relevance and authority of the United Nations and of international law, as well as exhibiting a decline in respect for standards of international human rights and a disturbing indifference to global warming and other global scale challenges, including toward maintaining biodiversity and upholding the stability of major global rainforests.

 

Overall, what has been emerging globally is a reinvigoration of the seventeenth century Westphalian regional system of sovereign states that arose in Europe after more than a century of devastating religious wars, but under vastly different conditions of connectivity that now pose dire threats to maintaining minimum world order and to the wellbeing of peoples throughout the world. Among these differences are the dependence upon responsible internal behavior by governing processes at all levels of social interaction in an era of growing ecological interdependence. The tolerance of fires in the Amazon rainforest by the Brazilian government, supposedly for the sake of economic growth, by indulging the interests of agrobusiness and logging, endangers a vital global source of biodiversity as well as depletes essential carbon capturing capabilities of this vast forest area, yet there is no way under existing international norms to challenge Brazil’s sovereign prerogative to set its own policy agenda, however irresponsible with respect to its own ecological future, as well as that of its region and the world.  

 

At the same time, there has emerged doctrine and technology that defies territorial constraints, and gives rise to contradictory pressures that subvert the traditional capabilities of states to uphold national security on the basis of territorial defense. On the one side, transnational extremism and criminality exposes the symbolic and material vulnerability of the most militarily powerful states as the United States discovered on 9/11 when the World Trade Center and Pentagon were allegedly attacked by a small group of unarmed individuals. Added to this are threats to all people from hacking and surveillance technologies that are not subject to territorial regulation. Responses by way of retaliatory strikes or covert operations directed at the supposed extraterritorial source of these attacks and threats, according to a global mandate associated with counterterrorist warfare and transnational law enforcement generate new patterns of lawlessness in the conduct of international relations. Technological and doctrinal innovations associated with the use of precision guided missiles, cyberspace, and pilotless drones, as well as satellite surveillance are producing new conceptions and experiences of boundaryless war zones. The world is becoming a battlefield for both geopolitical actors and a variety of non-state actors in a series of unresolved transnational struggles and undertakings. Additionally, there are opening new uncertain frontiers for 21st century warfare involving cyber assaults of various kinds, evidently already tested and used by the U.S. and Israel in their efforts to destabilize Iran, as well as new initiatives by a few states to militarize space in ways that seem capable of threatening any society on the face of the planet with instant and total devastation. One salient feature of these developments is the unacknowledged significance of neither adversary being a Westphalian sovereign state as generally understood by international relations theory and practice, while ‘political realism,’ which remains largely unchallenged, is more and more out of touch with these political realities subverting statst world order.

 

Under analogous pressures, the world economy is also fragmenting and seeking a reterritorialization of trade and investment, not only behaviorally but doctrinally. Trump’s transactional mode of operations challenges the rule-governed global system established after World War II, which relied on the Bretton Woods institutions and the World Trade Organization. The economic dimensions of resurgent nationalism also give rise to trade tensions, with real prospects of major trade wars, reminding expert observers of the ‘beggar-thy-neighbor’ atmosphere in the early 1930s that gave rise to the Great Depression. Underneath this reterritorialized approach to political economy seems to be what amounts to a mostly silent revolt against neoliberal globalization, and its encouragement of transnational trade and investments based on market-based opportunities, as guided by the transnational efficiency of capital and openness of national markets rather than the wellbeing of people, including environmental protection. A major source of dissatisfaction with traditional politics in democratic societies seems associated with increasing economic inequality, causing stagnation, or worse, of middle and lower class living standards, while producing incredible accumulations of wealth at the very apex of society. These trends have unleashed an enraged populist assault on establishment institutions, including traditional political parties, being blamed for enriching upper elites while suppressing the wellbeing of almost entire societies, with an astonishing 99% being left behind. In the American setting, the left/right expression of this new classism is reflected in the Trump proto-fascist base and the Sanders mobilization among youth and disaffected constituencies.

 

In this downward global spiral, additional negative factors are associated with poor management of ending the Cold War, and the accompanying collapse of the Soviet Union. I would point to three principal negative impacts: (1) the failure of the United States as triumphant global leader to seize the opportunity during the 1990s to move the world toward greater peace, justice, and prosperity by strengthening the UN, by reallocating resources from defense to civilian infrastructure, and by initiating denuclearization and demilitarizing policies regionally and worldwide; (2) the degree to which the Soviet collapse led to a world economic order without ideological choices for political actors (‘there is no alternative’ mentality). This pushed the logic of capitalism toward the kind of inhumane extremes that had existed in the early stages of the Industrial Revolution. As long as socialism was associated with Soviet leadership it offered an ideological alternative to alienated segments of society, which created strong political incentives in the West to exhibit ethical concerns for human wellbeing, and social protection frameworks moderating the cruelty of minimally regulated market forces; in effect, for its own sake capitalism needed the rivalry with socialism to maintain an ethically acceptable ideological composure; (3) the sudden withdrawal of Soviet balancing influence in several regions of the world, especially the Middle East, led to order-maintaining cycles of oppressive patterns of governance, U.S. regime changing interventions, and political turmoil and prolonged strife causing massive suffering, famine, and devastation.

 

This combination of domestic authoritarianism, transnational conflict configuratons, and state-centric foreign policy is inclining the world toward ecological catastrophe and geopolitical uncertainty, even chaos. This pattern is accentuated by world economic orientations that are oblivious to human and global interests, while slanting national interests toward the ultra-rich. In effect, the political future for formerly leading democratic states is now more accurately described as a mixture of autocracy and plutocracy with fascist overtones of the strong leader and the stereotyping of ‘the other’ as an enemy to be excluded or destroyed.

 

One symptom of these implosive developments is to call attention to the altered role of the United States in this overall conjuncture of historical forces. On the one side, is the reality of U.S. decline, accentuated by the behavior of Trump since 2016 and the rise of China, which reflects the impact of this impulsive and anti-globalist leader and national mood, but also exhibits some longer deeper trends that transcend his demagogic impact. The most important of these is the failure to learn from the reduced effectiveness of military force with respect to the pursuit of foreign policy goals, given changes in the nature of political power and international status, especially in relations between the West and non-West. Costly interventions in Vietnam, Afghanistan, and Iraq have all ended in political failure, despite U.S. military and battlefield dominance and a strong political commitment to the mission. The U.S. reaction has been to reframe tactics rather than to appreciate the enhanced capabilities in the post-colonial world of militarily vulnerable countries to mobilize prolonged and eventually effective resistance to interventions from the West. Such reframing has led to the repetition of failed interventions in new contexts. In this narrow regard, Trump’s seeming repudiation of regime-changing wars was and is more realistic than the Pentagon’s tendency to return to the drawing counterinsurgency and counterterrorist drawing boards to figure out how to do the job better next time.

 

Yet Trump’s militarism is evident in other forms, including seeking to extend military frontiers to outer space, by boasts about investing in producing the most powerful military machine in human history, and by the reckless war-mongering diplomacy toward Iran. In this respect, the U.S. not only is increasing risks of global catastrophe, but also inadvertently helping its international rivals to gain relative economic and diplomatic advantages. A crucial explanation of America’s likely continuing decline results from two refusals: first, a recognition of the neutralization of military power among major states by the mutually destructive character of warfare and secondly, an appreciation of the nature of asymmetric conflicts resulting from the rising capabilities of national resistance frustrating, and generally defeating, what had once been relatively routine and cost-effective colonial and imperial operations.

 

Another source of decline is that the kind of confrontations that existed during the Cold War no longer seems to exert nearly as much influence on security dimensions of world order as previously. Most European states feel less need for the American nuclear umbrella and the safety afforded by close alliance relations, which translates into reduced U.S. influence. This shift can be observed by the degree to which most states currently entrust their defensive security needs to national capabilities, somewhat marginalizing alliances that had been formally identified with U.S. leadership. In this regard, the bipolar and unipolar conceptions of world order have been superseded by both multipolarity and statism in the dynamic restructuring of world order since the collapse of the Soviet Union and the rise of China.

 

The profile of American decline, with respect to the international policy agenda could be rather abruptly altered, if not reversed, by an internationalist post-Trump foreign policy. This would be particularly evident, in all likelihood, with respect to reaffirming cooperative efforts regarding climate change, reviving the 2015 Paris Agreement, and calling for a more obligatory approach to international regulatory arrangements. Of course, a revived American bid for global leadership would be further exhibited by certain foreign policy moves such as seeking balance in addressing Israel/Palestine relations, lifting economic sanctions from such countries as Cuba, Venezuela, and Zimbabwe, renewing adherence to the JCPOA (Nuclear Agreement) with Iran, and urgent calls for strengthening the role and relevance of the United Nations and respect for a global rule of law reconfigured to take account of the transnational features of the digital age with its connectivities and networks joining non-state actors.

 

In a sense, the assessment and contours of American decline, reflective of so many factors, will become clearer after the 2020 elections. If Trump prevails, the decline thesis will be confirmed. If a centrist Democrat, say Biden, prevails, it will likely create a sense of relief internationally, along with a temporary suspension of doubt about the reality of U.S. decline, but will not end the credibility of the longer run decline hypothesis as a Democratic Party president, such as Biden, will not challenge the Pentagon budget or the militarism that underpins American policy for the past 75 years. If, as now seems highly unlikely, the Democrats nominate a progressive candidate, say Sanders or Warren, and (s)he is able to gain enough support in Congress, the trends pointing to further decline might not only be suspended, but possibly reversed. Addressing inequality arising from the plutocratic allocation of benefits resulting from neoliberal globalization and undoing the excessive reliance on military approaches to foreign policy are the only two paths leading to a sustainable renewal of American global leadership and prospects for a benevolent national future.     

