“Amazingly, President Biden is warning Israel that allowing politicians to be involved in nominating judges is going to perhaps affect our shared democratic values. Well, of course, in America, politicians do exactly that.”
Eugene Kontorovich is a scholar of international law, an expert in the Israeli-Arab conflict, and a professor at George Mason University’s Antonin Scalia Law School. At a time when many have lost faith in international organizations, I sat down with him to discuss what role they should actually play.
“With all international institutions, the trade-off—the lesson—is how to be able to rely on them for small things, small routine things, and not put faith in them for important things,” said Kontorovich.
We also discuss the current protests in Israel and the U.S. State Department’s role in funding some of them.
“The United States is giving political support for the efforts to crush democracy in Israel. And by crush democracy in Israel, I mean insulate the Supreme Court as a permanent, aristocratic, democratically unchangeable body,” said Kontorovich.
He argues that despite what we are hearing in the mainstream media, the judicial reforms proposed by Netanyahu’s coalition are not a threat to Israel’s democracy. In fact, a judicial overhaul is necessary in order to restore the Jewish state’s separation of powers and transfer authority back to elected officials, says Kontorovich.
“In Israel, the court picks its own successors … so, what you essentially have is the supreme power in the state held by a self-selecting group of people completely insulated from any democratic process,” explained Kontorovich.
Interview trailer:
Watch the full interview: https://www.theepochtimes.com/whats-the-deal-with-protests-in-israel-professor-eugene-kontorovich-on-supreme-court-power-grabs-us-involvement-and-where-the-real-danger-to-democracy-lies_5162195.html
FULL TRANSCRIPT
Jan Jekielek: Professor Eugene Kontorovich, such a pleasure to have you on American Thought Leaders.
Eugene Kontorovich: A pleasure to be here. Thank you.
Mr. Jekielek: We’ve been planning this interview for quite some time. Lo and behold, as you’re sitting here at the Capitol, these protests have erupted in Israel, ostensibly about democracy. Democracy in Israel is being threatened. That is the mantra that we keep hearing. This is something that you have deep knowledge about, so let’s start here. What’s happening in Israel?
Mr. Kontorovich: What’s happening there, as sometimes happens, is almost the opposite of what you would conclude by reading the mainstream media. There are serious challenges to democracy in Israel, but there are challenges that come from the almost all-encompassing power of the court and government bureaucrats. In the absence of the constitution, the Supreme Court has taken massive powers for itself and for a cadre of government lawyers.
For example, the Supreme Court has said that it can strike down statutes. Even beyond that, they went on and said that they can block any government action that they don’t think is a good idea. They can set refugee quotas. They can control military tactics. Most shockingly, they’ve said they can even remove a sitting prime minister absent any statutory impeachment provisions.
They’ve gone on to say that if the Knesset were to pass laws to pass a constitution, they could strike down the constitutional laws as being against some higher constitution known only to them. In short, they have said that they are the absolute final power over all government action and over all matters of public policy in Israel. What is additionally alarming and what makes the matter particularly intolerable is that these final judges of every democratic decision are not picked in any manner that is democratic. Indeed, they control their own selection.
Unlike in America, the judges are not picked by the prime minister or the president. They’re not picked by the legislature. They’re picked by a committee that is controlled by judges. Needless to say, they are not going to pick people who disagree with them or who think they’ve wrongly decided any of their cases. They’re not going to pick people who believe in judicial restraint. They’re going to pick people who basically are yes men to what they are currently saying.
Essentially, the supreme power in the state is held by a self-selecting group of people completely insulated from any democratic process. As a matter of fact, they have also said that the attorney general, who’s not a member of the cabinet, but is really an officer of the Supreme Court and a representative of the court in the government, can veto any government action.
If the government wants to hire someone, fire someone, or appoint someone to a committee or take any single action, the attorney general can prevent it from happening simply by saying, “No, I don’t think it’s a good idea,” without any legal rationale. Indeed, the attorney general has currently said that the prime minister of Israel, who was just elected a couple months ago, is incapacitated and is not allowed to be involved in judicial reform because of some legal proceedings against him, even though he was elected with the public being fully aware of these legal proceedings.
