Category Archives: UNL / International Law

Courts and International Justice

Courts and International Justice
– big expansion of international courts since ’93 (ICTY in 93, ICTR for 94, ICC more recently, plus mixed courts, plus Iraqi courts)
– international criminal courts tries individuals, not states
– “adjudication linked to international norms”

Expectations of International Criminal Courts
– deter atrocities in the future
– catharsis (look at dramatic history — how was catharsis created in Greece? trials? doesn’t the tragedy create its own catharsis?) (student piont: for victims or the West?)
– punish (exact justice)
– information gathering
– further develop Law (but why should Law be developed? as an end in itself?!?)
– Peace (no justice, no peace as descriptive… but justice not part of liberal tripod, so if this isn’t Realist or Liberal, is this just a constructivist argument?)

but — in South Africa, Guatemala, and El Salvador, Truth commissions operated instead of Courts
– Sierra Leon has both a Truth commission and a UN/local hybrid court system

Big Cheese: “There have been clarifications of international law come out of the ICTY and ICTY”

BC: Some “have said genocide is driven by such irrational beliefs, international courts may be ineffective deterence”
my thought: or is it that international law just is so weak?

BC: It is clear that some leaders, during peacetime, do worry about international law. But that doesn’t mean that a Rumsfeld won’t authorize torture.

In Rwanda, “big fish” tried in ICTR with no death penalty, but lower-level guys are tried in Rwandan courts and can get the death penalty

These courts are Chapter VII — enforcement actions — so even when states ask for international courts, they can substantially reduce sovereignty.

BC: I would say I’m not sure it’s a bad idea to have these courts imposed on societies… It’s probably a good thing to impose an international regime on the Balkans, for shock value.

[Imperialism — the first controversial thing he’s said that I agree with 🙂 for you, Curzon, Younghusband, and Chirol ]

student Q: Is there a need for an International Bar Association, to help states that have destroyed legal systems?
— part of Barnett’s A-Z Ruleset for Processing Politically Bankrupt States

BC: ICTY “created for wrong reasons; created for political reasons”

international law as a battlespace /helping/ the West? just PR or entable Seam states?

Downsides of Courts
– overriding state sovereignty and national culture
– may impeed negotiations (so UNSC can vote to delay ICC proceedings for 1 year, renewable)

BC: In the Balkans, in the ’90s, Milosevic was both the arsonist and the fire-fighter
– similar to TPMB saying Iran has a veto in Iraq?

for ICC, there is no rule that requires any prosecution — all ICC prosecutions are political (same for Attornies General generally)

student comment: the fear of giving the alleged a platform leads down the dangerous road of state-sponsored disappearances

Extradition
– typically defined by bilaterial treaties
– tax haven countries typically don’t have them
– a list of “common crimes” is defined, where both countries agree to extradite
– so-called “political crimes” typically aren’t included
– (this caused US/UK trouble when Northern Irish fled to Boston)
– typically, US wants confidence in that country’s justice system first
– however, some crimes (hijacking of airplanes) require extradition or trial by treaty
– in some cases there is a duty to cooperate with ICTY, ICTR, …

Alverez Marchein
– Mexican doctor helped keep DEA agent alive to torture him longer
– US paid bounty hunters to kidnap Marchein
– OOPS! wrong guy (hmmm…)

Regional International Law & Organization

US rationally calculates how much any given international or regional organization helps or harms it, especially economic

BC: You can’t have a Gramscian analysis without a discusison of economic ideals
– does this imply that we are trying to evolve international organizations?
– Why do analysts use Rationalism instead of Baynesianism?

Hagland: “Americans never make good realists”
– excludes European immigrants such as Kissinger
– big exception: Nixon
– “America is unable to resist the siren song of Crusading on behalf of ideals that besmirch rather than enoble the country’s geopolitical soul”
multilateralism as the “extension of American politics to the farther shores of two American oceans”
– while US attempts to act rationally, American belief in American divinely-given exceptionalism gets in the way… but more rationalism would make things fine
– Hagland: Nato “not a community of values,” but a security alliance (takes it to a “higher, but not more relevent, plane”) — (so does this imply not real international law?) — that is, NATO not pro-democracy but pro-US/Canada/UK/Germany/etc

random gripe: why do some American students refer to Americans as “them,” not “us”?

BC: “I would argue that it was not until 1981 that uniteralism would refurse with a vengence… and it was doctrinal unilateralism, not constrained by rationalism or whether we needed allies or not… During the Cold Wars we tied outselves to NATO”

Another good phrase: “Much of Europe represents a post-Westphalian governance”.. (or is it just Federal?)

Did You Know that Donald Rumsfeld is an Unindicted War Criminal?

Refugees Peacekeepers ICJ

Refugees

Are IGOs very powerful
– Barnett & Finnemore argue so
– but, Big Cheese is very skeptical
– B&F would say IGOs indepent
– but BC finds serious problems with all their cases
– think of UNHCR — growed because of UNHCR actions or because States found it convenient, especially with Soviet invasion of Hungary (internally displaced persons, not refugees)
– also think of politicization after Rwanda genocide, where Hutu militias mixed in with civilians at UNHCR camps
— in Rwanda case, UNHCR Secretariat was unable to make States act because not in State interest, and UNHCR did not “teach” a new interest
– /but/ – UNHCR then “rented” Congo soldiers (under UN Observers) — UNHCR militia?
– BC: IGOs independent when States do not care
– also during Soviet invasion of Afghanistan, UNHCR more active in Pakistani camps than Iranian camps, because States hostile to Iran, but US friendly to Pakistan
– BF and BC agree that the bureaucracy is important – Secretariat, not just Secretary
– BF argues there is a “culture of repatriation” in UNHCR, but BC cites memoirs of UNHCRs who fought against states (and lost) on forced repatriation
– BC: though it’s against internationa law, states forcibly return refugees to dangerous situations “all the time”

my q: “Does this create the danger of an ‘illegal norm’ against non-repatriation?”

BC: “This goes back to the old question on Article II/4 (the use of force). If states violate something all the time, but claim they don’t, does this erase law?”

my q: “To what extent is the UNHCR’s camps during Afghan War proof of B&F’s thesis, because a permanent UNSC combatant could not stop UNHCR?”

