“Working for human rights takes patience, perseverance and passion”

Interview with Professor Dr iur. et phil. Alfred de Zayas

Current Concerns: Professor de Zayas, your mandate as the UN Independent Expert on the Promotion of a Democratic and Equitable International Order (appointed by the United Nations Human Rights Council) ended recently. In your final report to the Human Rights Council, you formulated 23 principles concerning the world order (see box on p. 15). In those, you addressed issues such as peace, multilateralism, sovereign equality between states and the right of people to self-determination. What is most important to you?

Professor de Zayas: If these 23 principles are respected, we can hope for a sustainable world order that guarantees development for all countries and above all freedom in the sphere of the individual, freedom also in trade – without unilateral sanctions, because unilateral sanctions are against the spirit and letter of the UN Charter, they are contrary to international law. The only sanctions that technically could be considered legal are those imposed by the Security Council, but these too can lead to enormous human rights violations.

The Security Council is not above international law

The Security Council is not above international law either. It must comply with Article 24(2) of the UN Charter, which stipulates that “In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations”. In other words, the Council is not legibus solutus (freed from the application of the law), but has a specific, limited mandate and must not act against peace or human rights, and if it does so, it is acting ultra vires or against the UN Constitution.

What is the function of a rapporteur?

“He is a professional who must remain impartial, evaluate independently and promote human rights through mediation, negotiation and constructive recommendations. Above all, a rapporteur must be an ‘honest broker’, a mediator who proposes solutions. But the media and sometimes even the Council expect us to play an antagonistic, militant role. More importantly, sometimes we are expected to condemn some states but remain silent about others. There is palpable pressure – from the ‘zeitgeist’, the media, the lobbies, but also from non-governmental organisations. However, we have a code of conduct and we must act independently of any pressure or intimidation.
Unfortunately, there is a vast ‘human rights industry’ and some rapporteurs who do not always act independently – they follow the fashion. In civil society organisations there are some whom I would even call mercenaries of human rights – condottieri.”

Alfred de Zayas

Can you be more specific?

Look at the sanctions against Iraq 1991 – 2003. As early as 1995, Unicef estimated that 500,000 children had lost their lives as a direct result of these sanctions. At the end of the 2003 sanctions, over one million Iraqis were dead because of the sanctions. And that is why the UN Assistant Secretary Generals, the Humanitarian Coordinators for Iraq, Denis Halliday and Hans-Christof Graf von Sponeck, resigned in protest. Halliday said clearly, “It’s a form of genocide.” Hans-Christof von Sponeck published a book on the subject entitled: “A Different Kind of War: The UN Sanctions Regime in Iraq”, which was nothing less than an economic war force the country to its knees.
That is what the United Nations Security Council did, undoubtedly in violation of Article 24 of the UN Charter. It is because the Security Council is not above the law that it too must comply with the UN Charter, must also comply with the principles of human rights and human dignity. It is an aberration when its actions lead to one million deaths. Those sanctions should therefore have been lifted very quickly when it became clear that they lead to death. In other words: one must recognise that economic sanctions kill. Sanctions can only be imposed – for example in times of war in the form of embargos on the sale of weapons – so that the belligerent parties start talking and stop shooting at each other. Sanctions can be imposed prohibiting the purchase and sale of weapons, aircraft, warships, etc. That would be a legitimate form of sanctions. But not economic sanctions, which directly result in a lack of food, medicines, medical equipment, etc., which clearly and necessarily lead to death. Such sanctions are to be recognised as crimes against humanity and prosecuted by the

Criminal Court in The Hague.UN Charter – Constitution of the World

You mentioned the UN Charter. What significance do you give to the UN Charter in today’s world?

According to doctrine, the UN Charter represents the con stitution of the world. That is, the world order, which the states themselves determined in 1945. Article 103 of the UN Charter states that the Charter prevails any other treaty. This means that if a treaty is not in accordance with the UN Charter, then that treaty must be amended or it is null and void. The problem is: the doctrine on the one hand, the reality on the other. Reality doesn’t match the doctrine. We live in a world of hegemons, in a world where the great powers can afford to do anything, where they act against the UN Charter with total impunity, and that will not change in the near future. What worries me most is the corruption of the system, in particular the corruption of the Human Rights Council, the Office of the High Commissioner for Human Rights, the High Commissioner for Refugees, the International Criminal Court, because human rights have been “weaponised” or converted into weapons, weapons used only to eliminate opponents and not to help people gain their rights. In addition, the biggest crimes since 1945 have been committed by the big states. The corruption of institutions and concepts continues.

What crimes are you thinking of?

Perhaps the biggest violations of international law since the Nuremberg trials were the aggression against Yugoslavia in 1999 and later, above all, the aggression against Iraq in 2003. What is particularly disastrous – I would almost describe it as a primordial disaster – is that the United States did not carry out the aggression here alone, but that 43 states, the so-called “coalition of the willing”, joined in. Imagine what that actually means! We have here a revolt against international law, a deliberate rejection of the UN Charter and its philosophy! And led by the states that should have protected international law, that should have guaranteed it. These states have consciously – with open eyes – broken international law. It was a pogrom against law and justice. And no one has been held accountable!