They said now the prime minister of Israel, just elected, is not allowed to talk about the single most important issue in the country. In America, the president can fire the attorney general. In Israel, the attorney general can fire the president and the prime minister. That is extraordinary. What these reforms do is they seek to put some democratic checks on this. That is to say, a system of checks and balances is very important.
In Israel, there’s currently one power with no checks on it—the court. The current proposal is to put in a modest check, not take away the powers of the court, allow it to continue to review laws, and certainly allow it to defend minority rights, but not to allow it to pick its own successors, but rather to have rotating governments, Right-wing and Left-wing as the people elect them, have a primary role in appointing judges to the court, so that it does not function as a kind of politburo selecting its own members and selecting its own successors.
Mr. Jekielek: What you’ve just outlined seems like a pretty serious issue. Why all of a sudden has this come to the fore?
Mr. Kontorovich: One reason is that the court’s power grabs have only increased with time. If they had simply satisfied themselves with saying, “We can strike down laws as being unconstitutional if they violate minority rights,” even though there’s not a legal basis for that, nobody would have minded. But in recent years, they’ve made some fairly extravagant extensions to their self-proclaimed power, including claiming to be able to remove the prime minister. They’ve claimed to be able to strike down amendments to the laws they previously said were constitutional.
They have now said that they can decide not only what the constitution means, but what goes into it, which is a fairly shocking aggrandizement of power. These efforts have been many years in the making. Politicians have complained about the court’s overreaching power for many, many years. Indeed, they have been trying to do things about it for a long time. But what they found is that if you try to fix on a small level, it gets blocked.
This government chose to fix it on a broad level. Another reason that it’s happening right now is because it really couldn’t happen in the past six years, because Israel has had five elections in six years, all of them caused by the Supreme Court. In fact, it was because the Supreme Court struck down a very important legislative compromise between the religious and secular factions about army service.
In the absence of that compromise, there was a cycle of elections. The Supreme Court also invented a rule that when you have a lame duck government, a government that doesn’t have a majority support, it cannot take important actions. The court, in fact, has been the government for much of the past six years, and the government has been incapacitated from dealing with major questions, including judicial reform.
Basically, the court has been resisting any kind of reform until now. Finally, there’s a significant stable majority in favor of reform in the parliament. The court has been predictably Left-wing in its rulings, not always Left-wing, but primarily favoring the Left. Those politically allied with the Left say, “Why should we allow these reforms? We have power now. Why change it?” Under the reforms, all parties would be able to appoint judges to the court.
The Left would appoint when they get elected. The Right would appoint when they get elected. But currently, the Left thinks, “Under the current system when we’re in power, there are Left-wing judges appointed to the court. When the Right’s in power, there are Left-wing judges appointed to the court. Why should we change that? That’s great. Heads, I win. Tails, you lose.
Mr. Jekielek: It’s fascinating to hear about this. This is actually very different from the mantras that we’re hearing in the legacy media. This is yet another example of a propaganda information war miasma that almost any issue of significance becomes mired in. The thing that I find very interesting is there are actually recent revelations that there’s even some U.S. funding of some of these opposition protests. Can you clarify that?
Mr. Kontorovich: The protests are extremely well-funded and extremely well-organized, and there is a question where they get the money from. It’s completely legitimate for people to protest wherever they get the money from. It has turned out that some of the groups who are organizing these protests have received funding from the State Department in recent years.
Those revelations have only shown a small amount of funding to those groups, but that’s direct funding from the State Department. That raises the question of whether they have also received indirect funding from the State Department through other groups that would be easier to conceal. Much more important than the funding is the fact that the United States is giving political support for the efforts to crush democracy in Israel. By crushing democracy in Israel, I mean insulate the Supreme Court as a permanent aristocratic, democratically unchangeable body.
There is one reason America has managed to have a reasonably healthy civil culture over the decades. Let’s say the Supreme Court makes a big mistake. Supreme Court judges are independent. They have life tenure. They can make mistakes. Let’s say they make a mistake. They don’t have to lose faith in their country or give up because they think, “We can elect politicians who are eventually going to appoint judges who have judicial philosophy consistent with our values and, over time, we can change this result.”