 

 

 

Q2. Do you detect any similarities between the current global geopolitical condition and that of the era of imperial rivalries prior to the outbreak of World War I?

 Response: The imperial rivalries, at the root of the stumble into major warfare, were much more overt in the period preceding World War I than is the case today. Now imperial strategies are more disguised by soft power expansionism as is the case with China or geopolitical security arrangements and normative claims as is the American approach, but the possibility of an unwanted escalation in areas of strategic interaction are present, especially in areas surrounding China. Confrontations and crises can be anticipated in coming years, and without skillful diplomacy a war could result that could be more destructive and transformative of world order than was World War I.

 

There is also the possibility of hegemonic rivalry producing a major war in the Middle East, as between Saudi Arabia, Israel, and the United States on one side and Iran and Russia on the other side. The Syrian War prefigured on a national scale such hegemonic rivalry that could now recur on a regional scale. A more optimistic interpretation of developments in the Middle East is to suggest that the stability of the Cold War era might soon reemerge in light of Russian reengagement, which could restore the balance imposed earlier, and seems preferable to the turmoil and confrontations of the last 25 years. It would be prudent to take note of the World War I context to remind political leaders that they risk unwanted sequences of events if promoting aggressive challenges to the established order in regional or global settings. Yet the killing of General Qasem Soleimani in early January 2020 came close to setting off a chain reaction of escalating violent incidents that could have ended in a major war between Iran and the United States of intensity and indefinite scope.

 

Of course, triggering conditions prior to World War I were concentrated in Europe, whereas now it could be argued that the most dangerous situations are either geographically concentrated in the Middle East or in a variety of regional circumstances where coercive diplomacy could trigger an unintended war either  on the Korean Peninsula or in relation to China where interests and ambitions collide in the Western Pacific and South China Sea.

 

Graham Allison has written a widely discussed book, Destined for War: Can America and China Escape the Thucydides Trap?(2017), which argues that throughout history when the dominance of a state is challenged by a rising power a major war has frequently resulted to establish geopolitical ranking. Of course, circumstances have changed drastically since the time of Thucydides, due to the possession of nuclear weapons on both sides, a fact that is likely to encourage geopolitical caution as risks of mutual catastrophe are quite evident. At the same time complacency is not warranted as governments have not changed their reliance on threats and bluffs to achieve their goals, and the possibility of miscalculation is present as antagonisms climb escalation ladders.

 

More broadly, the existence of nuclear weapons, their deployment, and doctrines leading to their use in certain situations create conditions that are very different than what existed in Europe more than a century ago. Yet there is one rather frightening similarity. Threat diplomacy tends to produce conflict spirals that can produce wars based on misperception and miscalculation, as well as accident, rogue behavior, and pathological leadership. In other words, the world as now  constituted, as occurred in 1914, stumble into an unwanted war, and this time with casualties, devastation, and unanticipated side effects occurring on a far greater scale.

 

Finally, there were no serious ecological issues confronting the world in 1914 as there are at present. Any war fought with nuclear weapons can alter the weather for up to ten years in disastrous ways. There is the fear validated by careful scholarly study that ‘a nuclear famine’ could be produced by stagnant clouds of smoke that would deprive the earth of the sunlight needed for agriculture for a period of years. In other words, the consequences of a major war are so much more serious that its avoidance should be a top priority of any responsible leader. Yet, with so many irresponsible leaders, typified by Donald Trump, the rationality of caution and that would seem to prevent large scale war may not be sufficient to avoid its occurrence. Also, the mobilization of resources and the focus of attention on an ongoing war, or even its threat, would be so occupying as almost certainly to preclude efforts, however urgent, to address global warming and other ecological challenges.

 

Q3. Given that the historical conditions and factors that gave rise to Cold War policies and institutions have vanished, what purpose does NATO serve today?

 

Response: Although the conditions that explained the formation and persistence of NATO were overcome by the collapse of the Berlin Wall in 1989, and of the Soviet Union a few years later, NATO remained useful to some of its members for several reasons. For the United States, it kept the U.S. engaged in Europe, and sustained its role as alliance leader. For the major European powers, it represented a security guaranty in the event of a revived Russian threat, and lessened internal pressures to develop expensive European military capabilities that did not depend on American participation. The Kosovo War in 1999 displayed a European consensus to transform NATO into an intra-European peace force, while the Libyan War of 2011 displayed a misleading willingness to manipulate the UN into authorizing NATO to engage in a regime-changing out of area military intervention that not only weakened the legitimacy of the post-Cold War UN and harmed Libya, but also understandably eroded trust in UN procedures on the part of Russia and China that had been persuaded not to oppose a decision at the Security Council for a strictly limited humanitarian intervention but not for NATO sponsored regime change.

 

The NATO alliance should be disbanded in the interest of world peace and stability. Its only real function since 1989 has been to further the geopolitical goals of the United States, and to a lesser extent, France and the UK. The persistence of NATO after its Cold War rationalization was undercut exemplifies the refusal of the West to make the structural adjustments that could have expressed an intention to make a transition from a pre-war environment of strategic confrontation that characterized the Cold War to a post-war atmosphere of dealignment and demilitarization. Had such a transition occurred, or even been attempted, we would now most likely be living in more positive historical circumstances with attention to the real economic, political, and ecological challenges to human wellbeing now and in the future being addressed. We would not need the awakening alarms being set off by a 16 year old Swedish girl!   

 

Q4. Trump’s foreign policy towards the Middle East is unabashedly pro-Israel, while also supportive of Erdogan’s grand vision for Turkey and the Arab world. Can you explain for us this apparent anomaly?

 

Response: It may be intellectually satisfying to give a coherent spin to Trump’s seemingly antagonistic policies in the Middle East, but I feel it conveys a false sense of plan and strategy beyond the play of personality and ad hoc circumstance. The most that can be claimed it that there is a kind of hierarchy in arranging American foreign policies priorities, yet overall, lacking any sense of regional grand strategy. At the top of the Trump policy pyramid seem to be upholding the two ‘special relationships’ with Israel, first, and Saudi Arabia, second. Turkey is somewhat supported because of the seeming personal rapport between Erdogan and Trump, and partly also for reasons of continuity of alignment and economic trade relations. Iran is a perfect regional enemy for the United States, which helps us understand why it have been demonized and subjected to crippling sanctions and war threats for the past 40 years. Iran is antagonistic to Saudi ambitions to assert its regional hegemony and to Israel because of its pro-Palestinian, anti-Zionist stance, and not a trading partner or strategic ally with the United States ever since the revolutionary overthrow of the Shah in 1979. Besides, Iran as the leading Shi’a state in the region is a sectarian foil for the Gulf/Egyptian Sunni affinities. Besides, Trump’s insistence on repudiating Obama’s initiatives in the region led to the American withdrawal from the Nuclear Program Agreement negotiated in 2015 (JCPOA, that is, Joint Comprehensive Program of Action), has led to the collapse of an agreement that seemed a breakthrough for peace at the time. This anti-Iran agenda is being carried forward at considerable risk and expense, as well as producing mass hardship for the Iranian people over a period of many decades.

 

Although Trump campaigned on a pledge of disengagement from senseless regime-changing interventions of the past in the Middle East, especially the attack on and occupation of Iraq since 2003, it has been a difficult policy to implement, especially in relation to Iran, and to some extent Syria. This seems to reflect\ American deep state resistance to all demilitarizing moves in the Middle East for strategic reasons, as well as Trump’s quixotic and ambivalent style of diplomacy.

 

As far as Turkey is concerned, there seems to be some continuity in Erdogan’s foreign policy, which is to support the Palestinian national struggle and to favor democratizing movements from below, especially the Muslim Brotherhood, but to avoid entanglements of the sort that led to a major foreign policy failure in Syria after 2011, and recently, an announced willingness to support the Libyan government against insurgency. Also Turkey has under Erdogan’s leadership supported major institutional reform at the UN by questioning the hold of the permanent members of the Security Council on UN decision-making, typified by the slogan ‘the world is greater than five.’).

 

  Q5. Do you see China as emerging any time in the near future as a global superpower?

 Response: I think China is already a global superpower in some fundamental respects, although not a global leader in the manner of the United States in the period between 1945-2016. Whether it has the political will to play a geopolitical role beyond its East and South Asian nearby regions is difficult to predict. The top Chinese officials seem to sense a dangerous vacuum and inviting opportunity resulting from the withdrawal of the United States from its leadership position. At the same time, the Chinese themselves seem aware of their lack of experience beyond the Asian context outside of the economic sector, are preoccupied with domestic challenges, and are aware that Chinese is not a global language nor the renminbi a global currency. For these reasons, I expect China to stay largely passive, or at most defensive, when it comes to the global geopolitical agenda, and use its considerable leverage to promote multipolarity and restraint in most international venues.

 

At the same time, China’s superpower status can be affirmed in two different fundamental respects: as the only credible adversary of the United States in a major war and as a soft power giant when it comes to spreading its influence beyond its territorial limits by a variety of non-military means, most spectacularly by its Road and Belt Initiative, the largest investment in an integrative undertaking in the world. If soft power status is the best measure of influence in a post-political world order, then China may have already achieved global leadership if history is at the dawn of a new period in which the role of military power and conquest as the principal agent of change is morphing toward obsolescence. Arguably the most telling symptom of American decline is its gross over-investment in military capabilities despite enduring a series of political setbacks in situations where it dominated the battlefield, which when coupled with the failure to address the decaying domestic infrastructure and refusing to fill the gaps of social protection. Perhaps, the Vietnam War is the clearest instance of total military superiority resulting in the loss of a war, but there are other notable instances (Afghanistan, Iraq).

 

 

Q6. If you were asked to provide a radical vision of the world order in the 21st cedntury, what would it look like?