BC: UNHCR regime was created by Western powers against Soviets during invasion of crisis Hungary . So Afghanistan is not an exception

back to lecture:

remember, original UNHCR regimed created “against” Soviet Union
– but it become big during India’s dismemberment of Pakistan

BC: “The Western states view of the UNHCR is that the UNHCR should care for these people… over there”

student Q: What about situations in Europe where refugees go through several countries? Is there still a country A, B, C, D, E, etc, even if they are only in the country for minutes and the state does not know they are there?
BC: a “tangled area” of internation law; the problem is caused by economic underdevelopment
– UN peacekeepers as “enablers” of human traffic becuase they use the indentured workers (brothels, etc)

UN Peacekeeping

– UN Charter says nothing about peacekeeping (not forseen in 1945)
– “purely customary international law… it arises out of practice”
– first largescale UN Peacekeeping in 1956 in response to the Suez Crisis
– some smaller “blue helmet” forces earlier (India, Israel, etc), but only in Suez does it become thousands
– next big one: Congo (1960-1964)
– (UN almost collapsed because of Congo / French, Soviet refusals?)
– pecaekeeping is “armed interpositioning” with the consent of the parties effected
– would fall under Chapter VI on UNC (The Peaceful Resolution of Disputes)
– whereas Chapter VII is action against somebody (Enforcement)
– BC: “journalism aside, Peacekeeping is not Enforcement”

UNAMIR
– United Nations Assistance Mission in Rwanda
– began to Implement Arusha Accords / Ceasefire
– Chapter VI (Peacekeeping) Operations
– Delaire (author of “Shake Hands with the Devil”) wants to take action, but Secretariat skeptical because UN Secretariat (Kofi Annan, Peacekeeping Department, etc) refuse because of Chapter VI concerns
– another example of State pressure trumping what the IGO would otherwise want
– BC: charitable interpretation is that Annan wanted to ‘save UN peacekeeping,’ because unlateral UN peacekeeping acts would alienate US, UK, FR, etc
– Operation: Turquoise – after-the-fact France-supported UN chapter VII operation to save French-speaking Tutsi allies of Paris

International Court of Justice (World Court)

– can get a binding case three ways
1. Ad Hoc Agreement between states
2. Treaty Decision
3. Any state can uliterally make a declaration under article 36/2 that the ICJ has jurisdiction for certain kind of cases (as long as there is reciprocity under the same conditions with nation that would sue)
– can get a mediating case one way
1. UNSC asks for an advisory agreement

Nicaragua v. United States
– 1980s
– Nicaragua claims that because US gave compulsory jurisdiction to League of Nations’ PCIJ back in the day, grant still given to UN ICJ
– US claims Nicaragua didn’t join the League of Nations, so invalid
– ICJ rules against US on procedurial grounds
– old (Truman -> Reagan) jurisdiction given, except for Connoley amendment (except for domestic jurisdiction as defined by US) and Vandenburg amendment (which argues multilateral treaty can’t be used as basis unless ALL UN Members are a party)
– ICJ rules against US on substantive grounds
– ICJ said instead, US violated customary internation law, to which all members are a party
– so US “walks aout,” Reagan withdraws grand of compulsary jurisdiction (never regiven by any administration)

BC: “In general, the end of the Cold War hasn’t changed too much for the ICJ. During the Cold War, about two or three cases a year. After the Cold War, up to ten cases a war. Of UNSCR5, only UK has given grant of compulsary jurisdiction (except for cases pertaining to armed conflict)”
BC: “States don’t like to use the World Court [ICJ], because that would establish a precedents of the ICJ deciding cases. Even European states, which have regional courts, do not use the ICJ much.”
BC: “Many legal scholars do not see a great role for the ICJ. It can be in particular issues, and its been a bit of the thorn in the side of the US on death penalty cases involving illegal aliens… but in the earlier cases, these people would executed anyway.”

International Criminal Court (ICC)
not based on the principle of universal jurisdiction
– not part of the UN

Pinochet case
Judge Gurzon prosecuting under IL
BC: “universal jurisdiction” is why Rumsfeld, Kissinger don’t leave the country much – “unindicted war criminals”

BC: US policy to Cubans the same as China’s policy toward North Koreans

Teaching Law Through Saying and Doing

Relative Normativity in International Law,” by Ulrich Fastenrath, EJIL: The European Journal of International Law, Vol 4 No 3, 1993, ppg 305-340, http://www.ejil.org/journal/Vol4/No3/art1.html.

It’s time for more boring class notes. This was read along with Why We Teach and Constructing Maps.

In a well-known article published ten years ago1 Prosper Weil spoke out against several developments in the theory and practice of international law which aim at a gradual differentiation of the normativity of international legal norms: (i) the emergence of soft law, culminating in a fierce debate on the legal effects of certain resolutions of the UN General Assembly; (ii) the distinction made by the ILC between international crimes and international delicts, based on the further distinction between obligations erga omnes and obligations which are owed only to individual States; as well as (iii) the recognition of ius cogens as confirmed in Articles 53 and 64 of both the 1969 and the 1986 Vienna Conventions on the Law of Treaties. Professor Weil regarded these developments as pathological; they are to cause concern to the lawyer in his role as a ‘system builder by vocation’. According to him, international law would no longer be capable of fulfilling its function – the ordering of international relations in a heterogeneous, pluralist world – were the existence of rights or obligations to be determined through the importation of material criteria into the law. That would be to give uncertain weight to such rights
and obligations and to abandon a neutral evaluation to be effected through the application of formal legal criteria.

Legal Positivism is a form of positivism. The latter is, in general philosophical terms, based on the idea that, logic and mathematics apart, only phenomena which can be recognized by the senses are amenable to scientific knowledge. Thus, science is restricted to observable events and regularities or to a purely structural methodology devoid of content. Applied to the field of law, this premise of positivism has the consequence that jurisprudence may only concern itself with (i) internal or (ii) external behaviour of human beings, (iii) with the material embodiment of law in legal texts, judgements, etc. [so nearly useless! decontextualized! “New Criticism” from literary theory! — tdaxp], or alternatively, (iv) that it must disregard the content of rules and view itself as a general theory of law, taking note only of fundamental concepts which are necessary for all legal thinking.

In contrast to the Vienna School, H.L.A. Hart regards the existence of a constitution as a luxury. International law which, in his opinion, is primitive requires only individual recognition of each norm as a legal norm [so International Law is just socialization that is called law? — tdaxp]. Gidon Gottlieb and Friedrich V. Kratochwil find evidence of such acceptance in the fact that international actors feel bound by such norms or have recourse to them without questioning them or giving reasons for their validity.

Such vagueness is a necessity in the case of multilingual international legal texts, which, as a consequence of the use of different national languages, may remain deeply rooted in national legal terminology. Where concepts have no natural, predetermined existence but rather arise in response to the requirements of normal life, different languages may develop divergent semantic fields, that is, impose different categorizations upon the world. This is common in the face of different living conditions and, in particular, as a result of different cultural perceptions. For it is language and its classification that enables individuals to create their own world along the lines of their cultural perception; the world we experience is no more than the reflection of what we have made of it for ourselves. The greater the degree of cultural diversity the less likely it is that concepts will have a common meaning. This is particularly true for legal language, since each national legal system can be regarded as the ‘property’ of the nation concerned. In Europe alone, many different legal cultures have developed their own divergent legal institutions, often without counterparts in the other systems [so no coherent international law? — tdaxp]. To comprehend the legal framework of even more distant cultures within the categories of our domestic legal systems is all the more impossible. Divergent semantic fields in different languages and the creation of different legal institutions within various legal systems not only lead to extreme difficulties of translation,26 they also demand openness in the use of language. It is only in such a way that, despite a plurality of authentic texts in various languages, treaties may retain a common meaning, as presumed in Article 33(3) of the Vienna Convention on the Law of Treaties.

