This is the end...

... Il s'est levé
Il a mis
Son chapeau sur sa tête
Il a mis
Son manteau de pluie
Parce qu'il pleuvait
Et il est parti
Sous la pluie
Sans une parole
Sans me regarder
Et moi j'ai pris
Ma tête dans ma main
Et j'ai pleuré.
- Jacques Prévert

This blog will not be continued.

Security Council and International Law in San Francisco, 1945

By Otto Spijkers

Only states officially at war with the Axis powers were invited to come to San Francisco in the spring of 1945 to draft the charter of a new Organization to establish everlasting international peace and security. Delegates came from impoverished and war torn lands to the peaceful and extravagant city of San Francisco, described by a British delegate as “a fantastic world of glitter and light and extravagant parties and food and drink and constantly spiraling talk.” However, the extravagance did not please the delicate taste of the French. A French delegate exclaimed at a monster-dinner, where various orchestras were playing simultaneously in one room: “Je suis arrivé chez les sauvages!”

At the San Francisco Conference, a draft charter of the superpowers (China UK, Soviet Union and the USA) was discussed. One of the more interesting discussions was whether the Security Council was bound to apply international law in maintaining international peace and security. At San Francisco, Egypt proposed an amendment that explicitly stated that the maintenance of international peace and security, which is the prime task of the Council, needed to be done “in conformity with the principles of justice and international law” (see: United Nations Conference on International Organization ‘UNCIO’, vol. 6, p. 23). The Soviet Union disagreed; it believed that the Organization was established to effectively prevent the repetition of a new war, and that the little countries needed simply to trust the superpowers (UNCIO, vol. 1, p. 135). The response of the USA was that the Security Council had two very important functions, and that

these might be characterized somewhat as being the functions of a policeman and the functions of a jury. […] It is our view that the people of the world wish to establish a Security Council, that is, a policeman who will say, when anyone starts to fight, “stop fighting”. Period. And then it will say, when anyone is all ready to begin to fight, “you must not fight”. Period. That is the function of a police man, and it must be just that short and that abrupt; that is, unless at that place we add any more, then we would say “Stop fighting unless you claim international law is on your side”. That would lead to a weakening and a confusion in our interpretation.( UNCIO, vol. 6, p. 29.)

Uruguay agreed that “the world is sick of wars”, but then asked the rhetorical question: must the threat of all wars be cut short at any price? The Uruguayan delegate (Mr. Payssé) answered the question himself:

The mere police function, which pursues the materiality or formality of the order, and which in the popular language of my country is translated into the meaningful expression “You are right, but you are under arrest”, cannot attract our sympathies nor our hopes in the panorama of the reconstruction of the world. The day when there occurs anew the illusion that by sacrificing the rights of the weak in the face of threats by the strong the peace would be saved, on that day the fuse will have been lighted which sooner or later would set off the explosion of war. Injustice is not a propitious atmosphere for peace. (UNCIO, vol. 6, p. 31.)

After this discussion, the Egyptian amendment was put to the vote. The result: 21 for, 21 against; however, for amendments to be adopted in San Francisco, a two-thirds majority was required. The Rapporteur of the relevant Commission hastened to explain this somewhat surprising result: he said that none of the delegates were against justice, but that they felt that “adding “justice” after “peace and security” brings in at that juncture of the text a notion which lacks in clarity.” (UNCIO, vol. 6, p. 394.) The United States, probably regretting the tone of the previous statement, tried to reassure the smaller states a few days later, in a subsequent meeting of the Commission:

We are here [in San Francisco], first of all, to find ways and means to maintain international peace and security throughout the world. But above and beyond that most desirable objective, we are here to lay the first foundation of a new world civilization which in its international relations shall be based upon law and justice and brotherhood, rather than upon brute force. (UNCIO, vol. 6, p. 118.)

However, the relevant article in the UN Charter does not have the sought-after reference to international law. In fact, the Security Council can take measures, in order to maintain international peace and security, obliging member-states to act in violation of international agreements.

Both pictures are taken from the UN Website. The first is of President Truman arriving at the San Francisco Conference; the second is of a "Big Five" meeting taking place at the San Francisco Conference.

The United Nations, Europe and the USA

By Otto Spijkers

In 2003, Jürgen Habermas said: “the crucial issue of dissent [between Europe and the USA] is whether justification through international law can and should be replaced by the unilateral, world-ordering politics of a self-appointed hegemon.” Keeping this remark in mind, I will look at the international law vs. politics debate, related to the United Nations and the "war on terror".