 

Response:This is a difficult assignment. I would offer two sets of response, but with a realization of the radical uncertainty associated with any conjectures about the future of world order. My responses depend on some separation between considerations of policy and of structure. I respond on the basis of my tentative diagnosis of the present reality as posing the first bio-ethical-ecological crisis in world history.

 

With respect to policy, I would emphasize the systemic nature of distinctive present challenges, global in scale and scope. The most severe of these challenges relate to the advent of nuclear weapons, and the related geopolitical policy consensus that has opted for a nonproliferation regime rather than a denuclearizing disarmament alternative. Such a regime contradicts the fundamental principle of world order based on the equality of states, large or small, when it comes to rights and duties under international law. It does, however, reflect adherence to the fundamental norm of geopolitics that is itself embedded in the UN Charter, which acknowledges inequality with respect to rights and duties, evident in other spheres of international life, including accountability for international crimes, as acknowledged by the demeaning phrase, ‘victors’ justice.’

 

To address the challenges to world order that threaten the peoples of the world does not require overcoming political inequality altogether, but it does require attaining two goals that involve radical changes in political behavior: 1) respect for and adherence to international law and the UN Charter by all states, especially the most powerful, which would at least entail national self-discipline and the elimination of the right of veto at the UN, but not necessarily permanent membership in the Security Council; 2) the strengthening of the autonomy of the United Nations in relation to the peace and security agenda by creating an independent funding arrangement based on imposing taxes on transnational travel, military expenditures, and luxury items. The objectives would be to move toward a global organization that was dedicated to the global and human interest as well as to the promotion of national  interests as is now the case, which would depend on vesting implementing authority in the UN Secretary General as well as the acceptance of a degree of demilitarization by current geopolitical actors, with the proclamation of shared goals of making national security unambiguously defensive, and globally regulated in accord with international law.

 

In effect, the policy priorities to be served by such a radical reordering of global relations, shifting authority and power from its present geopolitical nexus to a multiplicity of hubs of influence that sought global justice and ecological sustainability, and were more institutionally situated in global networks and arrangements. In the scheme depicted above it would mean a rather dramatic shift from geopolitical autonomy to a more law-governed world order with the establishment of effective mechanisms to serve the whole of humanity rather than being focused on the wellbeing of its distinct territorial parts. In the process, accompanying social democratic arrangements for trade, investment, and development would need to be adjusted to serve the attainment of basic economic and social rights as implemented by monitoring and regulatory transnational procedures that were also sensitive to ecological sustainability.

 

It hard to imagine such policy and structural modifications taking place without a renewed confidence in democratic, ethically grounded, and generally progressive styles of governance at the national level, protective of vulnerable people, accountable to future generations, as well as acting without total deference to short-term electoral cycles. In other words, the behavioral tendencies and values that are now dominating most political arenas by dangerously myopic approaches to policy and structures of accountability would have to be transformed on the basis of ecological consciousness, respect for human rights and international law, and an international institutional structure oriented around the protection of human and global interests in addition to national rights.

 

There is no plausible political path visible to such a future at present, although there is a growing sense of panic, especially among youth, as recently epitomized by the charismatic impact and impressive insight of Greta Thunberg. What is altogether missing from the present setting are credible sources of revolutionary energy guided by such a vision of a necessary and desirable future, which would entail the rejection of autocratic governance of sovereign states and of apartheid geopolitical regimes (as with nuclear weapons, accountability to international criminal law, and double standards). In effect, a drastic shift from a zero-sum world of destructive rivalry, exploitation, intervention, and political egoism to a win/win world based on the emergence of a sense of global community and ecological unity accompanied by the mechanisms and structures to convert policy directives into behavioral conformity.

 

Remembering the World Court Advisory Opinion on Israel’s Separation Wall After 15 Years

10 Jul

Remembering the World Court Advisory Opinion on Israel’s Separation Wall After 15 Years

 

On July 9, 2004 the International Court of Justice (ICJ) in The Hague issued an Advisory Opinion by a vote of 14-1, with the American judge the lone dissenter, as if there would have been any doubt about such identity even if not disclosed. The decision rendered in response to a question put to it by a General Assembly resolution declared the separation wall unlawful, and that compliance with international law would require it to be dismantled and Palestinian communities and individuals compensated for harm incurred. As with the identity of the dissenting judge, the failure of Israel to comply with the decision was as predictable as the time of tomorrow’s sunrise.

 

Only slightly less anticipated was the American government response, which adopted its customary hegemonic tone, to instruct the parties that such issues should be resolved by politicalnegotiation, which even if heeded would end up as Israel wished, given the hierarchical relationship between Israel as occupier and Palestine as occupied. It doesn’t require a legal education to dismiss the American argument as fatuous at best, cynical at worst. The question put to the ICJ was quintessentially legal, that is, whether the construction of the separation wall on occupied Palestinian territory was or was not consistent with the Fourth Geneva Convention governing belligerent occupation.

 

Although the decision is labeled as an ‘advisory opinion’ it has the authoritative backing of a fully reasoned and documented consensus of the world’s most distinguished jurists as to the requirements of international law in relation to the construction of this 700km wall, 85% of which is situated on occupied Palestinian territory. The degree of authoritativeness of the legal analysis is enhanced by the one-sidedness of the decision. It is rare for a legal controversy before the ICJ to produce such near unanimity given the diversity of legal systems of the 15 judges and considering the civilizational and ideological differences that haunt world order generally.

 

This legaloutcome in The Hague was overwhelmingly endorsed politicallyby the General Assembly mandating Israeli compliance. It is disappointing that Israeli defiance of both the ICJ, the world’s highest judicial tribunal, and the General Assembly, the organ of the UN most representative of the peoples of the world, should have occasioned so little adverse commentary over the years. It is not only a further confirmation that the UN System and international law lacks the capacity to deliver even minimal justice to the Palestinian people but that such institutional authority is subject to a geopolitical veto, that is, international law without the backing of relevant power becomes paralyzed with respect to implementation.

 

When considering the constitutional right of veto given to the five permanent members of the Security Council as augmented by the informal geopolitical veto enabling dominant states to shield their friends as well as themselves from the constraints of international law, the dependence of law on the priorities of power becomes obvious, painfully so. It helps us grasp the perverse ways the world is currently organized.  It is truly pathetic that only the weak and vulnerable are subject to the constraints of law, while the strong and those shielded by the strong are the lawless overlords of this unruly planet.

 

The wall a notorious international symbol of coercive and exploitative separation, as epitomized by the apartheid security structures imposed on the Palestinian people as a whole has a grotesque pattern of implementation. Its ugly structures slice through and fragment Palestinian communities and neighborhoods, separating farmers from their farms, and creating a constant and an inescapable reminder of the nature of Israeli oppression.

 

It may put the issue of the separation wall in historical perspective to recall features of the Berlin Wall. During the Cold War it came to epitomize oppression in East Germany, and more generally in Eastern Europe. If the East German government had dared extend the wall even a few feet into West Berlin it would have meant war, and quite possibly World War III. And finally, when the wall came down it was an occasion of joyous celebration and a decisive moment in the historical dynamic that let the world know that the Cold War was over. It is helpful to appreciate that the Berlin Wall was designed to keep people in, while the Israeli Wall is supposed to keep people out.

 

There is also the question of motivation. As many have pointed out, the wall remains unfinished more than 15 years after it was declared necessary for Israeli security, which tends to support those critics that pointed out that if security was the true motive, it would have been finished long ago. Even if the claim is sincerely, in part, motivated by

security, it illustrates the unjust impacts of ‘the security dilemma’: small increments of Israeli security are achieved by creating much larger increments of insecurity for the Palestinians. Beyond security, it is obvious that this is one more land-grabbing tactic of the Israelis that is part of the wider Israeli strategy of treating ‘occupation,’ especially of the West Bank, as an occasion for ‘annexation.’ Even more insidiously, is the apparent Israeli intention to make Palestinian life near the wall so unendurable, that Palestinians relinquish their place of residence, ‘ethnic cleansing’ by any other name.  

 

What messages does this anniversary occasion deliver to the Palestinian people and the world? It is a grim reminder that the Palestinian people cannot hope to achieve justice or realize their rights by peaceful means. Such a reminder is particularly instructive as it comes at a time when intergovernmental efforts to find a political compromise between Israeli expectations and Palestinian aspirations has been pronounced a failure. This failure, again not surprisingly, has meant a dramatic shift in approaching ‘peace’ and ‘a solution’ from diplomacy to geopolitics, from the Oslo flawed diplomatic framework to the Trump ‘deal of the century’ or as Kushner has rephrased it, ‘peace to prosperity.’ Or more transparently phrased, it is ‘the victory caucus’ that Daniel Pipes and the Middle East Forum that he presides over has promoted so successfully in recent months, in effect, advocating a final betrayal of the rights of the Palestinian people, an approach that has evidently found a receptive audience in both the U.S. Congress/White House and the Israeli Knesset.

 

This geopolitical strategy is a thinly disguised attempt to satisfy Israel’s expectations as to borders, refugees, settlements, water, and Jerusalem while repudiating Palestinian rights under international law, including their most fundamental right of self-determination, supposedly a legal entitlement of all peoples in the post-colonial era.

The question that remains is ‘how much longer can the Zionist Project swim against the strong historical current of anti-colonialism?’

 

The answer in my view depends on whether the global solidarity movement, together with Palestinian resistance, can reach a tipping point that leads Israeli leadership to reconsider its ‘security’ and its future. Such a point was reached in South Africa, admittedly under quite different conditions, but with an analogous sense that the Afrikaner leadership would never give up control without being defeated in a bloody struggle for power.    

Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

2 Jun

Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

 

  1. Two recent exceptional books, Justice for Some: Law and the Question of Palestine (2019) by Noura Erakat and For the Love of Humanity: The World Tribunal on Iraq (2018) by Ayça Çubukçboth reject the liberal trope of assuming international law is an ally with respect to their passion for justice. Law as such is a neutral instrument, historically invented to serve the purposes of the strong, and more recently seen as useful for the weak in certain settings. When law is aligned with injustice it gives rise to resistance, which historically is associated with the hallowed tradition of civil disobedience, influential with Tolstoy, Gandhi, and more recently, Martin Luther King, Jr.. In these contexts civil disobedience can involve the nonviolent transgression of any legal norm that calls attention to the specific injustice. For instance, a refusal to pay taxes or trespass on a military base are illustrative. Armed struggle may also achieve law-generating legitimacy as was the case in the decades after World War II for anti-colonial wars or wars of national liberation. So far, there is no traditional of internationalor globalcivil disobedience. In a globalizing world, transnational activism needs such a means to protest injustice. Perhaps, the purported criminalization of the BDS Campaign directed at Israel in some Western countries gives this option to activists

 

  1. David Kennedy earlier developed the argument, if I read him correctly, that a principal value of international law in war/peace contexts is to provide a familiar and accepted discoursethat facilitates communication between representatives of governments, diplomats, and other actors. This assertion is more innovative than it appears at first glance. Most of us believe the main function and test of law’s effectiveness is whether it achieves restraints on behavior on the basis of legal prohibitions. Kennedy is skeptical of the ability of international law to shape the behavior of sovereign states in war/peace contexts, yet affirms the relevance of international law to the conduct of international relations. Instead of stressing the regulation of behavior of sovereign states, Kennedy believes that international law is primarily useful for purposes of intra-governmental and inter-governmental communication, helping policymakers determine how policy should be framed and justified. The challenge for most moderate governments is to exercise their discretion in ways responsive to a range of concerns, including humanitarian, security, and strategic. For overall discussion see Kennedy, Of War and Law (2006). There is a further point. In effect, language being inherently malleable, it is always possible to interpret the law to conform to preferred policy options reflecting societal roles and normative background. For this reason, in matters that challenge major state interests law serves mainly to communicate and clarify, but lacks the political traction to restrain. Law does allow the strong to vindicate their claims of belligerent rights as in war crimes trials of the leader(s) of defeated countries. A recent instance is the trial and execution of Saddam Hussein orchestrated by the victorious law-violating aggressor.

 

  1. By contrast, in Revisiting the Vietnam War (2018) I contend that American policies in Vietnam after 1954 were unlawful in various ways, with a special stress on the U.S. extension of the combat zone in South Vietnam to North Vietnam after 1964. In effect, international law, as well as the UN Charter, sought to be regulative with respect to behavior, as well as the incidental benefit of offering a framework for discourse among diplomats. Further, that regulative intentions giving rise to such legal norms were seeking to restrict recourse to international force to situations of self-defense strictly defined. The overriding goal of the. UN Charter is war prevention. The Nicaragua Casedecided by the World Court in 1986 confirmed the view that international law governing recourse to force was regulated in a manner entirely consistent with the UN Charter core concepts of unconditional prohibition (Article 2(4)), coupled with an exception for validclaims of self-defense made dependent on the existence of “a prior armed attack” across an international boundary. (Article 51). History is relevant. When the grief and tragedy of war remained an active memory restraint followed, not only because the law so decreed but as a reflection of the psychological anti-war mood that then briefly prevailed. 

 

  1. Such a regulative view of international law rests on a premise that there are correct and incorrect (or better and worse) modes of interpretation with respect to theapplicationof legal norms. This premise does not entail a positivist approach that restricts the meaning attributed to legal norms to the language used in formal texts or customary rules. A more appropriate interpretative approach can be adopted, enlarged to take account of context, including ethical, sociological, and historical considerations. When a country has recourse to force, claimint to act in accord with its right of self-defense or contends that its uses of force are proportional and discriminate a regulative approach can disagree by offering contrary factual and interpretative evidence. The absence of authoritative interpreters of international law make theses assessments rest to a greater degree on supposedly neutral scholarly or expert opinion, which is deemed more trustworthy as not forthcoming from a partisan source. Of course, scholars disagree just as judges disagree. For this reason the selection of judges or the appraisal of scholarly merit is crucial and often determinative of ‘the law.’ The significant differences between Brett Kavanaugh and Ruth Bader Ginsberg are not vocational or analytical as much as they are normative and subjective.

 

  1. Myres McDougal in collaboration with Harold Lasswell addressed this issue of ‘normative ambiguity.’ They attempted. to resolve the challenge of authoritativeness by reference to ‘reasonable expectations’ as assessed by reference to the values at stake in a free society. As their work was rooted in the global setting of the Cold War their inclinations were to find that American foreign policy was in most instances compatible with international law as it was assumed guided by a commitment to promote free world values and by reliance on capabilities able to bring effective power to bear on the behavior of political actors. See McDougal & Florentino Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion(1961); see also McDougal & Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of World Order,” American Journal of International Law53:1 (1959). Such a jurisprudential perspective regards international law as a geopolitical instrument evaluated as good or bad by reference to the normative credentials and material capabilities of political actors. These credentials are given concrete significance by assessing the degree of adherence of a domestic public order system to the values of a free society. The West, from this point of view supposedly adhered to such values, while the Soviet bloc did not. Such a framework was deeply ideological as in contested situations, for instance, Vietnam, where the differences between the Soviet and American forms of government should not have affected the legal assessment of violations of the sovereign rights of Vietnam.

 

  1. Çubukçu explores the relevance of international law in the informal setting of a people’s tribunal established to assess the legality of the Iraq War, including the subsequent occupation of Iraq. The tribunal was charged with determining whether political leaders, military commanders, and corporate officers should be held personally accountable under international criminal law. Admittedly, this is a somewhat misleading way to conceive of the central mission of the Iraq War Tribunal. This appropriation of law by those acting on behalf of civil society are doing so on the basis of already formed judgments that reflect moral convictions. Such a peoples’ tribunal is tasked with documentingviolations of international law and international crimes, and is expected to justify conclusions of criminality, which were presumed, and motivated the effort to create such a tribunal. Such a ‘judicial’ undertaking is not motivated by a search for the proper mode of interpretation. The Tribunal’s ‘jury of conscience’ did not rest its authority on the basis of having legal experts pass judgment, although it was permissible to have such individuals participate, but only to the extent that their politics are right and their reputation as exemplary citizens is high. Putting the point differently, these kinds of civic initiatives are undertaken because of anti-war sentiments being considered applicable to the judgment of belligerent behavior being challenged and the failure of formal institutions, including the United Nations, to protect a sovereign nation, in this case Iraq, from military attack and occupation. It is not an inquiry as generally understood, but a gathering of evidence and interpretative argument to mount a challenge directed at a controversial policy of a government, usually a government that enjoys impunity with respect to its wrongdoing. The conclusions of such a tribunal is ultimately an appeal to international public opinion, but usually falls short of its goals because of limits on funding available to disseminate results and antipathy of mainstream media to these activities. These tribunals are portrayed by the media as usurping the role of formal institutions and are constituted without any acceptable constitutional mandate. The underlying question is whether civil society has any lawmaking authority deserving respect. As such tribunals challenge the new political norms of post-truth society, some view their role as benevolent, others as irrelevant if not malevolent. There is no doubt that civil society exerts an influence on public opinion with respect to issues of war/peace, including accountability for war crimes. Such influence tends to be more evident in democratic societies. Yet modern democratic states rely on extensive claims of secrecy, nationalist ideology, money, and militarism to marginalize those citizens who seek to engage more fully and critically with public policy, especially the war/peace agenda, than by voting periodically. Tribunals established by citizens is a dissident mode of participatory democracy, and more important for this reason than as a contribution to upholding the rule of law.   

 

  1. Academic international law specialists rarely acknowledge any legal, moral, and political relevance to civil society initiatives that claim a residual authority to act when governments and the UN fail to do so. In this sense, the Nuremberg and Tokyo trials after World War II also proceeded on the basis of predetermined results, but because constituted by sovereign states as represented by governments, their undertaking was generally viewed as deserving of respect. The documentation of criminality was widely regarded as an invaluable form of political education. What little criticism of these legal initiatives by academic specialists did occur focused on the fact that the crimes of the victors, including the atomic bombing of Japanese cities, were excluded even from inquiry, much less accountability. In other words, since international law is treated as subject to the statist framework of world order, non-statist initiatives to pronounce on the wrongdoing of states are dismissed as without legal relevance.

 

  1. We are confronting various kinds of partisan scholarship, some overt, some hidden. Çubukçu and Erakat are notable because they make their partisanship explicit, whereas the mainstream jurisprudential traditions, whether positivist, realist, or sociological, claim an objective approach premised on the mystique of ‘the majesty of the law.’ Or as in recent debates about the Trump presidency, rhetorical flourishes such as ‘no one is above the law’ are common yet non-operational. Even before the banner of ‘fake news’ was waved so defiantly, it was obvious that law and legal order depend more on the political and ethical outlook of the interpreter than on legal training and analytical skills or even on the aura of legitimacy surrounding governmental institutions. It is usually more helpful to know the viewpoints of the judges on the U.S. Supreme Court than knowing all about the substantive ins and outs of a legal controversy being addressed.