What is a democratic and equitable international order?

“The international order is the order of multilateralism. The world constitution is the United Nations Charter and the priorities are peace, development and human rights. I insist on the spirituality of the Universal Declaration of Human Rights – adopted 70 years ago – and human dignity. A democratic order implies a connection between the will of the people and politics. Therefore, a direct or semi-direct democracy like in Switzerland is the most authentic one. An equitable order includes an equitable distribution of the world heritage of humanity as enshrined in the United Nations Charter and the Declaration of the Right to Development.“

Alfred de Zayas

Credibility of the ICC badly damaged

In such cases the International Criminal Court should actually take action...

What is the International Criminal Court doing? What does this International Criminal Court in The Hague do with the highly paid judges when they only charge Africans, namely relatively minor criminals – compared to the big criminals George Walker Bush, Donald Rumsfeld, Tony Blair, José Maria Aznar, Silvio Berlusconi! We must not forget that millions of people took to the streets in Milan, Naples and Rome in 2003. And Silvio Berlusconi disregarded the wishes of his own people, his own democracy and brought his country into a war of aggression. The same with José Maria Aznar in Spain: Millions of people took to the streets in Barcelona, Madrid and Seville to demonstrate against the war. Nevertheless, José Maria Aznar brings his country to war. This means that the credibility of the system has not only been undermined, it has been eliminated. What is the significance of an International Criminal Court that does not bring these biggest criminals to justice, but only the small-time villains of the world? For me, the crisis we are going through today is a crisis of the ontology of law, of the nature of law: law is degraded into a kind of code that applies only to the losers of a war and only to ousted politicians. It is a code against the weak, but not a code for all – such a pseudo-code helps nobody. We don’t need any of that.

Crisis of disinformation of the people

How could credibility be regained?

If intellectuals in America, England, France, Spain, Germany and Switzerland would get together and demand it. If the media … but the media have been corrupted as well. It’s easy to talk about a mendacious press. But it’s not just the lies, the media actively support and whitewash the crimes of the strong. When I look at the reports in the “New York Times” or the “Washington Post” in 2003 on Iraq or on “El País” or “El Mundo” or “ABC” in Spain on Catalonia, when the government, with brute police force, tried to illegally prevent the referendum on self-determination of 1 October 2017. The media are complicit in the crimes. They have a sophisticated system of disinformation, which is not only lying – and a lot of lying! But even more: They leave out what is important, what is crucial information. The press does not inform, the press indoctrinates in the sense of the powerful, the owners of the press, the conglomerates, be it Murdoch or be it someone else. This is manipulation in order to prevent the democratic exercise of the right to information. One is forced to go to alternative media to inform oneself. Every day, in the morning – besides BBC and CNN – I read “The Guardian”, RT, CCTV, al-Jazera, Telesur on the Internet to get a spectrum of information and then form my own synthesis. But how many are able to do that? How many have the time to deal with six, seven, eight different sources? This is a crisis of the 21st century, a crisis of information – the disinformation of the people. To get out of this situation … one would think that if intellectuals joined forces and demanded it, it should be possible. But how often has Noam Chomsky gathered a number of luminaries and published Open Letters in the New York Times and the Washington Post. And what effect have these letters had? Hardly any. As the deep state, the real power, takes it for granted that it can afford to ignore these voices of alternative thinking people like Noam Chomsky, Francis Boyle, Norman Finkelstein. They can speak as much as they want because we know that the masses have been so indoctrinated that they will not be torn out of their comfort. Therefore, Noam Chomsky poses no real danger to the powers that rule us. The idea that the truth shall make us free is nice – but inoperative.

When more and more people realise the manipulation ...

In this respect, I see hope at best in the opening that we have at our disposal through the Internet, that gradually, more and more people understand that they are being lied to, understand that their governments do not think or act democratically, that they understand that the press is lying and is publishing an unilateral selection of facts. With some difficulty you can arrive at a level of awareness and skepticism that you can no longer be influenced by the “New York Times” or the “Washington Post” or the BBC or Deutsche Welle. I myself am no longer manipulated. When I take the “New York Times” in my hands, I always have a question mark after every article: It may be true or perhaps not. I do not rely on the ethics of journalists, because I do not think they have any. They do what they’re told to do. And if they do something else, they lose their jobs. There are enough examples of journalists who have lost their jobs in America, in England, in France, in Germany. How many political commentators in Germany have lost their jobs as well!
So, if more and more people understand how they have been manipulated and how the press continues to be manipulative, then they will have no choice but to obtain the information for themselves as autodidacts. And then there are alternative groups, in France, in the Netherlands, in Germany, which offer something different, and gradually they are getting more popular. Of course they’re demonised. A few weeks ago, when the elections in Italy were successful with a coalition of alternative parties, they could not form a government because the President of Italy simply pushed the will of the people aside in a highly undemocratic way and said that he would appoint someone else as Prime Minister. It’s an unprecedented scandal! And what does the European Union, which is committed to democracy under the Lisbon Treaty, say? Oettinger says this will teach Italians not to vote for populists. It is such a scandal that an EU Commissioner can speak so brazenly and directly against democracy! And that he was not immediately asked by the press, in particular the “Frankfurter Allgemeine Zeitung”, the “Süddeutsche Zeitung”, the Zeit to resign from office. That would be the ethical, the just, the “honourable” thing to do. But we don’t live in a normal world.