We can’t disobey the opinion of the court. It has the force of law, but it’s not from Sinai. It’s not biblical. It’s not dogma. In Israel, the court picks its own successors. If it makes a bad decision, it’s not going to correct it. It’s not going to change it, and the people really have no hope. The people can elect a prime minister, and the attorney general can say he’s not allowed to be prime minister absent any statutory authority.
Amazingly, President Biden is warning Israel that allowing politicians to be involved in nominating judges is going to perhaps affect democratic values, when in America, politicians do exactly that. American Supreme Court judges are not picked by the Supreme Court judges. Imagine if we had a rule that said the majority of the court or the chief judge could veto Biden nominees. That’s how it works in Israel.
President Biden, amazingly, unhappy with some decisions of the court, threatened to pack the court, which would effectively make it a tool of his own policies by increasing the number of judges. He could make a vast number of new appointments and immediately change all the decisions of the Supreme Court.
The same Biden administration, that was just recently threatening to pack the court, is now objecting to the Israeli government seeking to appoint just two judges to the Supreme Court in its term, which is what these proposals would entail. The political backing of the Biden administration of the protest movement is alarming and hypocritical.
Mr. Jekielek: There are clearly quite a significant number of people protesting what they believe to be threats to democracy. Are they somehow defining democracy differently? Are they misled? What kind of information are you getting on the ground?
Mr. Kontorovich: The protestors are a mix of people. Some of them, and you can tell by their slogans, reject the legitimacy of this government, much like the resistance to President Trump. This person, Prime Minister Netanyahu, cannot be prime minister. He’s illegitimate, despite winning election after election. Some of them are seeking to topple the government, which is a legitimate use of protest. But it’s a farce to pretend it’s truly about democracy.
Others are alarmed. As we’ve learned in recent years, fear sells. One side is saying, “Democracy is ending. Take to the streets now or you will be living in a fascist state.” People don’t want to be living in a fascist state. They may worry. Whereas, the other side is saying, “We have some reforms that are going to improve the democratic accountability and the democratic functioning of the country.”
One is a promise of hope, and the other is fear. Fear, I think, works better. People have mixed views and mixed motives. The opposition leader, Yair Lapid, just lost an election. He wants to preserve a mechanism where his preferred policy results can be mandated, even if he continues to lose elections, and the Supreme Court is such a mechanism.
Mr. Jekielek: To finish up this topic, where do you see this going?
Mr. Kontorovich: The government is going to pass a law which simply says that judges are not going to be the judges of who are going to be the judges. That’s all it says, “The judges are not going to be the judges of who are the judges.” It does not affect judicial independence. Judges would still serve life terms or until their pension. The government would not be able to fire judges. But the nominations for judges would now not be veto-able by the judges themselves.
The Supreme Court in Israel believes that it has authority to decide any issue. It has no notion of political issues or issues that are not legal issues. The Supreme Court will almost certainly be invited immediately to rule on this reform, and it’s very likely that they’ll strike it down. That is to say they will say that a constitutional law change on how they are selected is not legal, and that no one can change how the new judges are picked. In other words, there’s simply no ability to check the court.
That would really imperil Israel’s democracy and lead to a significant constitutional crisis. Most alarming is that many Western leaders, because they’re sympathetic with the general political tenor of the court or hostile to the political tenor of the Netanyahu government, might seek to support the court in this crisis. It would be unthinkable for the Supreme Court if two judges were added to the Supreme Court with some kind of court packing plan.
It would be unthinkable for the court to be able to veto that, because it’s up to the political branches to decide on the structure of the judiciary. But the Israeli Supreme Court believes it is the guardian of Israeli society and that it has the superior insight into what is democratic. They don’t believe there’s any barrier to it. They’re being encouraged to do this even by the opposition.
The question is whether countries like the United States are going to say, “We’re not getting involved,” or whether they’re going to say, “You have to respect the ruling of the court.” But, of course, the ruling of the court makes them a judge of their own powers, which is fundamentally inimical to checks and balances.