As law affects society, (technical) language employed in legal propositions (Rechtssätze) must stand the test of daily social usage. In this context, individual acts of application may be seen as continuous extensional definitions of the terms embodied in the text of the treaty [teaching is not just a text — it is a continuous process — tdaxp]. It is in this sense that one of the Special Rapporteurs of the ILC on the law of treaties, Sir Humphrey Waldock, saw in subsequent practice ‘an authentic interpretation comparable to interpretative agreement’.30 Also, the commentary of the ILC on Article 27 of its final draft on this subject-matter states that subsequent practice ‘constitutes objective evidence of the understanding of the parties as to the meaning of the Treaty’.31 It is with good reason, therefore, that Article 31(3)(b) of the Vienna Convention identifies such practice as a legitimate tool for the interpretation of treaties. A similar function may be ascribed to decisions of international courts and to statements made by individual States, by organs of international organizations, as well as by scholars of international law. Thus, through the evaluation of the (il)legality of individual acts and through the provision of, at least, interpretational suggestions for the relevant legal propositions (Rechtssätze), the process of concept-building continues.

The importance of such informal instruments in the development of law intra legem has frequently been confirmed by judicial decisions and doctrine. For instance, the US Court of Appeal for the Second Circuit stated in Filartiga v. Pena Irala40 that ‘[These] UN declarations are significant because they specify with great precision the obligations of Member States under the Charter. Since their adoption, members can no longer contend that they do not know what human rights they promised in the Charter to promote.’ Judge Jiménez de Aréchaga took an analogous view in his separate opinion in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case:’… even if a new accepted trend does not yet qualify as a rule of customary law, it may still have a bearing on the decision of the Court, not as part of applicable law, but as an element in the existing rules or an indication of the direction in which such rules should be interpreted’.41 In legal literature, Daniel Thürer has declared soft law to be ‘an orientational aid to interpretation’ while Alfred Verdross and Bruno Simma claim that certain resolutions of the General Assembly lay down ‘the perimeters for future arguments as to the applicable law’ [the OODA loop and Soft Law! — tdaxp]

Meta-legal linguistic conventions (to which even legal positivism must have recourse if it is to ensure that legal propositions (Rechtssätze) have any meaning at all) may have different degrees of authority. They receive different levels of acceptance from different States, also at different points of time. In addition, they are always subject to adjustments, themselves of varying degrees of authority. Thus, legal positivism is unavoidably forced to accept a graduation of normativity at the level of content. Since such variations in the use of language will mostly be of minor significance they will, as a rule, only affect the periphery of a concept. In some cases, however, these differences can have an impact on the very core of a concept. The liberal versus the Marxist-Leninist concept of ‘freedom’ in the understanding of human rights constituted a classic example [fall of Soviet Union as “teaching experience” — Victory as a “lawful” form of instruction? — tdaxp]. In such instances, the delimitation of a concept, and with this the clarification of the scope of the legal proposition (Rechtssatz) concerned, will depend upon the degree of authority and acceptance ascribed to the linguistic conventions in question.

In contrast to international treaties, both international customary law and general principles of law as defined in Article 38(1)(c) of the Statute of the ICJ, lack an authentic wording. Instead, such rules are formulated by international and national judges, organs of States and international organizations, or in scholarly writings through induction on the basis of State practice, of enunciated legal opinions, or through comparison of domestic law. Legal positivism would only be able to maintain its (purely positivist) approach if it were possible to draw unambiguous legal propositions (Rechtssätze) from this factual substratum. However, the simple fact that lawyers differ in their formulation of rules of customary law and general principles proves this to be impossible.

A judgement of the German Constitutional Court52 may serve as an illustration. The question before the Court was whether attachment of an embassy bank account would be prohibited by customary international law or by a general principle of law in the sense of Article 38(1)(c) of the ICJ Statute. First, the Court attempted to verify a customary rule of very narrow substantive scope, namely regarding the treatment of embassy bank accounts specifically with a view to attachment. In so proceeding, neither sufficient precedents nor domestic rules on the subject were found. Consequently, this approach was relinquished. The Court then had recourse to the highly abstract principle ne impediatur legatio. Obviously it was easy to find sufficient practice in support of such an abstract rule. What this shows is that the more concrete a norm will be formulated, the fewer cases may be found to fall under it and the more difficult it will be to identify that norm as a rule of customary law. Conversely, if a higher degree of abstraction is applied, the range of actions encompassed by the rule will grow. However, it will be as difficult to establish the concrete circumstances under which such a highly abstract rule may be applied as it will be to prove the existence of a rule with a very narrow substantive scope.

The unwritten constitution of international law still does not clarify which formal sources of international law actually exist [making cognitive battles all the more important — but this would seem to imply IL is seperate from social cognition — tdaxp]. Although Article 38(1) of the Statute of the ICJ identifies treaty law, customary law and general principles as largely uncontested sources of international law, this does not make clear on the basis of which criteria these law-creating procedures, and possibly only these, are to be regarded as belonging to the international constitution. In the context of legal positivism, rules would be necessary to address this issue. As these are lacking in international law – with the exception of rules on decision-making by international organizations – reference must be made to other concepts in order to determine the formal sources of international law. One may refer, for instance, to factors like general acceptance, the will of States or general practice in order to establish what counts as a source. This, however, leads to the observation that in legal positivism the validity of a legal proposition (Rechtssatz) and thus of the imperative embodied in it, is always (i.e. not only in the case of customary rules and general principles)
dependent upon contestable claims of varying degrees of authority. Thus, even at the level of the validity of norms legal positivism is unable to succeed in its attempt to exclude relative normativity from international law.

A problem inherent in the ‘constitution’ of international law is that of the hierarchical structure of the legal order. Both Vienna Conventions on the Law of Treaties recognize ius cogens. According to their provisions, treaties violating ius cogens are null and void. However, in contrast to national law, superordinated norms cannot be identified through particular legislative procedures. Instead, Article 53 of the Vienna Conventions gives priority to a norm which is ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character’. [high-intensity, random cycling conditioning? highly-effective in most animals, and makes it hard to unlearn — tdaxp] Such a formulation may leave a lot to be desired. International law does not, however, thereby surrender itself to an incalculable and uncontrollable subjective process. The criterion of general acceptance bars any attempt to make recourse to an unverifiable form of natural law. On the contrary, to the largest possible extent, a positivist, and thus verifiable, definition of ius cogens was chosen. Here, once again, soft law fulfils a useful function in that it provides generally accepted manifestations of widespread and established views as to what is to be regarded as legal and just.

The supporters of legal positivism will hardly find this convincing. They must, however, acknowledge that the international community used the Vienna Conventions to state explicitly that positivist conceptions were not sufficient and that material conceptions of legal validity were required [so power — that is teaching ability — matters — tdaxp]. Legal positivism is thus faced with the choice to either surrender its own premises by ignoring treaty provisions, or to accept these provisions and disclaim the omnipotence of positivist premises.

Voluntarism follows in the tradition of Hobbes: ‘auctoritas, non veritas facit legem’. Law is equated with the will of the law-maker, who decides upon the content and legal character of a norm. Along these lines the PCIJ stated in its judgement in the Lotus case: ‘International law proceeds from their [i.e. the States’] own free will’. [but if states are conditioned, how is this ‘free will’? — tdaxp]

Hence, modern day supporters of natural law also presuppose a positive law which is no longer understood as a reflection of justice. Rather, it is now conceived as an order ‘whose meaning is essentially committed to the value of justice’. This conceptual linkage justifies the power of the law to impose duties and, also, creates a pattern of meaning which, through the identification of the (ultimate) object and purpose of all norms, influences positive law (cf. Art. 31(1) of the Vienna Convention on the Law of Treaties). The ICJ made explicit reference to this role in the Continental Shelf (Tunisia/Libya) case:

when applying positive international law, the court may choose among several possible interpretations of the law the one which appears, in the light of the circumstances of the case, to be the closest to the requirements of justice.