“I would change nothing in my reports”

You have held a very important mandate as Special Rapporteur, and that is not the only part of all your work in the Human Rights Council. It is precisely with this mandate that you have repeatedly advocated more democracy worldwide and a better anchoring of it in the world order. You have written a total of 14 detailed and excellent reports. We have published much out of these in Current Concerns over the years we know each other. A wide range of articles on international law. What do you as an expert think about this time in retrospect?

I wouldn’t change anything in my 14 reports. I only deplore the fact that the system has been set up in such a way that we rapporteurs are, to a certain extent, an assembly of Cassandras. We are allowed to point out problems, but no one thinks of putting our recommendations into practice. There is absolutely no system of implementation (follow up) of our concrete and pragmatic proposals. We’re an alibi, after all. We are the fig leaf not only for the United Nations, but we are the fig leaf for the establishment, for the existing conditions. Our function is basically not to change conditions, but quite the opposite, to leave them as they are, to defend the status quo. Because there are so many powerful forces who want this status quo. They want to cement injustice. They want a system that grants privileges and defends privileges. As soon as you have a rapporteur like myself who relentlessly points out the problems and makes concrete proposals for correction, he will be insulted ad hominem. I may have had the unique honour of upsetting so many people in influential places that I was called a Communist, Marxist, Tsarist, Castrist, but also Fascist, Nazi, Neo-Nazi, Protonazi – I have experienced the whole spectrum of ad hominem attacks in the last six years. Because they just don’t want to deal with the issues. They know: If they get involved in a debate, they will lose because they do not have the arguments. All my reports are quasi mathematical, they have an inner logic, from A to B to C to D, without jumps. I don’t impose anything on my reader. I want to give my reader the facts and coherent arguments. Then I let the reader’s natural intelligence become active so that he can convince himself. It is not my job to convince someone, I am not a prophet and I do not want to be one either. I am a professional, an independent expert who sets out the facts, and then I say that if you apply a coherent logic, you will come to those conclusions yourself, but you can also come to other conclusions. It’s just a vision that I would like to facilitate if people want it.

“Everything is documented”

You documented all this in your reports…

Yes, for example the report on Venezuela. I submitted a report with 189 footnotes and ten annexes. What does that mean? This means that those who are not convinced by the main text can look at the 189 footnotes and annexes. I don’t invent my arguments. Everything is documented. The report has not yet been published, it is now with the governments of Venezuela and Ecuador, because I was on mission to both countries and it is the practice of the Office of the High Commissioner that – before a report is published – the state in question has the opportunity to read it beforehand, and it even has the right to formulate its own comments.

UN General Assembly establishes the High Commissioner for Human Rights

Since when has there been a High Commissioner for Human Rights?

I was present at the World Conference on Human Rights in Vienna in 1993. At this conference, specifically in part 2, paragraph 18 of the Declaration and Programme of Action the proposal was made to establish the institution of the High Commissioner for Human Rights. When we wrote this rather old concept of a High Commissioner for Human Rights into the declaration, we had no idea that the General Assembly would take us seriously and create this institution in their 48th session period! This was done by resolution 48/141 on 20 December 1993. That way the first High ­Commissioner for Human Rights, Jose Ayala-Lasso from Ecuador came to us. I had the honour to work closely with him and I wrote several of his speeches. We had a very positive co operation. He was very much focussed on achievable results and never tried to demonise countries or people. He did not belong to these phony human rights “experts” and rapporteurs who keep making grandiose speeches, he was no show man and had no interest in pleasing the press. He wanted results. He was a calm diplomat who tried to negotiate with the states in order to get things done through his good offices without necessarily embarrassing the state or certain heads of state. Nowadays High Commissioners like grandstanding and condemning, as if this was demonstrating their authority.

You have coined the term human rights industry. What do you mean by that?

A vast human rights industry has indeed developed in which not only the high commissioners are players but also the diplomats, the ministers, the so-called independent experts and the non-governmental organizations, too, who basically do what they get payed for. This is a curse of the modern human rights system – the big transnationals give money to the High Commissioner for Human Rights and expect him to make sure that certain topics get dealt with and others don’t. There is only a certain amount of time and a certain number of people available, and if people get assigned to work on the wrong priorities, then no time is left to sort out the really important ones.
I know all the High Commissioners and I have even written two articles about the institution of the High commission for human rights, one for the Encyclopaedia of Public International Law and one for A Concise encyclopaedia of the United Nations. The first to hold the position was Jose Ayala-Lasso until 1997, then we had an interregnum. Next came Mary Robinson until 2002 who was followed by Sergio Vieira de Mello, who fell victim to an assassination in Bagdad on 18 August 2003. The next interregnum was a very fortunate one, since the appointed “acting” Commissioner Bertrand Ramcharan from Guyana managed the position very well, although he was never given the official title of High Commissioner. He was and is a great intellectual with strong commitment and with a sharp sense for priorities and proportions. I wrote the article about him in the Oxford Encyclopaedia of Human Rights. Bertrand Ramcharan was in charge ad interim for two years, then came the Canadian judge Louise Arbour and then Navanethem Pillay from South Africa. She held the position until 2014 and was followed by the sitting High Commissioner Zeid Ra’ad Al Hussein from Jordan, whose term will end by August this year. We will get a new High Commissioner and obviously this may be reason for some hope, unless a mere politician or manager is appointed, instead of a person with ethics, a person committed to a world order based on human dignity, who is genuinely committed to promote the right to development and our right to be who we are.