Mr. Jekielek: You’ve said over the last five to six years we’ve seen quite a bit of dysfunction in Israeli politics. This has had significant implications, not just for Israel. What you’re describing is very likely greater dysfunction and growing dysfunction with no clear solution.
Mr. Kontorovich: Hopefully, the Supreme Court will understand that deciding that they get to be the judges of who is going to be the judges of how you pick the judges would undermine their legitimacy, fundamentally, and that they should not do that. But, in fact, there is a real struggle, and it’s part of a broader struggle in the West over definitions of democracy.
There are definitions of democracy that essentially mean rules by supposedly enlightened elites, as opposed to democracy in the sense of people voting for things. This is really a clash between notions of popular democracy versus expertise and enlightened rule. It’s maybe similar to other things we’ve seen in recent years, including the COVID issue, which in many ways was a controversy between popular will and bureaucratic mandate.
Mr. Jekielek: In this vein, I don’t know if there’s ever been a greater test of whether expertise, in fact, is a good way to govern. We may want to look at this in the future. At least that’s what I’m thinking.
Mr. Kontorovich: You’re talking about the COVID lockdowns?
Mr. Jekielek: Yes. I’m talking about all sorts of COVID-related policies.
Mr. Kontorovich: It’s an interesting illustration in the following way. It’s completely legitimate, fundamentally necessary and there’s no other way—if you have some kind of medical question about how to treat or deal with a virus, the people you will consult with will be doctors, epidemiologists. Maybe they’ll all get it wrong, but it’s hard to think of a better system. But that’s about actual narrow medical questions.
When you talk about public policy decisions, those are combinations of medical judgment, how dangerous is this virus, how transmissible is this, with other kinds of values. Those values are political values. It’s not unrelated to the Supreme Court issue because, in Israel, the court thinks that questions of how many judges there should be, how many refugees should we take, and what should be the map of the de facto border, are all purely legal questions. Whereas, they’re a mixture of law and mostly policy. In fact, they’re political questions.
The question of should we have a lockdown, even assuming a certain level of dangerousness of the virus, is a policy question, because it weighs one the medical facts to the extent we can determine them, against something completely different, which is values and the value of liberty. No epidemiologist is actually an expert in the value of liberty or can claim to be an expert in the harm caused to people by not being able to work and go to school.
Mr. Jekielek: There are two other issues that strike me. The first one is that just one group of experts happened to have the megaphone, and another group of experts had very different, but much more scientifically valid perspectives. There is that issue.
Mr. Kontorovich: We see quite clearly the experts that had the megaphone were the government experts, the experts who were in the government bureaucracy led by and coordinated by the National Institutes of Health. But another lesson that we see here is that experts are not always disinterested simply by virtue of being experts. They can have agendas, and having a PhD does not make you free of politics and free of personal self-interest.
There were things they were trying to achieve, some self-interested, and some out of ideas of how to control a population and what you need to tell people to get them to behave a certain way. It was quite clear that the notion of not telling people exactly what you see as the full truth to ensure a proper outcome was legitimated, which is a kind of paternalistic view, that we can tell people things that may not be exactly right, because it’s actually better for them in the long run.
With the delegitimization of dissenting views and the centralization of a kind of official science, which came to be known as, “the science,” it’s clear that the government experts were wrong or purposely misleading. Again, this is not a fundamental indictment of expertise. We need expertise because we need to know about things that we cannot establish ourselves. But it’s about who gets the last word on what you do with the information from the experts.
Every specialist deals with a narrow set of things, and there is no neutral or expert way of valuing different kinds of costs. That is to say there is no expert who can tell you, “On the one hand, we want to protect old people. On the other hand, there’s going to be emotional harm to lots of teenagers.” There’s no formula for that. It’s a policy preference choice, which is why that’s where expertise stops, when you’re weighing those kinds of intangibles.
It seems quite clear that they did not significantly consider or weigh emotional harm to children or really to anyone. As a kind of model of cost-benefit regulation, it was not particularly expertly conducted, but you wouldn’t expect them to do this. That’s not their job. But that’s a reason why the politicians need to be the bosses of the experts, not vice versa, because it’s impossible. There is no objective or neutral way to integrate multiple different kinds of values.
