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Chomsky and Enlightened Law


Many thanks to Jim Hicks of the Massachusetts Review, Amanda Minervini of Salem State University, and Adam Sitze of Amherst College for their very engaging comments about my book, and for the time they took to read it and write about it.

I would like to focus on the assertion by Adam Sitze (in Part One) that Chomsky’s work contains a contradiction due to what Sitze refers to as “the imperial premises” of international law that underlie “the anti-imperial desires that animate [Chomsky’s] criticisms.”

The main focus of Chomsky’s references to international law throughout his work has been UN Charter Article 2(4), which prohibits the threat and use of force by states in the conduct of their international relations. The prohibition against force is widely viewed as the cardinal rule of international law and a peremptory (incontrovertible) norm of international law.

Furthermore, and unusually until he and a few others like Richard Falk began to do it, Chomsky applied this fundamental rule of international law first and foremost to the conduct of his own country—the post-WWII imperial power. And he did so consistently, beginning in the 1960s, from Vietnam onward.  

In other words, there is a nearly fifty-year record of Chomsky’s opposition to the U.S. use of force and the imperial foreign policy which that use of force served. Thus, it seems that this core component of international law, and Chomsky’s consistent invocation of it, are anti-imperialist in principle as presented in the Charter and in practice as deployed by Chomsky, with no basis of an “imperial premise.” 

A brief analysis of UN Charter Article 2(4) also supports this assessment. In an authoritative analysis of international law and the use of force as applied to Vietnam in the 1960s, the Lawyers Committee on American Policy toward Vietnam, chaired by Falk—the Albert G. Milbank Professor of International Law and Practice at Princeton University at the time—and which included Quincy Wright, Hans Morgenthau, Stanley Hoffmann, Richard Barnet, Burns Weston, and others, invoked Article 2(4) as the basis of its opposition to what was clearly an imperial adventure in Vietnam and elsewhere in Indochina at the time.

The legal brief by the Lawyers Committee was issued in 1967 in response to an attempt by President Johnson’s State Department to justify U.S. policy in Vietnam on the basis of international law. While responding in detail to the legal assertions made in the State Department memorandum, the Lawyers Committee wrote: “One of the abiding Principles of the Charter of the United Nations is the obligation of its Members to eliminate the use of force and even the threat of force in international relations.” The Lawyers Committee continued: “The State Department memorandum interprets Article 2(4) with curious superficiality. Calling this Principle ‘an important limitation on the use of force,’ the Memorandum creates a misleading impression. It is not a ‘limitation’ but the keystone of modern international law. Threat or the use of force are not ‘limited’; in principle they are outlawed.”

The Lawyers Committee, citing UN Charter Article 39, commented further: “The Charter acknowledges that, for the very purpose of maintaining peace, various measures, and ultimately force, may be required. It confers the competence to use force upon the Security Council, thus making force the instrument of the world community, and not of individual states.” And: “The essential meaning of this rule of international law (Art. 39) is that no country shall decide for itself whether to use force—and, especially, whether to wage war through an intervention in a foreign conflict.”

Citing UN Charter Article 51, the Lawyers Committee continued: “The Charter does recognize, however, that grave emergencies may occur when an immediate military reaction may be necessary to prevent disaster. For these special emergencies, the Charter creates a very narrow exception to the prohibition of unilateral force.” The Lawyers Committee observed further: “Article 51 constitutes, as has been emphasized by many international lawyers, the single exception to the keystone principles of the Charter and to contemporary world order—that is, the prohibition of unilateral use or threat of force. It is an accepted canon of construction that if a treaty grants an exception to a basic rule, such exception must be interpreted restrictively.”

Importantly, the Lawyers Committee continued:  

The right of self-defense under the Charter arises only if an “armed attack” has occurred. The language of Article 51 is unequivocal on this point. The term “armed attack” has an established meaning in international law. It was deliberately employed in the Charter to reduce drastically the discretion of states to determine for themselves the scope of permissible self-defense both with regard to claims of individual or collective self-defense. . . . The rationale is persuasive: other forms of aggression, especially “indirect aggression,” are so difficult to define and to ascertain, that too many situations might occur in which states, in good faith or bad, would claim the right of self-defense and thereby expand and intensify warfare.