Alfred de Zayas with Idriss Jazairy (cf CC No 13/2018). (picture ma)

Final report as a legacy for the Human Rights Council

In your final report you talk about the necessity to introduce a new paradigm.

My final report as of March 2018 ­(A/HRC/37/63) is almost my legacy for the Human Rights Council. We wrongly speak about human rights of the first, second and third generation, but this entails a discrimination, since most people think of the human rights of the first generation as of the only “authentic” ones. The second generation, i.e. the economic, social and cultural rights are regarded as not as important as civil and political rights. And the third generation rights, namely the right to a clean environment, to peace, to development, these are dismissed as something we don’t have the money or the time for, these rights exist merely on paper. But nobody will get active to bring them to life. The important question we must ask ourselves is: for what purpose do we have this whole structure of human rights? Who benefits from it? Human dignity is the alpha and omega, and all human rights must serve the ultimate goal of ensuring the human dignity of all. It is wrong to postulate one human right in opposition to another. All human rights serve the same goal – the human being as God’s creature, endowed with a dignity given by God.

Four categories of human rights

Could you explain that in a bit more ­detail?

The first of my four categories, which should replace the three generations, comprises the rights which enable us to invoke all other rights. These enabling rights are: the right to eat, the right to water, the right to housing. Only under these conditions can I – almost like a luxury – invoke the right to free speech. For an African who is starving, the right to free speech is not his priority.
The second category I call rights of immanence, or rights which contain other rights by necessity, for instance the right to equality. Every single human right contains as a sine qua non this right of legal equality, a right which may not be exercised arbitrarily. I have the same right to property as you, not more but also not less, I have the same right to express my opinions as you, not more but not less either. This principle of equality runs through the whole system of human rights. Then, of course all rights must be interpreted in the liigh of the general principles of law, including the principle not to exercise my rights to anyone’s detriment. My rights must be exercised in a way so that the rights of others are not restricted (sic utere tuo ut alienum non laedas).
Moreover, the principle ex iniuria non oritur ius means that an unjust act, an illegal act cannot give rise to any law or entitlement No one can draw benefits from activities that are wrongful. This is the corruption which I talked about. The human rights get corrupted today, and they get corrupted by the human rights “experts” and non-government organisations.

In what way?

Human rights “experts” are human beings – and, more often than not, careerists. Non-governmentalorganisations need money and because they get paid by the transnational organisations they instrumentalize and corrupt human rights. Because human rights necessarily entail restrictions to the economy and the transnational corporations, these powerful forces are intent to undermine human rights, but precisely by using and corrupting the human rights language. How can human rights be neutralized or somehow made “harmless”? The “industry” has learned how to create “red herrings” or distractions. The idea is that people should not grasp the real intentions of the powerful. The idea is to keep people busy with ancillary matters so that they don’t pay attention to what really matters. This summarises the strategy of those in power and of the transnational corporations – how to neutralise the people. Many non-governmental organisations deserve being described as human rights mercenaries, as condottieri.

What is your third category?

Then we have the procedural rights. They are not indispensable for human life. But they are important for me to develop my personality, to achieve my potential, to make myself complete: the right to information – to correct information, the right to think and to express my opinions, also the right to exercise my religion, as it is necessary for me to become a complete human being, also the right of the family and the protection of the family.

“Being able to live together in mutual respect”

And what is the fourth category?

Then we get to what I call the end rights or outcome rights, that for which the whole structure of human rights has been put inplace. The right to live my dignity as a human being. To live my life the way I am, in my identity. I have the right to simply be me, regardless of zeitgeist or political correctness, without intimidation or self-censorship. The same way you have the right to be you. Without blackmailing, without having to sell oneself. This is the end purpose of the human rights structure that we be able to live together in mutual respect and that each one of us has his or her own identity. No human being should ever be forced to give up his identity or to be threatened, insulted or attacked in his identity.