Mr. Jekielek: Let’s talk about this whole COVID picture. This is something you’ve written about, especially when it comes to Communist China’s co-option of the international system. You’re an expert in international law. The Arab/Israeli conflict has been your focus, but you’ve also looked at what happens in these multilateral international organizations like the UN and, of course, by extension, the WHO.
There’s a huge amount of skepticism about the value of these multilateral organizations right now because, again, they pushed policies which turned out to be quite bad or some of which appeared to be at the behest of the Chinese Communist Party in the case of the WHO early on in the pandemic. Are these international organizations actually doing their job, and is it even possible for them to do it in this type of context?
Mr. Kontorovich: It’s very easy to overstate the harms caused by the World Health Organization, but it is almost impossible to understate the benefits. That is to say, most international bureaucracies, like the WHO, are nothing burgers. That is to say they create an appearance or aura of authoritatively being the central international forum for dealing with something. The United Nations is another example. But they’re really just bureaucracies that are incapable of dealing with significant issues that run into or contradict the interests of nation-states.
Because they’re incapable, it doesn’t mean they’re going to cause harm, but they will certainly not do benefit. If one was relying on them to help, that would be a false reliance. To the extent that one has a hope that this World Health Organization is going to monitor China, is going to force China to report somehow, and is going to get to the bottom of this, that is an unrealistic hope from the get-go, which does question the value of these institutions.
A lot of international institutions function reasonably well when you have low stakes and constant things. If we’re talking about reporting on scarlet fever on an ongoing basis, World Health Organization, I don’t know if it’s the cheapest bureaucratic way to do it. But when you get to things that significantly affect the interest of nation-states, the WHO depends on all these nation-states for their cooperation. The WHO is very heavily funded by China.
We see they’re not going to have a showdown with the nation-states who they depend on for ongoing bureaucratic functioning. That’s going to hurt their institution. The real failing of the World Health Organization was not confronting the Communist Party, and also engaging with them as if they were well-intentioned. We’re all looking just to get to the bottom of this. The World Health Organization can only know about China one way, whatever the Communist Party chooses to tell them.
Anyone who’s going to rely on the World Health Organization’s rubber stamp is not exercising due diligence. One of the disappointing things that came out of the early days of Covid is that I would have thought the American intelligence apparatus would have some kind of effective way of figuring out if some dangerous epidemic is spreading somewhere. But apparently, there was reliance on the World Health Organization. The problem is that nation-states rely on it. You don’t have to rely on it.
Mr. Jekielek: Basically, you’re saying, “Why have these institutions at all? It’s performative.”
Mr. Kontorovich: You can have them for low stakes things.
Mr. Jekielek: It’s a lot of money.
Mr. Kontorovich: That is to say the money is the least of the problems, compared to the harm that could be caused if you actually rely on them for resolutions on high stakes things. International organizations are bureaucratic and they’re expensive ways of solving anything. With all international institutions, the lesson is how to be able to rely on them for small routine things and not put faith in them for important things.
For example, you can have the International Atomic Energy Agency inspections. They’re probably useful for double checking that Britain or France has the nuclear weapons stowed correctly. But for monitoring Iran’s nuclear program, a high-stakes, noncooperative country, it would just be folly to rely upon them.
Mr. Jekielek: Their main function is to create a veneer of legitimacy for governments that don’t deserve it.
Mr. Kontorovich: That is certainly true of United Nations human rights institutions, which are heavily populated by countries with horrible human rights records, like the PRC [People’s Republic of China]. It lets them participate in a human rights forum, be treated warmly and receptively, and potentially use those images back home. Here we are voting on a resolution against Israel at the Human Rights Council. This does explain part of the strong anti-Israel bias at the UN.
You have all these dictatorships getting together. They have to vote against someone. Who can they all agree is the lowest common denominator? Israel. It serves as an expiatory distraction function. The United Nations can do treaties about mail or international aviation which serve technical, useful coordinating functions. But on fundamental things that touch upon national sovereignty, it’s a false hope.
