Íslenska leiðin - 01.11.2003, Blaðsíða 40

cases. That has been quite a transformation in the
traditional European order. I don't think that
anyone would question that the sovereignty of
France, the Netherlands and the U.K. is less now
then it was prior to the institution of those human
rights courts and laws. The United Nations system
is weaker, but it does have a human rights
committee that questions state representatives,
who must submit written reports about their
compliance with the convention against torture,
the convention against racial discrimination.
There are individual complaints now that
individuals can bring against governments.
Governments very rarely criticize one another, but
even then states like Turkey have become subject
to criticism by other countries who are parties to
these U.N. treaties.
It is a very credible system of law that
doesn't send people to jail very often, although of
course the doctrine assumes its potential. But
more often it is enforced by diplomacy, by
pressure, occasionally by economic sanctions and
on various occasions by military force with
humanitarian intervention.
So that was a long question with a long
answer, but we still haven't referred to the
universality of human rights, which is indisputable.
The Universal Declaration of Human Rights was,
true, written by elites from a few countries. But it
has been reaffirmed and incorporated in so many
state laws and constitutions that there is no longer
any question about the right that individuals can
speak freely, to practice their own religion, and so
on. There is more debate about the universality of
some economic rights, of the right to food, to a
job, et cetera, because those cause governments
to have duties to incur expenses. The United
States has been more reluctant to undertake those
economic and social rights. But in Europe, and in
many other parts of the world, they are regarded
as interdependent and indivisible with political and
civil rights on one hand, and economic and social
rights on the other. Being joined together, neither
one is fully achievable without the other.
Would you say that civil rights are inherently
universal, even without, for example, a
document like the Universal Declaration of
Human rights, or are they the product of
politics and legal wrangling?
Very good question. I am of the natural law school
that thinks individuals have rights, whether or not
they are written down on a piece of paper. We had
that philosophy in the birth of our nation in the
Declaration of Independence, asserted with a god
given or a natural law right to throw off tyranny, to
be free. Similarly, when Martin Luther King was
protesting the segregation of races in the United
States, although the written law was not always on
his side, he appealed to a higher law, as did
Mahatma Ghandhi. Given the universal aspirations
for personal dignity, for self-government,
democratic participation, I think you find common
aspirations among people everywhere. There
might be disagreement about details, but there
are basic rights that would exist in the absence of
the Universal Declaration.
Your question is good because of the
recognition that law and politics are not distinct
fields, that they are intertwined. It is political
power that dictates what the legal rules are. It is
often up to political considerations about which
laws get enforced. There are, given human
failings, choices to be made, for we have
inadequate resources and disagree about which
rights deserve the highest priority. So we do that.
In some societies the economic entitlements are
regarded as being more important than the right
of assembly or freedom of press. The problem is
I think, that the world needs to reach a point
where we all recognize that we can't have one
without the other, that they do go together.
Is the unilateral US policy of pre-emption a
new phenomenon? Would you regard it as a
just policy, for the defense and protection of
US interests and safety, or as a hobbesian
pre-cursor to political strife in the
international arena?
It is not new. We had first in our own hemisphere
asserted the right to keep order in our own back
yard. For more then a century the U.S. has
intervened in places like Panama, Haiti and
Guatemala. It was Bill Clinton who had a secretary
of defense, Les Aspin that used the word pre-
emption. It did not get much press attention, but
now when the Bush administration has put it in a
strategy document, it has become more commonly
understood. I do not believe that it is legal. In the
1830s the U.S. secretary of state, Daniel Webster,
articulated the customary rule of international law
about anticipatory self-defense. The requirement
is the fear of an imminent attack. It must be on
the verge of happening. The way that the strategy
document uses the term pre-emption is incorrect.
They are describing a preventive war, not a
preemptive war. The U.S. has insisted that it, as a
major power, has a right to modify customary
international law because state practice is what
gives us customary law. That is a terribly self-
defeating doctrine because, if the U.S. can pre-
empt, than so can India, and so can China, and so
can Russia, et cetera. That causes disorder. I
think that this is not only bad law, but it is bad
policy.
As to Hobbes, I am accused of sometimes
being a realist when I view myself as an idealist. I
think that we can, through reason and good
political skill, collaborate to achieve the kind of
global institutions that have been successful at the
domestic level, in which ambition confronts
ambition. We need checks and balances that
would ensure that we do not have a tyrannical
world government. Nevertheless, the current
state of world affairs does appear more anarchical
then even during the cold war, when there was a
semblance of a balance of terror that helped us
avert a major global conflict. There are some who
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