“Business-friendly” human rights by courtesy of Soros

This is exactly what those corrupting the concepts of human rights and human dignity want to destroy. Human rights as perceived and interpreted by George Soros and many non-governmental organizations, which I know, are “business-friendly” human rights. These are the human rights which are good to make money, to have your Iphones and Ipads, to have your flings, to sell you a pup, if you will. Ruthless, but this is the freedom these people are talking about. I have the freedom to build an industry in which I earn 100 times as much as my collaborators. I have the right to organise a bank or financial consultant firm so that I grant myself a bonus payment of 2 or 3 million at the end of the year while my co-workers have hardly enough to make ends meet. And as soon as I don’t need them anymore, I will of course fire them, without a social net to protect them. So, this is the most important thing for many people like George Soros: the right to property, to private property. The same is true for the philosopher of capitalism, Ayn Rand, who even wrote a book with the title “The Virtue of Selfishness”. The virtue of egoism, that is. And all of that is summarised under the term “right to property is a human right”. Or as former World Trade Organisation president Pascal Lamy phrased it in total honesty: “World trade is human rights in practice”. I have quoted that in my reports. Someone who says such a sentence has not the slightest idea what human dignity means. He is a neoliberal doctrinaire, an ideologue. What he means is that with trade I can make money. And if I make money I can drop some crumbs for the poor. And therefore, trade is human rights. It is a bizarre way to view the world. And if I look back 50 years to when I was a student at Harvard I don’t recall I had ever heard the term “ethics” then. In all my law courses I was not trained as a member of society striving for justice, but as a gladiator fighting other gladiators and the strongest would survive. And this at the end would be called justice. Might makes right, after all. Legal Darwinism.

Idea of human fraternity

How did you get the idea of ethical foundations?

I’m a product of the Jesuits. And I took the New Testament seriously. I read it and thought about it. I think that any human rights system must be rooted in this religious conviction of human dignity. It is essential that we were created as children of the same Father and all other human beings in the world are our brothers and sisters, therefore this beautiful idea of Friedrich von Schiller in his hymn to Joy: “Be embraced, millions! This kiss to the entire world!” This idea of human fraternity. I found that sensible, logical, that we are not a band of robbers, not only sharks or crocodiles or eagles, we live in an orderly society which has been built in millennia of co-operation and where creation, human creation has not always been private property but common good. For thousands of years the rich fruits of human intelligence were distributed for the benefit of all. The UNESCO refers to the world heritage. And the American autochthones (mistakenly called Indians) share this philosophy of human relations and relations between the generations.
One example from our time: The “world wide web”. The www was created by the Center for Nuclear Research (CERN) and given to the world for free. The world wide web was never patented. Had CERN patented the world wide web the United Nations could have been financed for all eternity. If only some tiny portions of this would have been paid…

In several of your reports you thematised the financial transaction tax or Tobin tax on international currency transactions. What has this to do with human rights, with a just and democratic world order on an equal footing?

We have an artificial problem, that human rights programmes cannot be financed because states have the wrong priorities. Were a financial transaction tax established world-wide all of that could be paid for several times. But the banks don’t want that. It is a scandal that these banksters, these robbers have so much power that they have managed for decades to block each initiative to introduce a financial transaction tax. They don’t want to distribute – they basically want everything.
I don’t get it how a human being who already owns, say, 50 million dollars should be eager to own 100 million, or a billion? What for? He will never be able to spend all of that in his entire life. But this money is withdrawn from society and cannot provide for training and education, for literacy programmes all over the world, to secure food for all people on the earth, for anti-malaria programmes, anti-Aids-programmes and to fight all kinds of diseases like Lyme disease which could be extinguished with more money. But the money is not invested for that.

With the right priorities problems could be solved

The problem with the United Nations, the Human Rights Council, the Office of the High Commissioner of Human Rights is that all of them have the wrong priorities. If only the right priorities were set, all problems could be solved and enough money would be available for that. But while this greed of the upper class is there, that they don’t want to pay their taxes …
That is why I dedicated an entire report to the so-called tax havens. It is such a crime that superrich people refuse to give back just a little to the society, a bit of what they have basically stolen. Because for me wealth must have some relation to achievement. Those big stock exchange speculators like Soros or Warren Buffet, who have created absolutely nothing, who only gambled on the markets and became rich that way. But they only took from society and now they pretend to be philanthropists. Especially Soros for me is a dangerous character, because he not only owns fortunes which he doesn’t deserve but on top of that he is bold enough to tell us what human rights are. He wants to somehow take our identities away from us and force us to become numbers. Because this is what I see and dread in the modern world, that we are on the brink to be turned into mere robots. Our function is to buy things to keep the production running, the production of completely useless things which I don’t want, but society wants me to buy. All kinds of stuff are offered to me which I don’t need. And I get called at 5, 6 and 7 in the evening at my private phone to make more offers of things which I don’t need. It is outrageous what kind of perverted society has developed which has the money system as its only basis – material goods is all many people are interested in, no spiritual values like the family or a healthy relationship between man and woman, or the support for the mother-child-relationship, but only: “I want to own the latest iPad, I want to wear the latest sneakers etc.” It is a very fragile and superficial society.