[so Law as recognized as tool by courts, not as a good in itself. Both ramifications for social cognitive comparison and “lawfulness” generally. So IL is not a progressive Ulema — unless one say Sharia is not a goal in itself, but only as a way of serving God… — tdaxp]

The point of departure for the following discussion is the understanding that a verifiable, ‘true’, concept of law does not exist. ‘The term “law” has no inherent claim, arising out of some conceptual myth, to “mean” something well-defined and nothing else. What law should mean is a question of definition and definitions are only crutches for cognition.’ Thus, all legal theories as well as the norms derived from them are nothing but claims. Legal science is not to be understood as a method which seeks to reconcile law with truth. It is instead a method of operation, whose effectiveness is to be judged by its results [Just like teaching. Also somewhat Pauline. — tdaxp]. As law is given the general task of influencing human behaviour, legal theories must be judged according to how effectively they fulfil this task. In this context, limited effectiveness of a legal theory implies limited normativity

If one acknowledges the possibility of embracing the various legal theories in one overall system one has to suppose the following: (i) law is not a pre-existing system, only in need to be identified; (ii) law is not necessarily a homogeneous system, free from contradictions [the first time I read this I thought it was interesting, but now it seems to be just a refutation of “purfect law,” which clearly does not exist in practice — tdaxp]; (iii) the various legal theories do not exclude each other. Although the first two premises are not simply proven by the foundationlessness of the divergent legal theories, the openness of language and with this, the openness of the concept of law, allows us to accept them. In respect of the third premise I must confine myself to the observation that none of the theories of law which I have presented is self-sufficient and that the various theories are interconnected. For example, legal positivism is obliged to descend from its pure semantic level. In order to clarify the meaning of a norm, legal positivism, too, has to follow Articles 31 and 32 of the Vienna Convention on the Law of Treaties and include a pragmatic dimension by referring to the will of the parties to a treaty, to subsequent practice, to the object and purpose of a norm and to the circumstances of its creation. In so doing, legal positivism relies on determinants drawn from other legal theories. On the other hand, approaches that are based upon the material content of law cannot dispense with linguistic elements. The law-maker can only express her/his will to the addressees of law through language [disagree! the law-maker enforces — teaches through behaviorism — tdaxp]; divergent practice is ‘made the same’ by linguistic categories, and our legal perceptions or reflections on justice must be expressed through these conceptual categories, to be identified by particular verbal expressions. Language is thus not only necessary for articulation, but is much rather a prerequisite for any orderly intellectual examination.

Consequently, a normative contention will be best capable to assert itself if it is generated through a generally accepted source of law, and if it closely reflects the will and the practice of the States, as well as common perceptions of justice [see socialization — “law” can be any socialization action? — tdaxp]. If these conditions are fulfilled, the existence of theoretical divergencies does not necessarily weaken individual normative contentions based upon such concepts. Provided that these contentions display conformity as to substance, they may in effect strengthen each other.7 Where, on the other hand, contentions are contradictory they might paralyse each other. But even this result need not lead to the legal aporia so impressively described by M. Koskenniemi.128 Instead, it will give rise to a struggle of rivalling legal contentions for dominance. Contrary to the epistemological approach of M. Koskenniemi, the authority of such contentions, and thus their strength and their capacity to assert themselves, need not be equal. After all, nobody is required to side with the powerful battalions. The ‘weaker’ contention is also a legal one and may, over time, even win out over the other. The question of which contention to support is a political one and the prevalence of a legal contention thus the result of a political process. As a result of calculations of legal policy, those involved in the process of the creation and application of international law will frequently be prepared to accommodate themselves with other normative contentions, even if these cannot be founded upon finite justifications.

Why We Teach

Defending International Normas: The Role of Obligation, Material Interest, and Perception in Decision Making,” by Richard Herrmann and Vaughn Shannon, International Organization, Vol 55 No 3, Summer 2001, pp 621-654, http://journals.cambridge.org/action/displayFulltext?type=1&fid=164678&jid=INO&volumeId=55&issueId=03&aid=164677.

Another reading. Discusses a poll of opinion-leaders on international law. It would be interesting to see a similar poll done for bloggers. There is a laugh-out-loud moment in the reading where majorites want Iran to be punished regardless of Iran’s reason for doing a certain action. Apparently, some bad blood between us and the Persians.

The authors suggest an agent-based simulation to demonstrate their theories — as a former geek, I whole-heartedly applaud programmer full employment.

I titled this post “Why We Teach” because the field of “international law” and international politics generally seems to be very derivitive of teaching and learning. That is, when it’s not used as some sort of left/liberal sharia.

Norms play a role in international affairs. Few deny this. Hans Morgenthau, perhaps the best-known contemporary realist who reduced much of international relations to the pursuit of power, himself wrote that “certain things are not done on moral grounds, even though it would be expedient to do them. Such ethical inhibitionsoperate in our time on different levels with different effectiveness.” This observation directs attention to our central research questions: not whether norms matter, but how much do they matter and when? How can we explain the variation in decisions to defend norms that are violated? Why do key actors like the United States enact norms in some situations but not in others, and what does this tell us about the operation of norms in the international system more generally?

We address these questions by concentrating on prescriptive norms related to the use of force. Martha Finnemore and Kathryn Sikkink have noted the lack of attention given prescriptive norms, “those which prescribe appropriate behavior to actors,” and the importance of studying them.3 We concentrate on two norms that have been articulated and codified in various long-standing international statutes: nonintervention and the general prohibition on the use of force. The sustained and widespread acceptance of these norms makes them “robust” norms that Jeffrey Legro’s analysis suggests ought to have an impact.

We consider three ways to combine our three central concepts. First, perceptions of a situation can evoke felt normative obligation and, in turn, lead to behavior defending the norm. Second, desires to advance material interests may run counter to felt normative obligations and bias perceptions of the situation. This can lead to constructions of the situation in which seizing the material gain is framed as consistent with, even required by, moral duty.8 Third, normative rules may provide templates that structure perceptions of situations and affect both constructions of material interests and calculations on how best to advance them. Ideas in general, and prescriptive norms in particular, do not affect international outcomes the same way structures of power do. Structures of power can compel compliance after an actor makes a decision. Norms, however, affect conceptions of identities and interests in the process of actor decision making [OODA loop — tdaxp]. Prescriptive norms give rise to feelings of moral obligation to abide by and defend the norm. As Gary Goertz and Paul Diehl argue, to say the United States is affected by feelings of normative obligation is to say that its leaders and prevailing elite share certain beliefs and norms.10 Therefore, they suggest that perhaps the best way, surprisingly not used very often, to examine the role of norms is to study the thinking of a country’s elite through a survey. Such a “bottom-up” strategy would avoid essentialist stereotypes and provide empirical foundation for generalizations about the ideational landscape in the country.

The three concepts central to the theoretical issues we pursue are (1) material interests, (2) felt normative obligation, and (3) perception of the situation.We define material interests as economic and military assets that are valued by U.S. leaders. Normative obligation, in contrast, is defined as a collective expectation about the proper course of behavior that identified actors should follow in specified situations. This definition highlights the notion that normative motives involve distinctions of right and wrong. Rather than being reducible to some “optimizing mechanism,” norms carry “a sense that they ought to be followed.”