 

  1. Shall we also admit that the law in the books will not necessarily matter unless it is accompanied by a sufficient political willto seek and achieve implementation? In international life this political will depend heavily on the attitudes of leading geopolitical actors. In domestic society the political will is shaped by what the 20thcentury Austrian sociologist of law, Eugen Erlich, called ‘the living law,’ the values and expectations of the people as the crucial indicator of effective law.For routine matters such as tourism, diplomatic representation, maritime safety governments comply because it is convenient for them to do so, or reciprocity creates mutual benefits. When war/peace is at stake, then law tends to be sidelined by geopolitics, invoked when it serves interests, evaded or refuted when it contradicts interests. The hope after the devastating war that ended in 1945 and generated a well-founded fear that a future war would involve nuclear devastation was that it would incline the most powerful state to abandon war as an instrument of policy as a matter of law reinforced by political will. Instead geopolitical actors, above all the United States and the Soviet Union opted more for prudence than prevention, continuing to advance their interests by investing heavily in military capabilities and by pragmatic recourses to international force. This post-nuclear militarism was tempered by strong efforts to limit the scale and stakes of conflict to avoid a major war that could lead to the use of nuclear weaponry.

 

  1. The substantive context matters. The state, if corruption and incompetence can be minimized, can be relied upon to act lawfully if the subject-matter is What is treated as routine shifts with time, and reflects to some extent the ebb and flow of political outlook, but generally coincides with behavior that reflects reciprocal interests as is the case with diplomatic immunity, maritime safety, and often even treatment of prisoners of war. Geopolitical actors generally have a strong interest in stability for purposes of trade, investment, travel, and communications that depends on reliable international legal frameworks. Law collapses when there is absent a political will to implement the legal norms as is the case with respect to economic and social rights. Such norms come into existence because of widely shared moral aspirations, but lack political traction to challenge entrenched private sector interests that benefit from non-compliance as with the ‘right to food’ or the ‘right to health.’ Beyond this, the absence of an international community dedicated to human interestsas distinct from national interests makes it evident that despite economic and social rights anchored in treaty law, any sense of meaningful internationalresponsibility is almost non-existent. What international relief is forthcoming in response to famine and natural disasters is invariably voluntary, a matter of good will, rather than an expression of an obligatoryresponse.

 

11.Where asymmetries of power exist, as in competing claims of sovereign rights, with respect to the delimitation of territorial boundaries or upholding the right of self-determination, law validates grievances, motivates resistance, but cannot shape political outcomes. Asymmetries of power are conventionally associated with relative military capabilities, but this has been demonstrated to be misleading in post-1945 international relations. A major recent prominent example is the overall success of the anti-colonial movement. In case after case a mobilized popular resistance of the nation overcame the superior military capabilities of the colonial power. The exceptions to this pattern involve settler colonial societies in which the native population was exterminated or marginalized as in North America, Australia, New Zealand, or somewhat assimilated as in most of Latin America. Relative military power is still highly relevant in conflicts between states, but not in their subsequent occupation. In the instances of aggression against Afghanistan and Iraq, the military superiority of the United States prevailed in the attack phase of warfare, yet during the subsequent occupation phase it endured a political defeatthat basically nullified the military victory. In the post-colonial world, popular sovereignty when effectively mobilized as resistance can often challenge geopolitical maneuvers, upholding basic rights, but at great human cost. Legitimating resistance through law as occurred in the course of the great anti-colonial struggles of the last half of the 20thcentury may have been the greatest contribution of the United Nations to peace and justice.   

 

 

12.I will end where I began, celebrating the publication of the recent books by Çubukçu and Erakat. Çubukçu helps us better understand the complex interplay of law and war from the perspective of movement politics; the geopolitical state is the target of disapproval for its behavior—trampling on the sovereign rights of the Iraqi people by waging an unprovoked war. Erakat, in contrast, explores how law has been twisted by governments to serve geopolitical interests at the expense of basic Palestinian rights, and yet normative discourse nevertheless currently serves the struggle of the Palestinian people and strengthens the political will of transnational civil society to challenge Israel.  

 

 

 

 

 

Why Vote on Tuesday: The Menacing Challenges of Trump and Trumpism

4 Nov

World Order in the Age of Trump and Trumpism 

[Prefatory Note: This piece has been published in two online publications in recent days, Rozenberg Quarterly and Z-Net, in slightly modified form. It is based on a lecture given at West Chester University in Pennsylvania on October 24, 2018 at the invitation of C.J. Polychroniou. Although I have no great expectations about improvements in American foreign policy of Congress if it is fully or partially controlled by Democratic majorities after the November 6thmidterm elections. Nevertheless, I share the widely held anti-fascist view that any show of opposition to Trump and Trumpism at this time deserves priority on an urgent basis.]

 

On Trumpism

 

This title requires a few words of explanation. By the ‘Age of Trump,’ I mean not only the current American president. The phrase is meant to encompass elected leaders like him around the world. I have a friend in India who refers to Narendra Modi as ‘our Trump’ and the newspapers have been full of commentary to the effect that the new leader of Brazil, Jair Bolsonaro, amounts to ‘a Brazilian Donald Trump,’ although some familiar with Bolsonaro’s worldview insist that ‘a Brazilian Joseph Goebbels’ is more accurate. This extension of Trump to Trumpism is meant to make us aware that Trump is not just an American abnormality. He reflects a structural conditions that seem global in character, although with significant variations from nation to nation, and makes reference to Trump’s proto-fascist ‘base’ in the U.S..

 

By referring to ‘Trumpism’ my intention to highlight several issues other than decrying Trump as a particular instance of this new autocratic brand of a supposedly ‘democratic’ leader: (1) To associate ‘Trumpism’ with a deliberate U.S. withdrawal from political and neoliberal globalization, without significantly challenging, perhaps even augmenting military globalism, enhancing capabilities to project destructive power anywhere on the planet, while weakening alliance commitments and multilateral trade frameworks; (2) Trumpism also refers to the populist base of support for a global array of strong leaders, and their accompanying right-wing social, economic, and cultural policies, with the threat of ‘fascism’ and fascist tendencies being increasingly feared and perceived, even in centrist discourse; (3) Trumpism also involves a shift of preferred worldview from globalist to nationalist centers of political gravity, with a loss of normative support for human rights, democracy, and multilateral diplomacy and cooperative forms of multilateral problem-solving and treaty making; and (4) in the American setting, this phenomenon of Trumpism is not tied solely to the person of Trump; it could survive Trump if one or more of several scenarios unfold—for instance, in the 2018 and 2020 national elections the Republican Congress is reelected, even if Trump should be defeated or compelled to resign—in effect, the Republican Party has been effectively taken over by the ideas, values, and approach of Trump, and vice versa; it is difficult to disentangle ideological cause and effect as between party and leader.

 

The Kavanagh confirmation hearings were one kind of straw in the wind, considering the iron party discipline manifested. With this appointment to the U.S. Supreme Court it is likely that the American judiciary will be Trumpist for many years even if Trump is soundly defeated in 2020. Trump’s judicial appointments are setting the judicial tone for years, if not decades, were the Democratic Party to take control of the Senate as early as November.

 

 

On Trump: Personality and Policy

 

There is one important confusion surround the global approach of Trump, which arises from the perception of Trump as incoherent, impulsive, and dishonest, and nothing more than an opportunistic narcissist. I think this confusion can be reduced by distinguishing between Trump as tactician and Trump as strategist. It is as if it is necessary to approach the identity of Trump as an either/or question: either Trump is completely ad hoc and opportunistic or he knows what he is doing, and has been effective in carrying out his plan. My view is that Trump is both an erratic personality and a right-wing ideologue.

 

To simply a rather complex set of questions let me suggest that when Trump acts tactically, or in dealing with the media, he is inconsistent, often lies, bobs and weaves like a professional boxer.  He seems capable of being starkly contradictory without blinking, and above all, adopt positions that are both tasteless and detached from reality, as well as being supremely opportunistic, especially if he feels cornered by breaking news or is intent on capturing the news cycle. In such contexts, Trump seems ready to keep changing his story, retract compromises, defame the opposition, inflame his base by uttering deliberate exaggerations, and steer the ship of state with wild abandon without the steadying presence of a rudder. 

 

However, when Trump acts strategically he seems quite a different person, above all, rather coherent, and methodical, almost pragmatic, in advancing an ideological agenda. His grand strategy is consistently reactionary in the sense of being ultra-nationalist, anti-immigrant, anti-globalist, militarist, business friendly, and contemptuous of international law, the UN, human rights, constitutionalism, the rule of law, climate change, and environmental protection. Trump continues to be an avowed climate changer denier in the face of massive scientific evidence to the contrary and despite a series of daunting extreme weather events here in the United States. ‘America, First’ is Trump’s signature slogan. For once, it is not ‘fake news,’ although it strikes many of us as imprudent and unacceptable in shaping American public policy. This kind of egocentric nationalism and unfettered capitalism is dangerously ill-adapted to serve as a geopolitical and economic compass for successfully navigating the 21stcentury.

 

To obtain a more complete picture of Trump’s political style, it seems illuminating to make an assessment by combining perceptions from three different angles: as a trickster and con man when tweeting or dealing with the media; as a demagoguewhen he performs at his political rallies; and as an ideologuewhen it comes to policy decisions and influence peddling. It is this composite that makes Trump such a confounding and dangerous political figure. It also makes the past political experience of American presidents irrelevant. It is not an overstatement to observe that there has never before been an American president who handles the office in such a maverick fashion.