Spiritual values instead of material goods

One should make it a habit to study all those famous paintings from the Middle Ages, with topics especially like “memento mori” (remember that you have to die) or the “Dance of Death”. Because when death strikes he will catch us all, rich or poor, king or beggar, pope or atheist. This awareness has somehow disappeared from our modern society. I wouldn’t be surprised to find out that most youths have no clue if I asked them about the meaning of such a dance macabre painting and which cultural role it had played in Europe. The same, if they see a painting with a skull and somewhere is the phrase “memento mori” or “vanitas vanitatum” (symbolising the Judaeo-Christian belief about the vanity of all earthly things). They don’t grasp how feeble life is and how useless vanity is, these extreme show effects which we see and the urge to catch the latest fashion products …

Report about the right of people to self-determination

But back to my task as a rapporteur: Several of my reports I regard as particularly important and influential in the future. The one report which probably got quoted most often and had the greatest impact is my report to the UN General Assembly on the right of  self-determination. The issue is not de-colonisation alone but the fundamental right of a people to shape their own future. There are peoples who have received this right without war. Thus, when the Soviet Union fell apart, many states gained their independence without war. In the case of Yugoslavia, there was hardly any fighting in Slovenia. Slovenia could break free easily. It was different in Croatia, it was different in Bosnia and Herzegovina but Slovenia got away with a lot of luck. But there have been other nations who suffered tremendously to maintain their right to self-determination but without success. Examples: The Igbo people from Biafra in Nigeria were massacred, more than 1 million victims, the Tamils in Sri Lanka, more than 100,000 victims. Of course the Tamils have the right to their own state, of course the Igbos have the right to their own state. But the central governments will never tolerate that and they are willing to massacre their own population, basically commit genocide, in order to maintain their so-called territorial integrity. The Igbos had a lot of petrol. The transnationals, mainly Shell, Royal Shell, bear a lot of responsibility for the genocide against the Igbo people. The Igbos never achieved their autonomy. The people of Bangladesh did achieve it, but the war between Pakistan, India and Bangladesh claimed up to 3 million human lives.

UN needs a preventive strategy to solve conflicts

Which task do the UN have – or should have, in this regard?

It is their task to foresee developments, have a strategy, broker dialogues between central governments and people aspiring to self-determination, so that wars may be avoided. It is a preventive strategy, and since I mentioned the Igbos – one glance at the map of Africa shows that all those borders make no sense, they have been drawn arbitrarily by European colonial powers, which means that ethnic groups, regions, religious groups, cultural groups have been divided irrationally. As soon as those people have reached a level where they understand what colonialism did in fact do to them, when they grasp the disadvantages of being colonialised, they will want to change these borders, which is entirely natural. It is their right. What the United Nations should do is to anticipate these developments, make sure that matters are settled in advance so that no regional wars will break out. But the United Nations do nothing in this regard and continue addressing far less important issues. And where war is already raging they hardly do anything to deal with the conflicts and bring them to an end through negotiation. Of course I think of Yemen, I think of Gaza and I think of Syria.

“I continue teaching”

Where will you set your priorities in future once your mandate has ended?

Firstly, I continue teaching. The relation with the younger generation is very invigorating for me. I enjoy discussion with people, but not in a top-down, arrogant manner but talking with my students quite normally, although I know that I am the teacher and they are the students. Although I know I could be not only their father, but their grandfather, but that doesn’t prevent me from establishing a human bond with my students which is always a relation of trust. I am still in contact with students from the early 1980ies, i.e. 37 years ago. By now they have families and children, of course. I met them as thoughtful human beings who gave a lot to me in turn. There is a nice sentence by Seneca: “Docendo discimus” – we learn by teaching, there is a lot of truth in that. I taught many things to my students, but I also got very much back from them. Many of my students did not agree with me at first, they questioned my positions and challenged arguments I had proposed to them. But I always allowed them to voice totally different opinions, so-to-speak. I always promised to them – and kept my promise – never to penalise them for having a viewpoint different from mine. I told them: You have a right and an obligation to have your own opinions, even if I disagree with them. The only thing I demand from you is that you learn how to formulate your ideas in a logical, well-structured paper in order to try to convince me that this is the correct opinion or the correct interpretation of the law or of a given situation. I always stuck to this principle even in some cases where the disagreements could not be resolved to the end. What I demand is the authenticity of argumentation. The arguments should not just echo what I told the students in class. They are supposed to somehow have internalised that, have digested the materials and enriched them with their own experiences. I think I succeeded in training quite a few of my students who will make valuable contributions in future. What I also planted in them is an obligation towards truth, an obligation to keep truthfulness in themselves, not to act as opportunists. I told them: had I chosen the opportunist path I would probably have climbed much higher on the ladder in the United Nations. But what for? I would not have achieved more on a higher post but would have been turned into a puppet of still higher functionaries. I would have followed orders from high above instead of doing what I thought was ethically correct or important.
That is the one point: I will continue teaching. Another point is, I get many invitations to participate in United Nations panels and this will probably stay the same in the next few years. I also got invitations to give advise to organisations or governments.