If you simply ignore them and don’t take them seriously, then the harm comes from the credulity of those who look to these kinds of institutions for fundamental solutions to problems caused by bad state action. Only other countries can solve that. To stand up to the CCP, you need power. Most countries wouldn’t do it. The question isn’t that the World Health Organization didn’t call out the CCP; neither did the United States, and neither did England.
That’s the fundamental question because the international bureaucracies are unaccountable because they don’t have a constituency of their own citizens. Countries are accountable to their citizens. We can’t hope for more from the international bureaucracy. We can hope for more from western democracies.
Mr. Jekielek: You have a point because you could argue the U.S. just copied what the CCP said was the correct response, this kind of draconian response which it instituted. There’s a lot of debate about how much of it was propaganda, and how much of it was real. We certainly saw there was very significant death through all sorts of proxy measures in China early on. I’m still trying to figure out what that was, because it didn’t seem to be from the virus that actually came out to the West.
Mr. Kontorovich: There was a panic. I’ve studied the history of pandemic response in the United States, and what’s extraordinary is that the measures the United States adopted during Covid were not measures that had ever been implemented in any pandemic, including the 1918 Spanish flu, which was significantly more severe in its consequences. The idea of sweeping, prolonged lockdowns was not only never done before, but in plans and strategizing and war gaming out pandemic situations, which the federal government had done extensively, the notion of a global pandemic respiratory virus was not surprising or new.
It had been anticipated and thought about for a really long time, mostly in the context of influenza or maybe a SARS-like event. But the scenario was not surprising, and none of those plans involved lockdowns of this nature. Indeed, the federal pandemic planning document talked about isolation of sick people as being the primary tool. Where did this lockdown response come from? It’s impossible to say definitively, but what seems to have happened is that the Chinese government implemented a policy that was not a big stretch for them, being repressive and draconian.
The Western countries where it reached, Italy first, and then the west coast, just copied that response saying, “We have their virus. We’ll have their response.” Governor Newsom was the first to implement this in California. Other west coast governors followed immediately and, very quickly, it spread.
Mr. Jekielek: You’re absolutely right. There were official pandemic plans that were drawn up and tried and tested and used all the way through to today. Lockdowns, from what I recall reading, were looked at, but were never accepted. On the other hand, there was this national security-type wargaming response which had some similar measures that may have also contributed.
With this new pandemic treaty that the WHO is working on, and also these new international health regulations which many countries are subscribing to, they are definitely giving more powers to international bodies. You’re an expert on international law in general. I’m not going to ask about these specific documents. You’ve also been looking at how international law has been co-opted in dealing with Israel. I know this has been a big focus for you. Please explain to me the value of this. Is this something that’s useful? Is this something that we should be trying to build, and how do you actually enforce it if you do?
Mr. Kontorovich: International law is clearly useful and can be very helpful for certain purposes. The key is knowing for what purposes it can be useful and not placing any kind of broader or ultimate hopes on it. The backlash against international law comes from overly aggressive claims made on its behalf that it will usher in some kind of new world order of countries that follow rules, regardless of their interests, as a kind of global consensus system of public morality. It’s not going to be very effective for that.
International law could be useful for lots of little things, deciding jurisdiction over vessels on the high seas, providing background rules of diplomatic immunity, facilitating information sharing, ongoing routine functions, civil aviation, and thousands of uncontroversial contexts. International law is going to be most limited when it seeks to constrain states from doing things that are particularly important to them and their power.
The first thing you have to ask about international law is, “What is international law? Where does it come from?” International law can only come from nation-states. International law is rules that countries agree to. That is where it comes from, typically in treaties or through some other mechanisms. So there is no supreme authority above countries, and there’s no supreme enforcement mechanism.
What does that mean? That means international law will work well in a situation of reciprocity. If you search our ambassador’s bag, we can kick out your ambassador. We both have ambassadors. But in highly disparate endgame scenarios, let’s say China kicks out the U.S. ambassador. The U.S. can then kick out China’s ambassador. But let’s say China now violates human rights and oppresses a minority. What’s America going to say, “We’re going to show you, we’re going to oppress our minority, too?” It doesn’t work. There’s no logic of reciprocity.