 

 

Normative  Decline

 

As someone who has long associated his work with the critical tradition of International Relations (IR) theorizing, I am particularly sensitive to an observable normative decline in  international behavior that can be partially attributed to Trump and Trumpism. For one thing, the US has acted as global leader, including as advocate of public goods, ever since 1945. Admittedly its recordand practicehas been mixed when it comes to international law and respect for the UN and its Charter. Nevertheless, the pre-Trump leadership role was vital in several key sectors of global policy, including climate change, nuclear arms control, development assistance, world poverty, and global migration. The United States Government was also a vital promoter of several less visible concerns such as negotiating a modern  public order of the oceans, an international regime for Antarctica, and an international framework of rules, procedures, and institutions for trade and investment. There is no doubt that the U.S. carried out its leadership role so as to gain advantages for itself, but this was generally accepted by most other states because the U.S. contributed to policy results that were widely believed to be upholding the common interests of humanity. Without this American role, there has emerged a leadership vacuum at the very time that the world order challenges can be met only with a strong and constructive exertion of leadership on global issues. The UN is incapable of providing such leadership. World order remains state-centric and is as dependent as ever on global leadership by dominant sovereign states. It is quite possible that some post-American form of collective leadership will emerge, and provide the world with an inter-governmental alternative to global governance under the watchful eye of Washington.

 

What Trump has done, and Trumpism endorsed, is to repudiate these normative horizons in global settings in a variety of contexts in which their relevance should be treated as greater than ever. Such behavior increases risks of catastrophic ecological and geopolitical events, ranging from accelerated global warming to a war with Iran. It also exhibits a kind of escapist evasion of the real challenges to national and global wellbeing that will grow more serious and impose ever higher costs on the future to the extent that they are being currently ignored. Furthermore, leaving these issues to simmer, accentuates the existential suffering of persons subject to cruel and oppressive conditions of strife and control, while consigning future generations to a dark destiny and heightened risks of catastrophic events.

 

 

Preparing for Trump: the Failures of Pre-Trump Leadership

           

By indicting the role of Trump and Trumpism I do not want leave the impression of a rosy picture of pre-Trump world order. In actuality, Trump has so far when acting internationally, except for global economic policy, mainly departed from the pre-Trump policy framework discursivelevel. To date the behavioraldiscontinuities are not clearly evident.  Trump has definitely made moves to dismantle the international political economy, or what is referred to as ‘the liberal world order’ shaped after 1945, with its deference to the approaches taken by the Bretton Woods Institutions of the World Bank and IMF. Yet the Trump approach does not want to regulate capital flows beyond protecting the domestic American market. It has no trouble with an outlook that favors returns on capital over effects on people.

 

On other issues, as well, it is well to look back so as to gain insight into what has changed, and what has remained essentially the same. Pre-Trump foreign policy was steadfastly pro-Israeli all along, its idea of national security all along aspired to achieve global military and economic dominance, and Washington’s approach to the UN, international law, and human rights was always highly selective, and often subordinated to the pursuit of strategic goals. This was especially true after the end of the Cold War. During this period of 25 years pre-Trump leaders completely missed golden opportunities to improve the quality of world order by strengthening the UN, by seeking nuclear disarmament, by pursuing ecological stability, and by promoting global economic reforms that would ensure a more equitable societal sharing of the benefits of economic growth. It did none of these things, thus paving the way for the rise of Trump and Trumpism, which has to be sure intensified these regressive tendencies that preceded its occupancy of the White House. In this sense, it is a mistake of mainstream critics not to place significant levels of blame for Trump and Trumpism on the myopic priorities of pre-Trump global leadership. [See Stephen Gill, ed.,Global Crises and the Crisis of Global Leadership(2012)] It is a reasonable conjecture that had the pre-Trump leaders taken advantage of the situation after the end of the Cold War to promote an ambitious program of global reform, there might never have been an ‘Age of Trump,’ but of course we will never know.

 

The claimed reality of normative decline can be better understood by looking at three illustrative instances both to understand and appraise the claim.

 

  • Ignoring Palestinian Rights. One of the clearest instances of Trump’s approach in action concerns the approach to the Palestinian struggle for national rights. Trump’s one-sided moves over the past two years are indicative: appointing extreme Zionists to shape his policies toward Israel and Palestine, and even the region; Trump’s break with the international consensus by moving the American embassy in Israel to Jerusalem; a blind eye toward unlawful Israel settlement expansion and its repeated use of excessive force and collective punishment; the defunding of UNRWA assistance to administer occupied Palestinian territories accentuating the ordeal endured by the civilian populations, especially in Gaza; and the attempts to deny refugee status to several million Palestinian refugees born in refugee camps.

 

These provocative policy initiatives appear to be part of a coherent endorsement of a ‘one-state Israeli solution,’ a feature of which is to deny completely Palestinian fundamental rights, including above all the right of self-determination. Along the way Trump and his minions bashes the UN for its supposedly anti-Israel bias and go so far as to threaten UN member states and the Organization with funding consequences if American policy demands are being ignored. It should be understood that Israel and the United States are complaining about UN criticisms of Israeli policies that are flagrant violations of international humanitarian law and international criminal law.[†]

 

Such geopolitical bullying at the UN is a total repudiation of the potential for creating a cooperative international order, which would alone be capable of serving the shared interests of the entire world. These interests include those challenges of global scope that no sovereign state, no matter how rich and powerful can hope to solve on its own. These bullying moves by the U.S. are also a shocking response to efforts at the UN to hold Israel accountable for flagrant violations of international law.

 

This in turn has enabled Israel to proceed ruthlessly with the last phases of the Zionist Project in its maximal form, which is to establish an exclusive Jewish state on the entirety of what had long been an essentially non-Jewish society. It is helpful to recall that at the time in 1917 when this Zionist Project received its first major international blessing in the form of the Balfour Declaration the Jewish population of Palestine was less than 6%. The repression and dispossession of non-Jewish residents that has followed for more than a century rips away the veil of deception surrounding the claim that Israel was the only democratic state in the Middle East. It gave a measure of plausibility to allegations of the apartheid nature of Israeli domination of the Palestinian people.  This allegation has now been made less controversial due to the recent adoption in Israel of a new Basic Law known as “The Nation Staten Law of the Jewish people.” Despite the realities of the subjugation of Palestinians, prior to the Basic Law, the United States had joined Israel in insisting at the UN that an academic report concluding that the patterns and practices relied upon by Israel qualified as  apartheid was nothing other than a crude attempt to slander Israel via an anti-Semitic trope.[‡]

 

My point here is to take account of a clear and prominent international situation in which American political partisanship is allowed to push aside normative considerations. To do this in such a high-profile setting, further diminishes respect for the rights of a dispossessed and oppressed people and for international law and the UN generally.

 

 

  • The Qatar Crisis. The Qatar Crisis, which began in 2017, illustrates the tactical side of Trump as ill-informed and mercurial when it comes to American foreign policy and is again confirmatory of the irrelevance of international law if its application is inconvenient in geopolitical crisis situations. In the immediate aftermath of Trump’s 2017 May visit to Saudi Arabia, with its purpose of strengthening of the Saudi/Israel/US resolve to confront Iran, the Mohammed ben Salmon leadership in Riyadh chose the moment to confront the tiny state of Qatar with 13 Demands, coupled with a variety of threats as a prelude to coercive diplomacy in the form of a blockade, an embargo, and expulsion of Qatari nationals from residence and employment throughout the Gulf region.

 

The central charge against Qatar was its alleged support for terrorists and terrorism in the region. This was a perverse charge because the Gulf Coalition making the allegations was far more indictable for supporting international terrorism and promoting jihadism than was Qatar. The real motivation of the anti-Qatar coalition was to shut down Al Jazeera and the policies of asylum that Qatar extended to political figures seeking refuge, initiatives well within Qatar’s sovereign rights, and steps that were actually supportive of internationally protected human rights and political pluralism.

 

In actuality, these countries seeking to overwhelm Qatar were more worried about democratictendencies than they were about terrorism. Their Sunni governments are extremely hostile to all Muslim oriented political tendencies  in the region in ways that are regarded as more threatening to their stability than is the Shi’ia sectarian rivalry. This form of threat perception was made clear by the counterrevolutionary support given by the Gulf monarchies to the military coup against the democratically elected Muslim Brotherhood government in Egypt back in 2013. The hostility toward Shi’ism is less theological than geopolitical, a cover for its competition with Iran for regional hegemony.

 

At first, Trump conveyed unreserved U.S. support for these moves against Qater designed to intimate this tiny country. However it became soon clear that Trump had no idea about what he was doing.  Upon returning to the U.S. Trump quickly discovered that the largest American air base in the region was located inside Qatar housing as many as 10,000 American troops. In an unexplained turnaround Trump dropped support for confronting Qatar and urged the parties to resolve the Gulf Crisis as soon as possible by negotiations, a position supported strongly by the Secretaries of State and Defense. After some months, when this shift of Washington tactics didn’t succeed, Trump shifted again this time asserting that the U.S. does not interfere in such crises, and left it up to the parties to find their own solution. I suspect that this second shift occurred because the Trump presidency didn’t want to be associated with a position that appeared to exert no influence on the parties to the conflict.

 

My central point is that what didn’t matter at all in such a tactical situation was the striking fact that Qatar, as with Palestine, had international law totally on its side with respect to all of the issues in contention. Even the international community and the UN failed to lend symbolic support to Qatar in reaction to the unlawful bullying tactics pursued by Saudi Arabia and its coalition partners. Qatar has seemed reluctant to insist on its rights under international law as its pragmatic response to the crisis was to seek a mediated compromise rather than an acknowledgement of wrongdoing  by the Gulf Coalition. Perhaps such a posture was, and remains, a reflection of the power disparities, which meant that Qatar’s only hope to end the crisis peacefully. Expecting the Gulf Coalition to admit its wrongdoing was evidently assumed to be unrealistic given its hard power dominance of the Gulf.

 

  • The Khashoggi Murder. As has been widely suggested, the grotesque murder of the leading Saudi journalist, Kamal Khashoggi, shocked humanity in ways that tens of thousand of dead civilians in Yemen and Syria have not. There are various interpretations and piously phrased prescriptions about what must be done. Should the Saudi perpetrators be held responsible? And if so how? Should lucrative arms deals benefitting the American arms industry be cancelled costing American jobs and profits? Should the alliance with Saudi Arabia by the US and Israel go forward with its central plan of confronting Iran, while abandoning the Palestinians? What such a litany of questions ignores is the total neglect of the relevance of the most fundamental of human rights, the right to life, as well as the abuse of diplomatic immunity of consulates located in a foreign territory.