Enjoying literature and music

Another point: I have already published a book with translations of Rainer Maria Rilke into the English language, which was well received by the public. Translating is an activity which appeals to me as beautiful, as aesthetic. It is some sort of therapy for me. I enter the beautiful world of Rainer Maria Rilke, of Joseph von Eichendorff, of Hermann Hesse. For two or three hours during which I translate, I am happy, I am fulfilled. Because I am dealing with something beautiful and I have the chance to create something beautiful from it in the English language. Ocassionally I also translate these poems into French and Spanish. Time runs like crazy doing that. During translation the head is totally occupied. All you notice are these images that the poems evoke and these colours and nuances of the words. I enjoy this activity very much. There will be plenty of more translations, but I will always choose poets who mean something to me. I could not picture myself translating… well, there are quite a few so-called poets around these days, just like with so-called painters, but their productions don’t resonate with me.
The last thing which I will probably tackle again is music. I used to play the piano and I have one here at home for my wife. But I rarely sit down to play because I am not satisfied with my performance and I know it takes a lot of work to once again be able to play decently. But now I will have sufficient time to play. This will be a rewarding activity for future years. Music brings a lot of joy to me. I could imagine no better life than that of a composer who writes symphonies and operas, this must be even better than being a musician. Because if I reproduce music as a musician, I can immerse my soul into it, but at the end of the day it still is the music of Beethoven, Brahms and Schumann and not my own creation. Beethoven for me is the one human being who gave the most enlightenment to me and to the world. Notwithstanding my love for Wagner and Schubert, Brahms and Richard Strauss – Beethoven has something which is greater than all of them, I think, and considering that this man not only had an incredible amount of talent, he also had the satisfaction to see this talent translated into symphonies, masses and operas – this must be absolute happiness, to know that you have created something which will remain. This is more than any writer can give to the world. I believe Beethoven will remain relevant much longer than Schiller or Georg Büchner. Music moves directly, music is this universal language which can make you happy where ever you are. If one could start all over again from scratch, provided that would be remotely possible, and if we only had more talent … !

What is your final word as a rapporteur?

I am thankful. I am grateful to have had the opportunity to contribute to the cause of human rights. I thank my assistants and my many colleagues. However, there is no final word – I will continue to teach Human Rights and international law at the Geneva School of Diplomacy and as guest professor at several universities. I am still convinced that enormous progress has been achieved since 1945 and that a democratic and just international order is indeed possible. Working for the human rights requires patience, perseverance and passion. Gutta cavat lapidem!

Thank you so much, Professor de Zayas, for this talk.     •

Alfred de Zayas’ 23 principles of international order

The reports of the Independent Expert have been guided by numerous General Assembly resolutions, notably resolutions 2625 (XXV) and 3314 (XXIX), which, together with the Charter, propound a vision of a democratic and equitable international order. Based on the work of the mandate holder, the following should be generally recognized as principles of international order:

  1. Pax optima rerum.1 The noblest principle and purpose of the United Nations is promoting peace, preventively and, in case of armed conflict, facilitating peacemaking, reconstruction and reconciliation;
  2. The Charter takes priority over all other treaties (Article 103);
  3. Human dignity is the source of all human rights, which, since 1945, have expanded into an international human rights treaty regime, many aspects of which have become customary international law. The international human rights treaty regime takes priority over commercial and other treaties (see A/HRC/33/40, paras. 18–42);
  4. The right of self-determination of peoples constitutes jus cogens and is affirmed in the Charter and in common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The rights-holders of self-determination are peoples. The duty bearers are States. The exercise of self-determination is an expression of democracy and attains enhanced legitimacy when a referendum is conducted under the auspices of the United Nations. Although the enjoyment of self-determination in the form of autonomy, federalism, secession or union with another State entity is a human right, it is not self-executing. Timely dialogue for the realization of self-determination is an effective conflict-prevention measure (see A/69/272, paras. 63–77);
  5. Statehood depends on four criteria: population, territory, government and the ability to enter into relations with other countries. While international recognition is desirable, it is not constitutive but only declaratory. A new State is bound by the principles of international order, including human rights;
  6. Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State. Already in 1510 the Spanish Dominican Francisco de Vitoria,2 Professor of Law in Salamanca, stated that all nations had the right to govern themselves and could accept the political regime they wanted, even if it was not the best;3
  7. Peoples and nations possess sovereignty over their natural resources. If these natural resources were “sold” or “assigned” pursuant to colonial, neocolonial or “unequal treaties” or contracts, these agreements must be revised to vindicate the sovereignty of peoples over their own resources;
  8. The principle of territorial integrity has external application, i.e. State A may not invade or encroach upon the territorial integrity of State B. This principle cannot be used internally to deny or hollow out the right of self-determination of peoples, which constitutes a jus cogens right (see A/69/272, paras. 21, 28, 69 and 70);
  9. State sovereignty is superior to commercial and other agreements (see A/HRC/33/40, paras. 43–54);
  10. States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations (Charter, Art. 2 (4));
  11. States have a positive duty to negotiate and settle their international disputes by peaceful means in such a manner that international peace, security and justice are not endangered (Charter, Art. 2 (3));
  12. States have the duty to refrain from propaganda for war (International Covenant on Civil and Political Rights, art. 20 (1));
  13. States shall negotiate in good faith for the early conclusion of a universal treaty on general and complete disarmament under effective international control (A/HRC/27/51, paras. 6, 16, 18 and 44);
  14. States may not organize or encourage the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State;
  15. States must refrain from intervening in matters within the national jurisdiction of another State;
  16. No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind;
  17. No State may organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State;4
  18. The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention;
  19. The ontology of States is to legislate in the public interest. The ontology of business and investment is to take risks to generate profit. A treaty that stipulates one-way protection for investors and establishes arbitration commissions that encroach on the regulatory space of States is by nature contra bonos mores. Hence, the investor-State dispute settlement mechanism cannot be reformed; it must be abolished (see A/HRC/30/44, paras. 8, 12, 17 and 53, and A/70/285, paras. 54 and 65);
  20. States must respect not only the letter of the law, but also the spirit of the law, as well as general principles of law (Statute of the International Court of Justice, Article 38), such as good faith, the impartiality of judges, non-selectivity, uniformity of application of law, the principle of non-intervention, estoppel (ex injuria non oritur jus), the prohibition of the abuse of rights (sic utere tuo ut alienum non laedas) and the prohibition of contracts or treaties that are contra bonos mores. It is not only the written law that stands, but the broader principles of natural justice as already recognized in Sophocles’ Antigone, affirming the unwritten laws of humanity, and the concept of a higher moral law prohibiting unconscionably taking advantage of a weaker party, which could well be considered a form of economic neocolonialism or neo-imperialism (see annex II below);
  21. States have the duty to cooperate with one another, irrespective of the differences in their political, economic and social systems, in order to maintain international peace and security and to promote international economic stability and progress. To this end, States are obliged to conduct their international relations in the economic, social, cultural, technical and trade fields in accordance with the principles of sovereign equality and non-intervention. States should promote a culture of dialogue and mediation;
  22. The right to access reliable information is indispensable for the national and international democratic order. The right of freedom of opinion and expression necessarily includes the right to be wrong. “Memory laws”,5 which pretend to crystalize history into a politically correct narrative, and penal laws enacted to suppress dissent are anti-democratic, offend academic freedom and endanger not only domestic but also international democracy (see A/HRC/24/38, para. 37);
  23. States have a duty to protect and preserve nature and the common heritage of humankind for future generations.