Constructivists typically use definitions that treat interests as constituted by normative ideas, arguing that norms shape interests and, therefore, cannot logically be opposed to interests. This argument rests on either particular definitions of the concepts that other scholars need not accept or is an empirical claim about the effect norms have on interests. In the latter case, the empirical claim needs to be demonstrated. In either case, the difficulty of differentiating between norms and interests, and the recognition that both are essentially ideational concepts, has directed attention away from norms and interest per se and toward different patterns of reasoning that can be connected to behavioral choices. We will adopt this same strategy.

Conceiving of different systems of logic directs attention to the mind-set of actors. Surprisingly, this phenomenological shift in theorizing has not produced a greater reliance on methods drawn from political psychology, where the study of mind-sets, cognitive reasoning systems, and decision making has a long tradition [what’s the role of Boydian thought in this area? — tdaxp]. Perceptions play a large role in both the logic of the appropriate and the logic of consequences. Perceptions of the situation define which rules, duties, and obligations are relevant as well as the type of utilitarian interests at stake. Perhaps because the study of norms in international relations research has often proceeded at the structural level and has not focused on variation in enactment, the role of perceptions has not received the attention it deserves.19 We propose to focus substantial attention on perception as a concept and use research strategies and methods to study patterns of reasoning that are well known in political psychology.

The difficulty of identifying which ideal-typical logic system (appropriateness or consequences) is a useful descriptor of any particular leader’s mind-set, and the empirical conundrumfacing any attempt to attribute behavior to one logic system or the other, have not deterred scholars from trying to make these distinctions. Finnemore, for instance, concludes that Robert McNamara’s actions at the World Bank related to the alleviation of poverty were attributable to a logic of the appropriate and not so much to utilitarian interest. She also argues that the bulk of military intervention following the Cold War has been to save civilian populations in places of little or no strategic importance and that discussions about these actions have not been about “interest and advantage” but “about responsibility and duty [Barnettian Gap].” She concludes more generally that “consequentialist utility maximization does not explain much of what goes on in international politics.” Krasner, in contrast, argues “that the international system is an environment in which the logics of consequences dominate the logics of appropriateness.” He argues that recent constructivist treatments overemphasize the impact of international norms and understate the importance of power and interest. For Krasner, “violation of or adherence to, international principles or rules is based on calculations of material and ideational interests.” He argues that rulers may honor norms, perhaps only in talk to secure resources, but when material and domestic political interests are at stake, rulers will typically allow the utilitarian logic of consequences to “trump” the logic of appropriateness.

In our scenarios, participants were asked to defend a norm, not to violate it. We chose to frame the investigation this way for two reasons. First, the norms regulating the use of force are well known, codified in many formal institutions, and likely to evoke “politically correct” responses. Although this reflects the noncontroversial discursive importance of a prescriptive norm, it does not address the more important debate over the relative impact of normative obligation on behavior. To deal with this problem, we used a technique applied in studies of racial attitudes. We created a context in which defending the norm was appropriate but the respondent could also generate an account for not defending it. Second, because too few of the emotional and material factors that might lead actors to violate a norm are activated in our scenarios, we concentrated on a more modest measure of compliance. This form of compliance, the defense of a norm, is far from trivial and is typically seen as an essential dimension of normative obligation. The defense of norms is one of the most common reasons leaders use to explain the use of force and intervention in world politics. Leaders often evoke the notion that they have an obligation to defend norms and clearly see defense of a norm as integral to the norm’s operation. Theorists typically make the same point, stressing the vital role played by society rebuking and punishing violators. Our method, in this regard, evokes Friedrich Kratochwil and John Gerard Ruggie, who argue that “whether or not violations also invalidate, or refute a law (norm) will depend (upon . . .) how the community assesses the violation and responds to it.” In our experiments we measured the differential willingness to defend a norm; if by some chance the norm generates only a sense of obligation not to violate the norm but no obligation to defend it, we should see little inclination to defend across any situation and no systematic pattern of normative defense in some situations and not others.

In the Persian Gulf experiment, U.Sfielites were also inclined to punish Iran no matter their perception of Iran’s motivation [still true if Iran was retaliating against a recognized al Qaeda attack? — tdaxp], with half favoring the use of force (Table 2, row 1c). Fewer than a quarter of those who saw Israel as aggressive were prepared to use force to punish Israel, although nearly everyone was prepared to at least apply economic pressure. In this experiment, unlike in the Bus Bomb experiment, the difference in the perception of Israel’s general motives did not make much difference in the way people responded to Israel’s attack.

…..

In the Repel an Aggressor, Defend a Victim, and Persian Gulf experiments, we asked elites whether they would defend against a norm violation in situations where economic and security interests were at stake and in situations where they were not at stake. We found that in all three experiments, considerably fewer people were willing to defend the norm when material interests were not at stake. In situations where the victims represented no economic or security importance to the United States, U.Sfielites were significantly less willing to punish the norm violator [same way in classrooms? — tdaxp] (see Table 3, as well as Table 1, rows 1a, 2a, 3b). For instance, the probability that a respondent would be strongly willing to repel an aggressor dropped from .44 to .06, and elites were only half as likely (.23 as opposed to .48) to defend a victim when no U.S. material interests were at stake. In the Persian Gulf experiment, the probability that U.Sfielites were willing to defend Saudi Arabia was .525, and for Kurdistan the probability dropped to .184.

Table 4 arrays decisionsmade to Repel an Aggressor and Defend a Victim across the eight conditions of these experiments. In the Repel an Aggressor experiment, when material interests are present, more than 60 percent of the elites were willing to repel the attacker. In three of four situations of this type 80 percent of the elites chose this course of action. In contrast, in the four situations where material interests were not present, in only one case did even close to one-quarter of the respondents choose to repel the attacker. In the other three cases fewer than 15 percent made this choice. Consistent with the ordered probit findings reported earlier, the situational factors related to normative reasoning had the expected effect within the overriding condition of whether U.S. material interests were present or not. For example, once we took into account whether material interests were at stake, attacks that came “out of the blue” evoked more willingness to repel than did attacks coming as part of a feud [so is this a norm? similarity to GWOT. also, like a lotto-style skinner box — tdaxp] (Table 4, rows 1c and 1d compared to 1a and 1b, rows 1g and 1h compared to 1e and 1f). These effects, however, appear to be quite small compared to the effect of material interests.

The results of the Defend a Victim experiment are more complicated, although in terms of the relative effect of normative obligation and material interest they tell much the same story. In the Repel an Aggressor experiment, the vast majority of elites were willing to use force to repel the attacker and, evidently, did not see a contradiction in using force to punish those who violated the norms of not using force. In the Defend a Victim experiment, staying out of the conflict rather than defending the victim was a more typical response. As in the Repel an Aggressor experiment, however, when U.S. material interests were at stake more of the elites were willing to defend the victim than when interests were not at stake (Table 4, rows 2a, 2b, 2c, 2d). When material interests were at stake, more than 22 percent chose to defend, and in one condition more than two-thirds made this decision. When interests were not engaged, the percentage of respondents willing to defend hovered in the single digits with an important exception.