 

When contemplating the proper course of action the main consideration seems to be ‘how to preserve national interests in light of such a grisley murder?’ As long as possible, Trump and the Israeli leadership sought to explain away the Khashoggi murder by shamelessly advancing a series of scenarios that invoked ‘alternative facts’ to avoid pointing a finger of accusation in the direction of Riyadh—first, it didn’t happen, and if it happened it was an accident, and then finally, if it wasn’t accident it  was not premeditated, and should be treated as a rogue operation of Saudi security people going beyond their orders. If some Saudi official are punished this is enough to absolve Mohamed ben Salmon from guilt, regional geopolitics after a pause can be resumed as if the murder didn’t happen, and the United States can deliver the arms sold with a clear conscience as if nothing happened that should raise questions about continuing to treat Saudi Arabia as a valued ally. Not just the Khashoggi murder, but the broader record of human rights abuse, the malicious and inhumane Yemen War,  and the major funding of Islamic militancy around the world should have caused severe doubt. Does not political realism have any outer moral limits? The alliance with Saudi Arabia carries cynicism about ethical decency to an extreme.

 

 

Taking World Order Seriously

 

Leaders like Trump or Netanyahu whose global outlook are antagonistic to the values of the UN Charter and some form of humane global governance. Yet even they appear to value the UN as a prime time arena within which to articulate their preferred futures and aspirations, ironically including attacking the UN because it does behave as they would wish. In this sense, the priorities and values of leaders, especially those of authoritarian disposition, are often displayed in the annual series of speeches given at the UN. The media pays little attention to such presentations except to gain clues about immediate policy concerns, and this preoccupation with hot button issues overlooks their value as expressive of the worldview professed by current national leaders. This is not to suggest that such UN statements ignore immediate policy choices. The point is rather that it is more valuable to treat these annual statements as meaningful disclosures of underlying ideas about the nature and dynamics of world order.

 

Donald Trump’s second UN speech was somewhat less belligerent than his 2017 speech, except with reference to Iran, which was threatening, misleading, and in violation of spirit and letter of UN Charter. Trump disturbingly conveyed a clear sense that recourse to war, at least for the US was discretionary, and need not necessarily be justified by advancing a credible claim of self-defense or even a reasoned justification. As such, without using negating language toward the relevance of international law, Trump is repudiating in form as well as practice the core undertaking of the UN to prohibit all aggressive threats and uses of force in international relations.

 

In articulating this conception of the world according to Trump a few quotations underscore the tone and substance of his outlook, especially his insistence on subordinating global concerns to national interests narrowly conceived. On all questions, Trump accords priority to sovereign political will, thus repudiating the central efforts after World War II to promote a global rule of law and impose standards of criminal accountability on those who act on behalf of sovereign states. He also rejects the role of the UN Charter and international law as the rightful arbiter of when a state is authorized to use force internationally in situations other than responses to armed attacks.

 

A few representative quotes convey the tone and substance of Trump’s 2018 speech to the General Assembly.

 

On Anti-Globalism:

“America will always choose independence and cooperation over global governance, control and dominance.”

 

On Affirming Capitalism as the only legitimate path:

“America is governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism.”

“All nations around the world should resist socialism and the misery that it brings.”

 

On UN Reform:

Denying the  legitimacy to both HRC and ICC:

“We will never surrender America’s sovereignty to      an unelected, unaccountable global bureaucracy.”

 

 

On a World of Sovereign States:

“Sovereign and independent nations are the only vehicle where freedom has ever survived, democracy, has ever endured or peace has ever prospered. And we must protect our sovereignty and our cherished independence above all,”

“So let us choose a future of patriotism, prosperity, and pride…We have a policy of principled realism rooted in shared goals, interests, and values.”

 

Dr. Mahathir Mohamed, the 93 year old leader of Malaysia gave the UN General Assembly an entirely different view of both the national interests of his country and his view of the global setting. This view reaffirmed the balance struck between the global and the national in the post-1945 initiatives as enacted by establishing the UN and holding the Nuremberg war crimes trials. Mahathir also recognized the gravity of the challenges that are presently confronting humanity. In my view, Mahathir’s responsible statesmanship contrasts with Trump’s anachronistic ideas of international order and American national interests.

 

As with Trump, a few representative quotes from Mahathir’s speech convey his overall approach.

 

On Malaysian national interest and values:

“Malaysians want a new Malaysia that upholds the principles of fairness, good governance, integrity and the rule of law. They want a Malaysia that is a friend to all and enemy of none. A Malaysia that remains neutral and non-aligned. A Malaysia that detests and abhors wars and violence. They also want a Malaysia that will speak its mind on what is right and wrong, without fear or favour. A new Malaysia that believes in co-operation based on mutual respect, for mutual gain. The new Malaysia that offers a partnership based on our philosophy of ‘prosper-thy-neighbour’. We believe in the goodness of cooperation, that a prosperous and stable neighbour would contribute to our own prosperity and stability.”

 

On respect for UN principles:

“These include the principles of truth, human rights, the rule of law, justice, fairness, responsibility and accountability, as well as sustainability.”

 

Toward a nonviolent geopolitics:

“There is something wrong with our way of thinking, with our value system. Kill one man, it is murder, kill a million and you become a hero. And so we still believe that conflict between nations can be resolved with war.”

 

On UN Reform:

“Malaysia lauds the UN in its endeavours to end poverty, protect our planet and try to ensure everyone enjoys peace and prosperity. But I would like to refer to the need for reform in the organisation. Five countries on the basis of their victories 70 over years ago cannot claim to have a right to hold the world to ransom forever. They cannot take the moral high ground, preaching democracy and regime change in the countries of the world when they deny democracy in this organisation.”

 

These two opposing worldviews should not be viewed as symmetrical. Trump adopts an extreme version of state-centric world order that might have been seen as appropriate for a dominant state in the nineteenth century. In contrast, Mahathir has views that take responsible account of twenty-first century realities, and a more globalized cluster of challenges and opportunities. In this regard, it seems appropriate to regard Trump and Trumpism as dangerously anachronistic, while Mahathir providing an illuminating example of what might be described as ‘the new political realism’ sensitive to the urgencies of the present.

 

 

Seven Conclusions

 

  • It is instructive to distinguish Donald Trump the person from Trumpism a global political phenomenon of right-wing populism and a structural reaction to neoliberal globalization;
  • It is also clarifying to distinguish Trump the gifted tactical trickster from Trump the right-wing ideologue;
  • There has occurred a normative decline rendering irrelevant in most war/peace settings international law, the UN, and human rights; this decline began before the Trump presidency but has been accelerated by Trump;
  • It would be misleading to overlook pre-Trump failings of American global leadership, especially in the period between the end of the Cold War and the 9/11 attacks; the pre-Trump continuities are more fundamental than discontinuities, especially in view of the bipartisan response to 9/11;
  • Two lines of criticism of Trump’s world order approach should be taken into account: I. blame by the established interests and the deep state for dismantling the liberal international order, damaging Western solidarity, retreating from hegemonic leadership; II. blame by political realists for abandoning the U.S. role as benevolent hegemon; such realist hold Trump responsible for his failure to do more to shape global policy along pragmatic and sustainable lines;
  • War-mongering toward Iran;
  • It would be in the human interest to be attentive to Mahathir’s alternative worldview, which articulates a perspective sensitive to the claims of small states and responsive to the claims of planetary realism; such an outlook necessarily rejects regressive embraces of ultra-nationalism that are occurring in several key countries at the present time.

 

  

 

[*]Based on lecture given at West Chester University, October 24, 2018.

[†]It is always important to appreciate that the problems of the Palestinian people are a direct result of the failure of the UN to find a formula for peace that upholds Palestinian basic rights. No other situation in the world is so directly related to UN unrealized initiatives.

[‡]This study titled “Israeli Policies and Practices Towards the Palestinian People: The Question of Apartheid,” was commissioned by the UN Economic and Social Council for West Asia (ESCWA), released March 15, 2017, and written by Virginia Tilley and myself.

On Qatar and Gulf Geopolitics

3 Sep

Prefatory Note: The post below in the slightly modified text of an interview by the Tunisian journalist Awatef Ben Ali on behalf of the Qatar newspaper, Al Sharq, August 26, 2018.)

 

 

 

Q 1: From the perspective of international law, is the blockade on the State of Qatar and the 13 demands of the countries of the blockade legal and respecting international sovereignty?

 

A: The 13 demands of the Gulf Coalition plus Egypt, as well as the blockade of Qatar, are unlawful, violating Qatari sovereignty by using diplomatic and economic coercion to interfere with activities that are within the discretion of a sovereign state. It is a regional geopolitical tactic that tries to leverage superior power in ways that induce weaker and smaller states to sacrifice their rights under international law. The allegations of support for terrorism are without any factual foundation and are not supported by any credible evidence, and can be leveled at Qatar’s accusers with more justification than the allegation being made against Qatar. Not only are the 13 demands violations of international law, they are also disruptive of proper and customary diplomatic protocol, an assessment reinforced by Qatar membership in good standing of the GCC and its repeated calls for a negotiated end to the crisis.

 

 

Q 2: The State of Qatar resorted to the International Court of Justice in The Hague to prove the attacks on the rights of its citizens? How do you view these advocates as a legal perspective?

