'I ... regret that ours is a dysfunctional democracy, an oligarchy run by big business and Wall Street.' Photo: iStock

Since the United States became the most infected country in the world and President Donald Trump’s administration visibly prefers demonizing China and blackmailing the World Health Organization, instead of taking prudent steps to tackle the Covid-19 pandemic on the ground, Professor Alfred de Zayas was interviewed in an effort to make sense out of this difficult situation.

Alfred de Zayas is professor of international law, former secretary of the UN Human Rights Committee, and the UN’s independent expert on the promotion of a democratic and equitable international order from 2012 to 2018. This is the first part of the interview. For Part 2, click here.

Adriel Kasonta: As a person who served as the first UN independent expert on the promotion of a democratic and equitable international order (2012-2018), what do you make out of the current state of democracy in the world and, most important, the international order?

Former US president Jimmy Carter and Professor Alfred de Zayas. Photo: Alfred de Zayas’ personal archive

Alfred-Maurice de Zayas: You mean the international disorder! Yes, we have the UN Charter, which should serve as a kind of world constitution, but we have the great powers and the transnational corporations that pull the strings and exercise daily influence on our lives without transparency and accountability, without any appropriate democratic controls. We would think that in the post-World War II world a “rules-based international order” would have emerged, but we are very far from achieving that.

“Democracy” means the correlation between the wishes of the population and the concrete actions taken by their “democratically” elected governments, all branches of government executive, legislative and judiciary. I am a US citizen and regret that ours is a dysfunctional democracy, an oligarchy run by big business and Wall Street.

It really does not matter whether Republicans or Democrats are in office. The truth is that those who are elected do not govern and those who do govern are not elected. In the United States, senators and congressmen/women do not represent the electorate but the lobbies, notably the military industrial-complex, the banking and insurance sectors, the real-estate speculators, the pharma industry.

AK: How do you consider President Donald Trump’s reaction to the Covid-19 outbreak?

AdZ: Trump bears personal responsibility for the tragedy that has hit the United States. Let’s not forget that he initially dismissed the danger. Later he changed his narrative. Of course US intelligence services did inform him, but he failed to act. Scapegoating China and the WHO is easy.

AK: What do you make out of Trump’s critique of the World Health Organization?

AdZ: Dr Tedros Adhanom Ghebreyesus is a medical doctor with extensive experience, and like all of us, he can make mistakes. I think the WHO did not handle the pandemic at 100% efficiency, but we also know that the UN and WHO are woefully underfunded. You get what you pay for.

AK: Niccolo Machiavelli’s advice was to “never waste the opportunity offered by a good crisis,” yet Seneca informs us that “a disaster gives us the opportunity to practice virtue.”

AdZ: Trumpism is Machiavellism. I adhere to Seneca’s calamitas virtutis occasio (De Providentia 4, 6). The problem is that in the United States we have a culture of taking advantage of the other guy. In the US people speak of “competition,” but there is never a level playing field – all is rigged.

AK: Several private companies refused to deliver anti-Covid-19 assistance to Cuba out of fear of suffering penalties from the US Treasury Department, yet the US itself bought ventilators from a Russian company.

AdZ: The US systematically practices double standards and instrumentalizes international law “à la carte.” Blocking medical assistance to Cuba is nothing less than murder.

The whole system of sanctions against Cuba, Nicaragua, Venezuela, Syria, Iran etc has already made tens of thousands of victims. Civil and penal responsibility also applies to private actors, because a private actor cannot withhold life-saving equipment and medicines simply for fear to have to pay penalties to the US Treasury – that’s part of business risk.

This problem can be solved if the state of nationality of the entrepreneur reimburses him/her and then exercises diplomatic protection, assumes the private claim and demands redress from the US. The problem is that the EU and many other countries have connived with the United States. We are witnessing an assault on a rules-based international order.

AK: As we know, the US sanctions against Venezuela, Cuba, Syria, Iran etc have already killed many people by significantly limiting their access to medicines. Does it mean, from the legal point of view, that these actions may be labeled as crimes against humanity?

AdZ: US sanctions certainly constitute crimes against humanity under Article 7 of the ICC statute. A case is currently before the ICC [International Criminal Court] concerning the sanctions against Venezuela. This case was filed by Venezuelan Foreign Minister Jorge Arreaza on February 13, and Arreaza explained his initiative before the UN Human Rights Council on February 24.