A leading legal authority at the time, Hans Kelsen, concurred: “It is of importance to note that Article 51 does not use the term ‘aggression’ but the much narrower concept of ‘armed attack’ which means that. . . any act of aggression which has not the character of an armed attack involving the use of armed force does not justify resort to force.”

The careful linguistic scheme of Article 2(4), Article 39, and Article 51 was designed to serve the overarching purpose of the United Nations Charter, expressed in the very first words of its Preamble, “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind,” which refers to the two world wars of the twentieth century, including the Nazi armed invasions of several European countries and the Soviet Union.

In short, the substantive law of the UN Charter as consistently cited by Noam Chomsky in his long-standing opposition to the threat and use of force by the United States in the conduct of its post-WWII foreign policy is explicitly anti-imperial—not implicitly imperial—as Sitze suggests.

Although I support institutional reform of the UN Security Council to include getting rid of the permanent-member category as well as the permanent-member veto—or at the very least increasing the number of permanent members while abolishing the veto—the substantive core of the law of the United Nations is essentially anti-imperial.

I would like to address another point by Sitze. While he generally assessed Dershowitz’s jurisprudence, such as it is, with insight about the self-serving and largely “successful” tactical use of law by Dershowitz as Israel’s chief public defender in the United States, it seems that Sitze took that analysis to a problematic conclusion by writing: “Today, the geopolitical presuppositions of international law are shifting in ways that Dershowitz seems to understand better than Chomsky.” Although Sitze, I think, is referring to Dershowitz’s tactical skills without supporting the substance of what Dershowitz says, his statement is still inaccurate.

For one thing, Chomsky has provided a coherent explanation of U.S. foreign policy and geopolitics functioning mainly as an instrument of corporate and financial power centers, while Dershowitz offers virtually nothing along these lines or any other.

To illustrate: In September 2003, six months after the start of the invasion, the Bush administration official, Paul Bremer, the provisional and de facto Iraqi head of state at the time, issued orders that included “the full privatization of [Iraqi] public enterprises, full ownership rights by foreign firms of Iraqi businesses. . . the opening of Iraq’s banks to foreign control, national treatment for foreign companies and. . . the elimination of nearly all trade barriers.” As David Harvey wrote shortly afterwards: “The orders were to apply to all areas of the Iraqi economy, including public services, the media, manufacturing services, transportation, finance, and construction. Only oil was exempt, presumably because of its special status as revenue producer to pay for the war and its geopolitical significance. The labor market, on the other hand, was to be strictly regulated. Strikes were forbidden in key sectors and the right to unionize restricted. A highly regressive flat tax was also imposed.” (See, David Harvey, A Brief History of Neoliberalism, 6.)

The U.S. takeover of the Iraqi economy including its oil sector was a major motivation behind the American invasion and occupation—a process which destroyed Iraq as a social and cultural entity and killed and maimed over a million of its citizens. Chomsky actively opposed the invasion of Iraq, and of Afghanistan, while Dershowitz said very little about it.  

With respect to looking ahead, and to gauge whose work might have served us better as a means of dealing with the future, it is important to note that Chomsky, unlike Dershowitz, is not a one-trick pony—far from it. He wrote with insight about a range of issues, including the neoliberal financial and economic order that the United States has imposed on much of the world—enforced by its military power and its post-WWII record of using it. If anything, American neoliberalism, which serves a corporate elite to the great detriment to the rest of us, is more pronounced today, and poses tremendous challenges for the future with respect to climate change, environmental destruction, food production, economic systems capable of providing essential goods and services to the people in this country and on this planet, and so.

In my view, the application of enlightened law by the public is a vastly under-utilized resource that could be deployed with potentially great effect to counter the immense political influence and corruption of corporate power. I view Chomsky’s work—in addition to the international law work of Richard Falk and the analysis of corporate power by Edward S. Herman—as a guidebook for the future on how to deploy enlightened law (if we don’t lose such jurisprudence completely, a process well underway) as well as our intellects against the forces of corporate power and political corruption, forces that, in my view, are destroying this country and the rest of the world with it.  

Howard Friel is the author of Chomsky and Dershowitz: On Endless War and the End of Civil Liberties (Interlink, 2014). He also published The Lomborg Deception: Setting the Record Straight about Global Warning with Yale University Press in 2010, as well as two books, co-authored with Richard Falk, on the misrepresentation of U.S. foreign policy in the New York Times. 


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