 

A: Recourse to the ICJ is appropriate in situations in which an international legal dispute exists, and cannot be resolved by normal diplomacy. Since the outset of the crisis in 2017 Qatar has repeatedly expressed its willingness to accept third party mediation of the dispute, and to do its part to reach a mutually acceptable political compromise. In contrast, the Coalition merely reiterated its demands and showed no willingness to end the crisis by peaceful negotiation. Qatar has every right to make use of its legal remedies under international law, and if it has a treaty right to resolve disputes with other Gulf states by recourse to the ICJ then this is a constructive step that represents a constructive approach to bring the crisis to a peaceful end in accordance with international law and in the interests of justice. Individuals harmed by this unlawful series of coercive steps should receive relief commensurate to the harm experienced, as well as being relieved of any burdens imposed by the Coalition’s policies.

 

 

Q 3: Qataris were deprived of Hajj. How does the law and the international community view this Saudi abuse?

 

A: As far as I know there is no international legal obligation that compels Saudi Arabia to allow Qataris to enter their country to complete the Hajj. There may be religious commitments and diplomatic traditions that have long been accepted by Saudi Arabia in upholding in good faith its role as custodian of the most holy of Muslim sacred sites. Such diplomatic traditions, as exhibited by patterns of practice over the course of many years, have created expectations that such entry to Saudi Arabia for such a religious purpose will be facilitated. Whether a regional or international legal duty should be established should be considered and discussed. It would seem reasonable to impose such a legal obligation for entry and security on Saudi Arabia because Muslims are obligated by their religion to do the Hajj at least once in their life, and this religious undertaking should not be obstructed by political interference. The translation of such a religious duty into a legal right is something that deserves careful consideration, perhaps in the context of expanding the right of religious freedom that is a legally protected international human right that may require more direct protection in view of these recent interferences with Muslim entry to carry out the Hajj.

 

 

Q 4: The Gulf crisis has reached a stage of stagnation. How do you see the efforts of the Gulf, American and European mediation?

 

A: As mentioned earlier, Qatar is ready to submit the crisis to mediation or any reasonable third party procedure, while the Gulf Coalition is adamant in its refusal.  As your question suggests there are plenty of willing mediators or third parties from the region and from Europe or the United States. The UN Charter underscores the duty of states to seek a peaceful solution of disputes that threaten international peace and security. Given the turmoil in the Middle East, the Gulf Crisis creates one additional flashpoint that could erupt at any time in dangerous and unpredictable ways. The idea of mediation is a means to give both sides a way of resolving the crisis without either side having to acknowledge defeat or endure some kind of diplomatic humiliation. It seem mandatory, in the spirit of the peaceful settlement of dispute, for the leaders of the Gulf Coalition to accept offers of mediation with a sense of urgency, and not prolong this regionally detrimental crisis that also causes harm to many individuals forced to sever their ties with Qatar, or have their relations with other Gulf countries disrupted in ways that result in unfair, arbitrary, and often heavy burdens.

 

Q 5: The State of Qatar plays a pivotal strategic role as a regional negotiator through its strong relationship with a number of major countries and its support to a number of countries, most recently Turkey. How do you evaluate this role?

 

A: An irony of the crisis is that Qatar has in recent years played a consistently moderating role in relation to several regional conflicts, and has engaged in relations beyond the Arab World that have produced economic, security, and diplomatic benefits for the region. Indeed, Qatar has used its wealth and influence in largely imaginative ways to establish mutually beneficial regional and international relationships. In this regard Qatar can be viewed as a small country that has played a diplomatic role beyond its size and capabilities, and could serve as a model of how to be effective as a sovereign state through reliance on the instrumentalities of ‘soft power.’

 

 

Q 6: How do you see the problematic developments between Saudi Arabia and Canada? And how do you to evaluate Saudi foreign policy. (The siege of Qatar, the war of Yemen, the Canadian crisis)?

 

A: Saudi Arabia behavior toward Canada expresses the same effort to bully foreign governments by threats and intimidating moves whenever its leadership feels that its policies have been criticized or its motives challenged. Canada’s criticism of Saudi behavior is quite appropriate given the international character of human rights standards, especially where, as here, legitimate Canadian interests are at stake.  The Saudi response to Canada is consistent with their belligerent behavior with respect to Qatar, as well as their outrageous tactics of warfare in Yemen, which include repeated bombing of civilian sites and interferences with the delivery of food and medicine in a country where there exists a strong internationally verified likelihood of mass starvation and where the population is suffering from a series of dire health challenges. The Saudi Arabian attack upon and intervention in Qatar is a moral and legal scandal that as with Syria displays the inability of either the United Nations or geopolitical actors to protect the peace and security of small countries that become targets of aggressive warfare.

 

 

Q 7: How do you see the role of Abu Dhabi and its quest to dominate the Gulf region?

 

A: I am not an expert on the behavior of the UAE in the region, but from recent appearances, their behavior resembles and reinforces the hegemonic ambitions of Saudi Arabia, and threatens to cause wider regional warfare by its support of policies of confrontation with Iran. It is important for peace, security, and sustainability that this kind of hegemonic diplomacy by UAE should be abandoned. Among other concerns, the region is very vulnerable to the hazards of global warming, and these aggressive moves cause political preoccupations that divert energies and resources from challenges that are present and need to be addressed before it is too late.

 

Q 8: How would ‘the Deal of the century’ affect Saudi Arabia and the UAE. How do you interpret this deal and its impact on the Palestinian cause and the Arab world?

 

A: Of course, in one respect it is premature to comment on ‘the deal’ as its contents have not been formally disclosed, and are the subject of rather divergent lines of interpretation.

 

It is a serious political mistake to attribute great importance to Trump’s uninformed boast to make ‘the deal of the century.’ All indications is that this is a deal that will never achieve the status of a serious conflict-ending proposal that is balanced and takes the rights of both peoples into account. From all indications, what Trump/Kushner have in mind seems to presuppose the surrender of Palestinian politicalrights, including the right of self-determination and the right of return, receiving in return ‘a bowl of porridge.’ Such a deal is and should be a non-starter in the post-colonial age, and will be rejected by every important Palestinian voice, including those living in foreign countries or in refugee camps in the region. It will be a costly diplomatic mistake for Saudi Arabia and the UAE to be seen as encouraging such a flawed approach to the Palestinian national struggle, an approach that would almost certainly include considering Jerusalem to be under the exclusive sovereign control of Israel. Trump has already indicated that moving the American Embassy to Jerusalem has removed the issue from any future peace negotiations. Israel has revealed and confirmed itself as an apartheid state by recently passing the Nation-State Law of the Jewish People denying equal rights to non-Jews as a matter of law. If Saudi Arabia and the UAE side with the Trump diplomacy that seeks to achieve a final betrayal of Palestinian rights, they will find themselves on the wrong side of history as well as antagonizing Arabs, Muslims, and partisans of human rights and justice throughout the world. Instead of the deal of the century that is a formula for the declaration of an Israeli victory and Palestinian defeat, the governments of the region should be demanding a peaceful solution based on dismantling apartheid structures, ending the blockade of Gaza, and acknowledging the rights of the Palestinian people.  From all appearances this will not be remembered as ‘the deal of the century’ but cast aside as ‘the most fraudulent bargain ever put forward in the century.’

 

 

Q: What is your international low opinion about the latest news published by New York Times describing the electronic spying operations of Israel and Emirites, including the targeting of the Emir of Doha and a lot of political leaders?

 

 

These spyware developments are serious but hardly new in what they seek to achieve. Throughout the history of international relations governments pay money and use a changing variety of methods to gain access to the secrets and private communications of their adversaries. What makes this issue surface as in these recent allegations of the use of spyware against private communications of the leaders of Qatar, including the Emir and his family, is the growing sophistication of the technology and its ability to penetrate what had previously considered to be secure channels of communication, evidently including surveillance of cell phone conversations. Another striking feature of the present atmosphere is the role of private sector profit motives either reinforcing or challenging broader foreign policy positions. For instance, the UAE has no formal relations with Israel, but it happily purchases spyware from an Israeli company, NSO, exhibiting a relationship that could not exist without the knowledge and likely the approval of the Government of Israel.

 

From the perspective of international law, espionage has always had a double reality. On the one side, it is an unlawful form of interference with the sovereignty of a foreign country, which the target government criminalizes with punishments inflicted at its discretion, while the government responsible for the espionage glorifies its agents, or falsely denies their dirty deeds. On the other side, its practice is so common, and taken for granted, that it is difficult to regard allegations of espionage or surveillance as other than propaganda, with the government complaining, pretending to be outraged while itself relying on similar mechanisms to carry out espionage for its own security or to advance its policies.

 

The only sensible approach at this time is to ask whether the spyware being developed so radically alters the privacy of leaders and the security of states as supporting an argument to negotiate a new treaty of prohibition, similar to the prohibition of certain weapons of warfare such as biological and chemical weapons. This is the issue that should be discussed and debated to discover whether there is a

practical way to regulate and implement any prohibition of unacceptably intrusive espionage that can be agreed upon. A novel feature of digital spyware is that can penetrate deeply into the most secret recesses of foreign societies without requiring any physicalintrusion, and therefor it is spyware without spies, and resembles drones on the rather frightening frontiers of warfare where the human presence is eliminated, and the battlefield populated by machines capable of causing devastation of the most severe character.

 

As the Edward Snowden disclosures demonstrated a few years ago, governments are also using this technology to establish elaborate surveillance networks directed at their own citizenry, undermining trust and freedom in democratic societies. Thus the issues raised by the new types of spyware extend beyond espionage as practiced in international relation, and touch upon the nature of constitutional democracy in the 21stcentury.

 

These are important issues for our time that need to be faced as openly as possible, but without a misleading exhibition of legalism and moralism, which thinly veils propaganda designed to blame others for behavior that is common to all international participants.

 

 

 

.