The sanctions can also be seen from the perspective of the 1948 Genocide Convention, Article II of which defines the crime. Surely the sanctions can be subsumed under the concept of genocide and it would be entirely possible to bring the case to the International Court of Justice pursuant to Article IX, which stipulates that any dispute about the application of the convention is automatically under ICJ jurisdiction.

AK: Can America be ever trusted again, knowing that the American establishment made false accusations against Saddam Hussein, Muammar al-Gaddafi, and Bashar al-Assad in the past?

AdZ: Although, objectively, statements from the United States have little credibility, the world still defers to US power. The CIA is a notorious “fake news” factory, but the corporate media acts as a sounding board for all the nonsense.

AK: Can we argue that some of the news about China circulating in the Western mainstream media constitutes “hate speech”? Can China effectively sue these media outlets?

AdZ: Yes, there are hate-speech laws in many countries, but such laws are incompatible with that fundamental right of all of us – the right to freedom of expression.  Even if a person has obnoxious ideas, it is dangerous to try to suppress them, because who can do so objectively? 

As Juvenalis wrote, “Quis custodiet ipsos custodes?” Who will guard the guardians? We really do not need a worldwide censor or an Orwellian Ministry of Truth. “Hate speech” laws are subject to abuse. In principle China could sue, but the problem is to find a tribunal that would exercise jurisdiction.

AK: There was the colossal international damage caused by Fukushima and Chernobyl, but when these occurred the world showed solidarity. When it comes to Wuhan, we are witnessing xenophobia and racism, not only coming from the mouths of main Western politicians, but also being sanctified by the mainstream media outlets.

AdZ: Money rules the world. And a great many citizens of the US, Canada, UK, France, Germany – hate China because of its economic success. The idea is to knock out China as an economic rival, to “colonize” China and make Chinese industry work for us. Racism and xenophobia is not the source of the problem – but a useful tool to demonize China.

AK: Does the plan to sue China for trillions of dollars have merit in international law? Is it true that China has violated the 2005 International Health Regulations?

AdZ: No merit in law or in fact, no precedent in international law. China has not committed a tort. An unbiased observer may think that China was perhaps too cautious at the outset of the pneumonia cases in Wuhan – tried to avoid panic, investigated, called upon the WHO for help. Retrospectively we think that they could have acted more expeditiously. But if the virus had originated in the United States, in Russia, in Egypt, would these countries have acted faster?

The WHO’s International Health Regulations constitute a useful framework for international cooperation in exchanging information and taking coordinated action against pandemics. It consists of 66 articles and nine annexes. At present there are 196 state parties.

IHR is not a convention with “strict liability,” nor does it envisage any kind of “punishment.” Had there been any “strict liability” in connection with the speed of sounding the alarm, no country would have signed the agreement, least of all the United States.

AK: Following the logic of the US politicians, if China were to be held responsible for Covid-19, would the US not be responsible for the outbreak of H1N1 in 2009? And what about the outbreak of HIV/AIDS in Congo and Haiti?

AdZ: We do not need a ping-pong of accusations and counter-accusations. We need international solidarity, good faith and ethics. Litigation is no cure for pandemics. The blaming game helps no one.

Professor Alfred de Zayas studied history and law at Harvard University; he obtained his JD at Harvard and a PhD in history from the University of Göttingen in Germany. He served as UN independent expert on the promotion of a democratic and equitable international order 2012-18 and was before that secretary of the UN Human Rights Committee and chief of the Petitions Department at the Office of the UN High Commissioner for Human Rights. He has published nine books and more than 200 scholarly articles. He is a retired member of the New York Bar and the Florida Bar. Currently he serves as professor of international law at the Geneva School of Diplomacy.

Adriel Kasonta

Adriel Kasonta is a London-based political risk consultant and lawyer. He is an expert at the Russian International Affairs Council (RIAC) in Moscow and former chairman of the International Affairs Committee at the oldest conservative think tank in the UK, Bow Group. Kasonta is a graduate of London School of Economics and Political Science (LSE). You can follow him on Twitter @Adriel_Kasonta.