Those kinds of international law ideas are going to be much more aspirational. They’re not really going to be law. They’re going to be statements of values and, if one takes them as such, they’re not going to do much harm. But if one places hope in them, then they will ultimately be distracting because there is no mechanism. The United Nations certainly is not going to be the mechanism for making them enforceable.
Mr. Jekielek: I’m thinking of it in the context of harms, like the crimes against humanity and genocide that were developed after World War II. The Chinese Communist Party is very much involved in this.
Mr. Kontorovich: Simply defining the crime is not going to create the policeman who’s going to go enforce it. That requires political will on the part of countries. What we’ve seen is calling it international crime does not create that political will. If Western countries did not want to create sanctions or consequences on China for creating the COVID disaster, what are the chances that because of international law they’re going to do something about groups in China?
International law is used often as a substitute for direct moral appeals. “International law says,’ is a way of saying things because we don’t have a global religion. We’re not united by a shared faith. International law might become a proxy for that. It doesn’t really work well as a proxy. I think appeals to morality are more honest and effective.
Mr. Jekielek: We have certainly seen that there doesn’t seem to be very strong enforcement mechanisms removing PNTR [Permanent Normal Trade Relations] for China by the U.S. unless they fix some of their human rights problems. That might be a useful tool.
Mr. Kontorovich: But it’s not going to come from international law. It’s going to come from political will in the individual country. That’s the key. When countries delegate powers to make decisions, those decisions are now out of the hands of democratic processes. That is something to be careful about. That’s why the United States has also not joined the International Criminal Court.
International institutions can be used as a mechanism of insulating political decisions from democracy. That’s why the Obama administration got the Iran deal passed as a security council resolution because that’s not something Congress can veto. There was an idea after World War II that it could be a basis for some kind of shared morality, which is still appealing to some, but in fact it is not. Actors like the Chinese Communist Party have a cynical viewpoint. They can sign the treaties and not believe in the ideals.
Mr. Jekielek: It would be an understatement to say that the international situation right now is fraught. You’re telling me that these international institutions in this context are not going to be helpful.
Mr. Kontorovich: No, but that just makes it like the entire rest of human history. There’s no genie in a bottle that’s going to fly out from the United Nations, whatever organization, and solve all of humanity’s problems. We are left with the problems as nation-states. I take a different perspective. We live in an extraordinarily peaceful time by global standards, by standards of militarized conflict. We live in an extraordinarily prosperous time.
What much of the Western world at least is struggling with is more the question of what are its values now that the normal problems of getting food and avoiding being conquered have been taken care of. These are advanced problems, at least.
Mr. Jekielek: I was told recently by a high-level government official that we might end up voting ourselves into a situation like Venezuela. The Chinese Communist Party has a disregard for basic humanity and is waiting in the shadows to assume the mantle of a global power broker and decision maker.
Mr. Kontorovich: I agree that the United States does not seem sufficiently prepared or interested in the global challenge posed by a Chinese communist expansion. That’s been seen for a long time already in the South Pacific Sea, which is an area I know well, because it poses lots of international law issues.
China has made some extraordinarily broad territorial claims against most of its neighbors. The premise of this has created these military base islands, which the United States has not been particularly effective at challenging, but which now projects their power deep into the Pacific. At this point, it just seems they’re more interested in winning.
Mr. Jekielek: That doesn’t look good to me.
Mr. Kontorovich: We just have to get it, but the United States is capable. It’s a matter of interest.
Mr. Jekielek: Any final thoughts as we finish?
Mr. Kontorovich: On the whole, despite that all we do is talk about problems, they are all surmountable problems. They are more problems of knowing what we want, rather than not being able to get it.
Mr. Jekielek: Professor Eugene Kontorovich, such a pleasure to have you on the show.
Mr. Kontorovich: Thank you so much. Great pleasure to be here.
Mr. Jekielek: Thank you all for joining Professor Eugene Kontorovich and me on this episode of American Thought Leaders. I’m your host, Jan Jekielek.
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