UN Charter as the World's Constitution or as Framework for International Political Cooperation

With some exceptions (one of which is Thomas Franck of New York University School of Law), you will not find American supporters for the essentially European (Kantian) idea of a constitutional world order, with the United Nations at the heart of it, functioning somewhat like a world government. To see the UN Charter as the world’s constitution is essentially a European idea. The American approach is explained by the current US Ambassador to the United Nations, John Bolton. He said:

[T]here is no United Nations. There is an international community that occasionally can be led by the only real power left in the world, and that's the United States, when it suits our interest, and when we can get others to go along, and I think it would be a real mistake to count on the United Nations as if it’s some disembodied entity out there that can function on its own. When the United States leads, the United Nations will follow. When it suits our interest to do so, we will lead. When it does not suit our interest to do so, we will not, and I think that is the most important thing to carry away tonight. (John Bolton, speech delivered at the Global Structures Convocation, on the 3rd of February, 1994, in New York.)

Of course, there is much provocation in these words, but they do seem to represent the view of many Americans.

"War on Terror": Legal or Political Language?

One of the best examples of the international law vs. politics debate is perhaps the meaning of the phrase “war on terror”. Recently, the most senior legal adviser of the US State Department, John Bellinger, toured Europe, to clear up some “misunderstandings”. One of them is the use of the term "war on terror". Americans use it as a political term, while Europeans immediately think of its legal importance. Bellinger clarifies:

I know that the phrase that we have used, the "war on terror," is one that is troubling and is controversial in Europe, and let me distinguish between the political sense of the term and legal sense of the term. Our policymakers use the "war on terror" in its political sense, to mean that all countries need to be against terror, the idea of killing civilians in order to terrorize populations. That's exactly what the leaders at the UN in the UN Outcome Document said last year: We condemn terrorism in all of its forms. When our policymakers say that there is a war on terror, it means that all of our countries need to be against terror everywhere in the world. It doesn't mean, as a legal matter, that we are in a legal state of war with every terrorist everywhere in the world and that we can therefore go shoot people or arrest people on the streets from every terrorist group everywhere. It depends on the circumstances.

The war on terror has laid bare a fundamental difference between American and European values, and the choice of framework (international law or politics) used to fight for them. I don't say that the United States violates international law in the "war on terror" (that could be a topic for another post on this blog), but the USA uses a political, not a legal framework for decisionmaking. “Dialogue” is seen by both parties as the way to solve these differences. Not in order to convince the other, but in order to better understand the other (this is after all, what conversations are all about). In the words of the Dutch Foreign Minister: “The day there is no transatlantic debate is the day I will get really worried. It would mean we are no longer interested in each other’s affairs.”

The first picture is of the International Court of Justice, located in The Hague, Netherlands. The second picture is of John B. Bellinger III, Legal Adviser to the U.S. Department of State.

Who Will Fly the Birds to Freedom?

By Otto Spijkers


In the movie Fly Away Home, a young girl mothers a group of geese; when it’s time for the birds to escape the cold Canadian winter and fly to California, she even escorts them there, using a small airplane (see picture on the left). The geese have names, like Featherbrain and Igor (first she calls the goose Limpy, because it can’t fly, but the name is later changed to Igor in order to avoid a psychological complex). The geese get individual names, because the girl believes they all have different personalities.

That is promising, but do these birds also have legal personality? To be a legal person, with rights and duties, is not something that comes natural. The term natural rights is misleading, because many persons had to struggle in order to get their personality, and ensuing rights. Some humans only recently acquired their natural human rights. And now it is time for the animals. But they have a difficulty none of the suppressed humans had: the animals do not speak the language of the one power that hands out legal personality, and legal rights: man.

Fortunately, some men act as the animal’s advocates, chief amongst them is probably Peter Singer. His book Animal Liberation: A New Ethics for Our Treatment of Animals, is a classic. And there's more: Since 2000, Harvard Law School has a course on Animal Rights. Moreover, there are many animal rights’ initiatives on the internet: the Great Ape Project, which aims (as a first step?) to establish a Declaration on Great Apes, inspired by the UN Universal Declaration of Human Rights. (And yes: there's also an anti-animal rights website.) But most important of all: in the Netherlands we have a new political party participating in the upcoming elections: the Partij voor de Dieren (Party for the Animals) aiming to represent the interests of the animals in Parliament.

When the personality of animals is recognized, that doesn’t necessarily mean we can no longer eat them (after all: they do eat eachother too), or use their fur for winter coats. What it means is that the following will be deemed fundamentally mistaken: to consider - and treat! - animals solely as products, property, or as resources for human purposes.