1     Peace is the highest good (motto of the Peace of Westphalia, 1648).
2     See http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1325&context=ilj.
3     See www.academia.edu/7222085/The_Foundations_of_Human_Rights_Human_nature_ and_jus_gentium_as_articulated_by_Francisco_de_Vitoria.
4     Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. I.C.J. Reports 1986, p. 14. Available at www.icjcij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf .
5     Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and expression, para. 49.

Alfred-Maurice de Zayas (United States, since 2017 Swiss citizen) studied history and law at Harvard, where he obtained his J.D. He practiced corporate law with a New York law firm. He obtained a doctorate in history for the University of Göttingen in Germany.
Alfred de Zayas has been visiting professor of law at numerous universities including the University of British Columbia in Canada, the Graduate Institute of the University of Geneva, the DePaul University Law School (Chicago), the Human Rights Institute at the Irish National University (Galway)and the University of Trier (Germany). At present he teaches international law at the Geneva School of Diplomacy.
In 2009 de Zayas was a member of the UN workshop that drafted a report on the human right to peace, which was subsequently discussed and further elaborated by the Advisory Committee of the Human Rights Council. He is also a signatory of the Declaración de Bilbao and Declaración de Santiago de Compostela on the Human Right to Peace. He served as a consultant to the Office of the High Commissioner for Human Rights on the issue of mercenaries.
De Zayas is an expert for civil and political rights and has published nine books on a variety of legal and historical issues, including “United Nations Human Rights Committee Case Law” (together with Jakob Th. Möller, N.P. Engel 2009), and has been co-author and co-editor of numerous other books, including “International Human Rights Monitoring Mechanisms” (together with Gudmundur Alfredsson and Bertrand Ramcharan). His scholarly articles in the Max Planck Encyclopedia of Public International Law, Oxford Encyclopedia of Human Rights and Macmillan Encyclopedia of Genocide, encompass the prohibition of aggression, universal jurisdiction, the right to the homeland, mass population transfers, minority rights, refugee law, repatriation, legal aspects of the Spanish Civil War, indefinite detention, Guantanamo and the right to peace.
Alfred de Zayas was appointed by the UN Human Rights Council as the first Independent Expert on the Promotion of a Democratic and Equitable International Order with effect from May 2012. After six years of service, his mandate ended in May this year.
He is fluent in six languages and has published a book of Rilke translations with commentary (“Larenopfer”, Red Hen Press 2008) and is completing the translation of Hermann Hesse’s “Das Lied des Lebens”.
From 2002-2006 he was Secretary-General, from 2006-2010 President of PEN International, Centre Suisse romand. He was member of several advisory boards, including of the International Society of Human Rights (Frankfurt a.M.), Zentrum gegen Vertreibungen (Berlin), the International Human Rights Association of American Minorities (Canada) and of the Conseil Scientifique of the Académie International de droit constitutionnel (Tunis). He has received several awards, most recently the “Educators Award 2011” of Canadians for Genocide Education.