The data in Table 6 also suggest that although moral reasons play a role in elite decision making, there is substantial disagreement regarding what obligations follow from an international norm in any particular situation. For instance, among those U.Sfielites who were told that U.S. material interests were at stake, roughly the same percentage of those who defended the victim and those who did not defend the victim said moral reasons captured their thinking very well [War of Ideas / 4GW — tdaxp] (Table 6, rows 1b and 2b). Less dramatic but still indicative of difference in normative interpretation are the nearly 63 percent of elites who, when told that no U.S. material interests were at stake, said the moral thing to do was to defend the victim and did so, compared to the more than 25 percent of those who—in the same condition—chose not to defend the victim and said this was the moral thing to do

Second, the results we have presented thus far reflect trends among the U.Sfielite as a whole. This aggregate focus makes sense given our interest in the United States as a collective actor, but it may disguise important individual differences. For instance, the patterns we find may apply to certain types of Americans much more so than to other types. If this were so and a particular type of elite was in power, it would be necessary to know more about that type of elite before commenting on the applicability of our findings. To explore this possibility, we looked for a relationship between well-known fault lines in the U.Sfielite and choices in our experiments. We constructed scales to measure three dispositions that have been found to represent important divisions within the U.Sfielite. They are (1) internationalism versus isolationism, (2) accommodative cooperativeness versus militant assertiveness, and (3) liberal versus con- servative. Table 8 presents ordered probit results that suggest that there are not systematic differences between liberals and conservatives or between internationalists and isolationists when it comes to making choices in our experiments [counterintuitive! certainly not the fashion of the moment… — tdaxp]. Militant assertive elites are more likely to repel aggressors and defend victims. However, they also are more likely to forgive retaliators in the Bus Bomb experiment. This latter finding suggests that the difference between militants and cooperators probably has less to do with felt normative obligations to defend norms than with the proclivity to use force to defend material interests [divides worls into Kaplanophiles and Kaplanoskeptics? – tdaxp].

The United States because of its power is in an unusual position to defend norms and enact system standards. Also, the United States is sufficiently powerful that when it is affected by normative obligation, observers are less likely than in cases of weak states to attribute this to the pressure of external compulsion. Finally, the United States is a critical case because if prescriptive norms are to be treated as important independent determinants of international relations, they need to affect the thinking, rhetoric, and action of the strong and not just the weak [so perhaps there is no one IL? also, would argue that the teacher should also be bound by classrom socialization — tdaxp].

We did not find that U.Sfielites felt compelled to disguise in some form of justificatory ideology the priority granted to U.Sfieconomic and security interests, as Morgenthaumight have expected they would. Our participants may have provided more normatively based explanations for their choices had we asked them to defend their choices publicly. In the confines of our con. dential interview, however, they explained their choicesmostly in terms of U.S. material interest. This was somewhat more true for decisions to act than for decisions not to act, but it suggests that among the U.Sfielite, when U.Sfieconomic and security interests are at stake, taking action is mostly perceived as a morally defensible norm in its own right. This apparent intuitive realist inclinationmay be easy to understand given what Morgenthau called “nationalist universalism,” [how could one argue that this is a norm? — tdaxp] or elevating individual national interests to the level of universal normative prescription; it also may go some distance in explaining why many less powerful states respond with skepticism to U.S.-led calls for a new world order based on normative principles.

Humanitarian Law v. Human Rights Law, plus Refugees

Evolution of International Humanitarian Law
– first humanitarian treaty 1864
– Hague Conferences and Swiss Conventions are complementary traditions
– fusion by 1977
– pushed by evangelical Christians / ICRC and states (to maintain political viability of war) / military officers (?)
– parrelels between Antislavery Society in London and ICRC
– mass / 4G issues because of improved communication technologies
– 4 Geneva Conventions in ’49, 2 protocols in ’77
– irony: International Humanitarian Law (IHL) codifies rights of war, attacking, bombing, etc

Evolution of International Human Rights Law
– first mention of IHR in UN Charter
– second: UN Universal
– Declaration of Human Rights
– but, Hermann Bergers shows how intrawar efforts were at least made
– in Europe, pushed by young democracies attempting to preserve political stability
– IHRL much more state-led than IHL, which had large NGO component
– US/FDR/HST led effort globally
– FDR etc make IHRL part of national interest, because of dangers that “non-human-rights” regimes did
– FDR instructed Department of State to start work on IHRL / UN Charter from ’42 or ’43

Domains
IHL = wartime
IHRL = peacetime
but… Torture Convention (1984) “in times of war or otherwise”
is “war” and “otherwise” all inclusives, or merely two sets?
– Clausewitz/Westphalian and Sun Tzu/Unlimited
– maybe to demonstrate, create two fuzzy sets that show how something could not be either
” times of War and otherwise” v. “times of War and Otherwise”?

International Covenant on Civil and Political Rights
– contains derogable (suspendable) and nonderogable (nonsuspendable) rights
– but…. does the concept of nonderogable rights contrict the UN Charter’s right to self defense, and UN Charter’s “trumping” provision? BC: No one had made that claim before, and no international court or UNSCR supports it
– US ratified, but “not yet bothered” to get around to a Declaration of Derogation — possibly because a declaration would highlight non-derogable portions?

BC: Abu Gharib a distraction; just some guys; “the real issue is intentional torture and mistreatment as authorized”

US answers to “non-judicial; non-factual” review by ICRC

Woodrow Wilson’s 14 Points
– human rights are absent
– because Wilson, “this Southern Presbytarian racist,” was opposed to racial equality
– (remember, he ran against “hyphenated Americans,” “German-Americans,” etc)
– Wilson “would have none of” Japanese racial equality proposal

Murphy: best way to protect IHR is to enforce it domestically

issues that trigger ICC relate to investigation and conviction, not punishment
– a cognitive strategy?
– weak behavioral, social cognitive strategy

Big Cheese: It was Gonzales, and Ashcroft, and Rumsfeld, and people around Rumsfeld, who played fast and loose with detainees — by and large, the military lawyers were aghast.”

Schlessinger Report – an “independent” report critical of the ICRC by “neanderthals”

Refugee Law and Affairs

UNHCR
– first purpose was legalization of European refugee
– originally on a 3-year mandate
– gradually focus more on repatriation
– 1951 Convention defines “refugee” as someone with a well-founded fear of prosectuion. But doesn’t include internally displaced persons (is a self-executing treaty in the US)
– 1956: Soviet invasion of Hungary created refugees in post-WWII situation. Many internally displaced persons (but not “refugees” under 1951 definition)
– every UNHCR always pro-Western and US approved

Know “The Lotis Case”

In Bosnian case, UNHCR wishes to shut down because of harrasment by locals — but US through UN forces them to continue, because the Clinton administration didn’t want to get directly involved

— unrelated: 25 cent tacos at knickerbockers

Three Insurgencies: Early Christianity, Vietnamese Communism, and al Qaeda as case studies for "International Law as a Social Cognitive Battlespace"

Big Cheese approved my idea for a final paper, outlined previously in my notes: International Law as a Social Cognitive Battlespace. BC is skeptical of the Boydian background and the choice of case studies: early Christianity, Vietnamese Communism, and al Qaeda; however, other students were surprised that he approved anything this early, so I will take that as a good sign.