The website of Stork Food Systems, a Dutch company, is a good example of the way animals are looked at, and treated. On Stork’s website, you can find many machines designed to efficiently kill, defeather, cut up and debone poultry - admittedly, there’s a stunning device too (see picture, and see website ). The “precise slit” of the Killer KS-10, one of Stork’s machines, is heralded: “Inside the killer the knife can apply a perfect slit at the side of the neck thanks to a precise way of positioning the head. The artery and veins are opened while the trachea and gullet remain entirely intact which ensures optimum functioning of the head/trachea puller.” There’s a documentary, “Our Daily Bread”, I have seen only parts of it myself, that shows how our food – read: animals - is processed.

What does an animal need to do in order to avoid being treated as a product? Well, it has to have its personality established, both morally and legally. It needs help from lawyers and philosophers to counter the familair arguments: the argument that animals do not deserve rights because they do not respect the rights of others; or the argument that (some) animals have no soul, no ratio, or no capability to experience pain. Perhaps even more importantly, the animal needs the help of children's books, Hollywood movies (like Fly Away Home), and documentaries (like Our Daily Bread), to create awareness and change the common perception.

Much is at stake. To possess personality is life-saving. However, there may be other ways for an animal to prevent being eaten. The following dialogue suggests that being filthy may do an animal just as much good as having personality:

Vincent (left) and Jules (right)

Vincent: “Want some bacon?”
Jules: “No man, I don’t eat pork.”
Vincent: “Are you Jewish?”
Jules: “No, I ain’t Jewish, I just don’t dig on swine, that’s all.”
Vincent: “Why not?”
Jules: “Pigs are filthy animals. I don’t eat filthy animals.”
Vincent: “Yeah, but bacon tastes good; pork chops taste good.”
Jules: “Sewer rat may taste like pumpkin pie, but I’d never know, because I’d never eat the filthy motherfucker. Pigs sleep and root in shit, that’s a filthy animal. I don't wanna eat nothin' that ain't got enough sense to disregard its own faeces.”
Vincent: “How about a dog? A dog eats its own faeces?”
Jules: “I don’t eat dog either.”
Vincent: “Yeah, but do you consider a dog to be a filthy animal?”
Jules: “I wouldn’t go so far as to call a dog filthy, but they’re definitely dirty. But, a dog’s got personality. And personality goes a long way.”
Vincent: “Ah, so by that rationale, if a pig had a better personality, it ceased to be a filthy animal? Is that true?”
Jules: “Well, we had to be talking about one charming motherfucking pig!”

Pictures are from Fly Away Home, the Great Ape Project, Stork Food Systems, and Pulp Fiction (the dialogue is also from that movie).

Right to Food and Development

By Otto Spijkers


I don't think many people object to the idea that all individuals are equally deserving of an opportunity to secure a decent standard of living for themselves and their family. Unfortunately, due to facts beyond their control, many people do not have these opportunities: no matter how hard they may try, there's no possibility for them to secure an adequate standard of living. International human rights law can change this unfortunate gap between what is and ought to be, primarily by giving individuals a claim-right and others a corresponding obligation.

I will discuss the human rights law related to individual development. Contrary to what many people seem to think, the human rights to development and food are maturing and may, together with the increasing recognition of the individual as having an international legal personality, lead to interesting international claim-rights in the future.

So what is this universal human right to development and food? The first document that is usually referred to is the Universal Declaration of Human Rights. According to this non-binding Declaration, everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, and this includes adequate food and other essentials (Article 25). Moreover, everyone is entitled to a social and international order in which this right can be fully realized (article 28). An international order which prevents billions of people from securing an adequate standard of living, is thus an order that violates the human rights of billions of people (this is Pogge's argument).

However, this Universal Declaration is non-binding, and thus not helpful for individuals who wish to claim something. It may be better to refer to binding international treaties, such as the International Covenant on Economic, Social and Cultural Rights, which is binding on all 149 member-states (the US is not a party). In Article 2 of this Covenant, member states undertake to take steps, individually and through international assistance and co-operation, to the maximum of available resources (which means?), with a view to achieving progressively the full realization of the rights recognized in that Covenant. One of the rights recognized in the Covenant is the the right of everyone to an adequate standard of living for himself and his family, and the fundamental right of everyone to be free from hunger. In order to safeguard these rights, member-states shall take measures individually and through international co-operation to ensure an equitable distribution of world food supplies in relation to need (Article 11). As yet, individuals cannot send complaints to an independent monitoring body when they believe their rights are violated, but this may change in the future, and then both the particular state and the international community as a whole could be held responsible (see E/CN.4/2004/44).

If individuals can ever hope to claim an opportunity to secure an adequate standard of living for themselves and their familiy, then the universal human rights to an adequate standard of living, food and human development, must be developed further. In 1986, the General Assembly adopted the (non-binding) Declaration on the Right to Development (with the US casting the only dissenting vote), which stated unambiguously that the right to development is an inalienable human right. More recently, the Millennium Declaration was unanimously adopted by the then largest-ever gathering of world leaders (189 member-states, most of them represented by heads of state and government). In the Declaration, the world community pledged to “spare no effort to free our fellow men, women and children from the abject and dehumanizing conditions of extreme poverty, to which more than a billion of them are currently subjected. We are committed to making the right to development a reality for everyone and to freeing the entire human race from want.” In an address to the recently established Human Rights Council, Secretary-General Kofi Annan suggested that perhaps the Council’s most important task was to “make the 'right to development' clear and specific enough to be effectively enforced and upheld”. To do so, the Human Rights Council has a special Working Group on the Right to Development.

Meanwhile, as the world is exploring the exact meaning of these human rights and the ensuing responsibilities, and the obstacles and consequences that may follow the recognition of a claim-right for individuals, the US sticks to its own position: in 2002, the US Government made a reservation to a declaration on food. According to the US Government, “the attainment of the right to an adequate standard of living is a goal or aspiration to be realized progressively that does not give rise to any international obligation.” That position seems a bit oldfashioned nowadays.

The first picture is from the Center for Economic and Social Right's website, the second from the Food and Agriculture Organization's website. The final picture is taken by a friend in Geneva.

Michel Houellebecq and Modern Tourism

By Otto Spijkers

Michel Houellebecq was born in 1958 on the French island Réunion, in East-Africa. His parents soon lost interest in him, and thus he was raised by his grandmother who lived near Paris; Houellebecq now lives in Ireland. Houellebecq reached world fame when he published Les Particules élémentaires (“Atomized”, published in 1998), a novel about two half-brothers who are detached from society in two different ways. This book was followed by Plateforme: au milieu du monde (“Platform”, 2001), about international tourism (more on this book below), and most recently La Possibilité d'une île (“Possibility of an island”, 2005), in which Houellebecq paints a picture of the future.

Houellebecq describes the detachment and lack of belonging often associated with present day life. In Plateforme, the book about modern tourism, Houellebecq writes:

Qu’avais-je, pour ma part, à reprocher à l’Occident? Pas grand-chose, mais je n’y étais pas spécialement attaché (et j’arrivais de moins en moins à comprendre qu’on soit attaché à une idée, un pays, à autre chose en général qu’à un individu). […] Je pris soudain conscience avec gêne que je considérais la société où je vivais à peu près comme un milieu naturel – disons une savane, ou un jungle – aux lois duquel j’aurais dû m’adapter. L’idée que j’étais solidaire de ce milieu ne m’avait jamais effleuré; c’était comme une atrophie chez moi, une absence. (Plateforme, p. 339.)

And thus, since there is no compelling reason for loyalty and attachment to one’s own country, modern individuals attempt to escape. Plateforme is really about people’s desire to flee their own community whenever they can:

Dès qu’ils ont quelques jours de liberté, les habitants d’Europe occidentale se précipitent à l’autre bout du monde, ils traversent la moitié du monde en avion, ils se comportent littéralement comme des évadés de prison. (Plateforme, p. 34.)

What these travelers are looking for is unclear. In any case, tourists always desire to keep a certain distance between themselves and the country they are visiting:

Comme tous les habitants d’Europe occidentale, je souhaite voyager. Enfin il y a les difficultés, la barrière de la langue, la mauvaise organisation des transports en commun, les risques de vol ou d’arnaque : pour dire les choses plus crûment, ce que je souhaite au fond, c’est pratiquer le tourisme. (Plateforme, p. 34.)

Moreover, tourists only show a distant interest in the struggles and difficulties of local life. The problem is that this is no different when these tourists return home; the distance always remains, and thus becomes the general condition, described by Houellebecq as follows:

Il se sentait séparé du monde par quelques centimètres de vide, formant autour de lui comme une carapace ou une armure. (Houellebecq, Les Particules élémentaires, p. 109.)

In the end, says Houellebecq, humans can only be attached to one other individual (partner), or a dog. Not to a community (a country), or an idea. His latest book, La Possibilité d'une île, ends with the description of a journey, undertaken by a future man together with his cloned dog, named Fox, to escape his detached existence and become a community-man again. He fails.

Michel Houellebecq and his dog.