I imagine that most of the “substantive” or original (dare I say gifted?) posts at tdaxp for a while will relate to one part or another of the paper. This is out of habit, but BC said good words about the importance of writing, so I think that is a good idea. Anyway, the structure:

Introduction
International Law
Social Cognition
Battlespaces
Existing Research
Theory
– IL/SC and Realism
– IL/SC and Liberalism
– IL/SC and Constructivism
Practice
– IL/SC and the Rise of al Qaeda
– IL/SC and the Rise of the Vietnamese Communists
– IL/SC and the Rise of Early Christianity
Avenues of Disproof
Conclusions

So, without further adieu, the first, abrig’d, matrix edition of the Practice section:

three_insurgencies_md
3 insurgencies
Early Christianity, Vietnamese Communism, and al Qaeda

Now to extend thsi graphic to 10 pages. Huzzah.

ICRC & UNHCR (Leviathan and SysAdmin?)

Humanitarian protection: The International Committee of the Red Cross and the United Nations High Commissioner for Refugees,” by David Forsythe, International Review of the Red Cross, 30 September 2001, No. 843. p. 675-697, http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList184/853DBBED86D2E170C1256B6600608BCE.

Some excerpts from an article on a certain NGO and a certain IGO. Mostly for my use. Apologies.

Many actors can be involved in humanitarian protection.

Two organizations above all symbolize long-standing efforts to provide humanitarian protection on an international basis: the International Committee of the Red Cross (ICRC) and the Office of the United Nations High Commissioner for Refugees (UNHCR). The two exhibit several fundamental differences. As is well known, the former focused historically on victims of war, and the latter on refugees.Also, the ICRC is private at its core. It is legally incorporated as a private body under the laws of Switzerland, where it is headquartered. Its top policy-making body, the Assembly, which is all-Swiss and maintained by co-optation, formally answers to no other entity.1 UNHCR is clearly public, being part of the extended UN system. It was created bythe UN General Assembly, from which it takes instructions and to which it reports, and its head is approved by that same General Assembly upon nomination by the UN Secretary-General. A small portion of its budget is derived from the UN regular or administrative budget, but like the ICRC it operates mostly on the basis of voluntary contributions from (western) States.

Both the ICRC and UNHCR share a working understanding of humanitarian protection, although neither has explained it as well as analytical observers might wish

Both agencies lobby States to become parties to the relevant parts of international law (international humanitarian law and refugee law) and live up to their commitments. Both make diplomatic and legal representations to States and would-be States (e.g. non-State parties in the form of rebel armies, private militias, etc.) in order to obtain minimal human decency for persons within their mandates.

To do what they are supposed to do, the ICRC and UNHCR must be political in the sense of participating in the political process that determines who gets things of value.

The semantics of neutrality cannot obscure this fact… This effort to advance certain public policies rather than others cannot be, public relations aside, a non-political and value-free stance.

The ICRC and UNHCR without doubt engage in the political process to affect things of value.They primarily try to affect public policies determining individual freedom from: abuse, hunger, the elements, poor physical and mental health, lack of basic education, etc.This is the central meaning of “humanitarian politics.”

To be humanitarian is to be political in this fundamental sense: to engage in the political process to advance social liberalism.

They do not endorse even political liberalism (free and fair elections with protection of civil and political rights), much less other forms of rule, or other distributions of power, on an international or national basis.

To engage in humanitarian protection is to be “otheroriented” for the benefit of persons of concern.

It is quite clear that humanitarian protectors like the ICRC and UNHCR, who are oriented to the welfare of persons ofconcern, often inadvertently have an impact on the strategic or partisan goals of public authorities. The two types of politics sometimes intersect.When in the early 1990s the ICRC acted inside Bosnia and Herzegovina so as to move civilians out of harm’s way, it contributed to the ethnic cleansing then pursued by certain warring parties.

Thirdly, both agencies consider relief, or assistance, to be part of humanitarian protection. Why they have not been able to clearly and consistently explain this linkage is an interesting question.11 The fact that they both continue at times to speak of protection and assistance as if they were two different things raises questions about clear thinking.

The goods and services making up relief are but part of humanitarian protection, not something different from it.

In traditional-protection12 the ICRC and UNHCR are found observing the actions of public authorities toward persons of concern under the relevant international norms. On the basis of these norms the agencies make diplomatic or legal representation to the authorities to ensure that such persons are not abused or otherwise treated wrongly. In relief-protection, there can be an element of observation or supervision, along with the central effort to provide the goods and services necessary for minimal human dignity in exceptional circumstances

Over time a semantic custom has arisen, to which the humanitarian agencies themselves have intermittently contributed, of discussing relief as something apart from protection.

Protecting a person from death by starvation is just as important as protecting a person from death by summary execution.

After World War I, and more systematically some decades later, the ICRC undertook to protect political or security detainees in situations akin to war, namely in times of national unrest (sometimes also called internal disturbances and tensions). It also sought to trace persons missing as a result of armed conflict.Thus it progressively sought to protect victims of war and certain victims of politics, usually first through its own initiatives “on the ground” or “in the field” and then with the endorsement of the international community.

The ICRC lobbied for statements in meetings of the International Conference of the Red Cross and in international humanitarian law that would confirm and perhaps expand its field experience. It also lobbied to create other international law, such as treaties banning anti-personnel landmines or establishing a permanent international criminal court. These latter legal instruments might not
be part of international humanitarian law traditionally understood. But landmines and international criminal justice, among other issues such as the traffic in light weapons, affected victims of war, and so the ICRC lobbied (and was lobbied by others) in the international legislative process.

Like the ICRC, UNHCR found it difficult to confine its humanitarian protection to a well-established but clearly limited group of persons, when similar persons presented pressing humanitarian needs. Both agencies generalized their language, talking of “persons affected by conflict” or “persons of concern” so that various definitional distinctions could be blurred in the interests of providing expanded humanitarian protection.

It was not always easy, for either agency, to clearly curtail or limit its group of intended beneficiaries.The ICRC represented the International Red Cross and Red Crescent Movement in situations of conflict, while the International Federation of Red Cross and Red Crescent Societies coordinated international action in natural emergencies. The two “heads” of the Movement wound up negotiating the 1997 Seville Agreement, which, among other things, tried to define when the direct effects of a conflict were over, and thus when the Federation might replace the ICRC in dealing with certain persons.

.An independent report on UNHCR’s role in Kosovo in 1999 commented that the agency was “armed chiefly with the power of international refugee law and creative diplomacy…”.18 A classic memoir by an ICRC delegate spoke of his being a “warrior without weapons”.19

Relevant is the 1975 Tansley Report, which found thatthe penchant of the ICRC for secrecy was dysfunctional: it was so secretive that it cut itself off from supporting elements in international relations. Most members of National Red Cross Societies, for example, even in Europe, had little idea of what the ICRC was or what it did.

This policy, generally validated by extensive ICRC action across time, has been accepted by international criminal courts, which do not compel officials of the ICRC to testify in criminal cases, since such testimony might undermine its ability to operate in controversial situations.

The ICRC has not always handled well the related problem that silence can be interpreted as complicity in abuse of victims.It is now known that the ICRC did not protest publicly against the Holocaust, certainly in the fall of 1942, even after ICRC efforts to gain systematic and meaningful access to German concentration camps had come to naught.

Likewise, the agency did not hesitate to publicly castigate Indonesian authorities in West Timor for lack of security arrangements that led to the deaths of three UNHCR staff in 2000.

Whether it is the more correct policy is a more complicated question. This writer believes that ICRC reluctance to disengage from an abusive situation, with a public statement indicating why, allows Machiavellian parties to manipulate the ICRC

As for the ICRC, while it is no longer true to say that it seemed to be the humanitarian arm of the Swiss foreign ministry, it remains true that relations between the ICRC and Berne are special. The agency’s current president a officials in the Swiss foreign ministry, and Berne contributes more funds to the regular or administrative budget of the ICRC than any other State.

An independent report on the agency in Kosovo found that UNHCR did not fall under the control of NATO, but rather on occasion took a view on protection matters that was definitely not appreciated in NATO capitals.

Worse still for UNHCR, in that western governments dealt with unrest in the Balkans by adopting policies requiring UN agencies to keep those forcibly displaced within the Balkans and therefore distant from western State boundaries where they might lodge a claim for asylum, UNHCR was pushed into a position whereby it undermined the right to seek and enjoy asylum.

As a result of other policies established by thedonor States, for example forbidding UNPROFOR to transport civilians out of Bosnia, UNHCR became part of a new western policy of containment, namely to keep those uprooted by persecution and war in Bosnia by caring for them where they were, so as to minimize inconvenience to western governments concerned about unwanted migration

That concept of protection is paradoxical in that it is both political and non-political at the same time: political in that the two agencies lobby to advance social liberalism as public policy; non-political in that they eschew strategic and partisan advantage for States as much as the context allow

The history of both the ICRC and UNHCR shows international support in principle for what they attempt to do, as well as a widening, if overlapping, focus on persons in dire straits as a result of conflict.

… and with special guest star …

Introduce Special Guest Star and his article on the IMF/WB

Most research on Bretton Words focus on outcomes, but what about their internal politics
collective decisions through weighted voting as alternative to Westphalian vote (UNGA), or great-power veto (UNSC)
“weighted voting” borrowed from corporate governance

Criterea for Reforms…
weights should be “sensible” and coherent to the organization’s objective
“base” or “basic” vote gives ever state a minimum number of votes
but… while growed from 40 to 188 members, basic votes as percentage of total votes has drastically declined

Asisignment Problem (1 instrument for each policy goal)
… yet “votes” are 1 instrument for many objectives

Revised Variables
1. Access to Resources (variability of trade) – capital flows more important now
2. Trade — should intra-EU/eurozone trade be “international trade”?
3. Use GDP/PPP rather than GDP/exchange ranges (Japanese v Chinese international political economic power)
4. Population as new variable (but non-instrumental, so unlikely)

Quota Formula Review Group
– focused more on GDP — but outcomes were viewed as unwanted and useless , so not approved
– “an answer to no question in particular”

maybe a mix of gdp/ppp, pop, basic votes (US loses de facto veto) or gdp/ppp, basic votes (US keeps veto)

Reform for Executive Board
– formed of “IMF Constituencies” or voting groups (some geographic, some linguistic, plus US, UK, GDP, France, plus “elected” but defacto KSA, PRC)
– despite elaborate Executive Board system, IMF rums by Executive Director’s “sense of the meeting” (byzantine consensus)
– does thi smean “real” IMF decisions are made by/in the G7?

Specific Majorities
– different requirements for different types of majorities (from 50% to 85%)

“Prefered Alternative” / Double Majority Syste,
– would weaken US power
– requires both majority of weighted and majority of countries
– WB suggests majority of developed (Core) + majority of “developing” (Gap) countries — but no special category for Seam??
– but IMF has “equality” principal (only one class of membership)

(ROK was unique as OECD country that needed the IMF)

Big Cheese comments
– all organized efforts need decision rules — power v “democracy” (whether IGOs, NGOs, governments, etc)
– WB “nittier and gritter” than IMF — more “on the ground”
– Japanese/Chinese attempts to buil “Asian Monetary Fund” torpedoed byh IMF/US — but Japan wanted to create AMF earlier and PRC wanted to delay (because of growing PRC power)
– Argentina default an exception (Seam) because most Gap countries could not survive default ot IMF
– major crisis needed for significant reforms? Or US vote just falls below 15% (lose de facto veteo) Or regional/Asian alternative

Personnel Reforms
– lack of “passport diversity”
– too many neoclassicists? (apply to universities? – David Horowitz / VDH — ideological tactic of the weak)
– WB/IMF has typically weak executives — but what about McNamara, Wolfensen, Wolfowitz?
– actual question from fellow student: “Is there anything good about the IMF? At all?”

IMF/WB most important US / “Washington Consensus” Introument
– but what about war regimes, “crisis capitalism,” as instruments…
– original “Washington Consensus” didn’t include free capital flows?
– bilateral / regional free trade agreements

Genology of the Paper
– in an ongoing series
– many, many changes, reorgs etc,
– “publishing” as very slow OODA cycle??

—–

FINAL PAPER IDEA

“International Law as Social Cognitive Battlespace”
Possible Structure:

Introduction
International Law
Social Cognition
Battlespaces
Existing Research
Theory
– IL/SC and Realism
– IL/SC and Liberalism
– IL/SC and Constructivism
Practice
– IL/SC and the Rise of al Qaeda
– IL/SC and the Rise of the Vietnamese Communists
– IL/SC and the Rise of Early Christianity
Avenues of Disproof
Conclusions

Back to Big Cheese:

On Ecology:
– a set of substantive, rules, decision-making rules, and principals create a Regime, as in Ozone Diplomacy
– ozone fundign decisions requires rich-poor double majority
– benedict (255 / Appendix C) – document giving directions for deciding funding

GEFGlobal Environmental Facility– mix of World Bank and UN
– a fusion of San Francisco and Bretton Woods
– the direction of WM/IMF in general?

(Big Cheese: Reagan ’81-’85, Bush ’01-’05 as “romantic American nationalism”)
(reminder: WB annual dispersements of $40 bil; UN regular budget of $1 bil; ICRC yearly $600 mil)

sustainable development – “developing in a way that doesn’t leave the environment worse off for the next generation”

framework convention – nonspecific but legally binding “agreement to agree” on a solution to a problem

protocol – a treaty that is added to another treaty
– “host” treaty does not have to be a framework convention
– for example, Protocol 1 and Protocol 2 added to Geneva Convention

IPCC – international panel on climate change (an epistemic community)

epistemic community – “knowledge”/”science” based “nonpolitical” group of experts/knowledge base
but compare to wikipedia:

An epistemic community consists of those who accept one version of a story, or one version of validating a story. Michel Foucault referred more elaborately to mathesis as a rigorous episteme suitable for enabling cohesion of a discourse and thus uniting a community of its followers. In philosophy of science and systems science the process of forming a self-maintaining epistemic community is sometimes called a mindset. In politics, a tendency or faction is usually described in very similar terms.

Most researchers carefully distinguish between epistemic forms of community and “real” or “bodily” community which consists of people sharing risk, especially bodily risk. Some feminist scholars and ethicists are of the opinion that epistemic community follows logos and is thus effectively male.

As this view suggests, it is also difficult to draw the line between these modern ideas and more ancient ones: Joseph Campbell’s concept of myth from cultural anthropology, Carl Jung’s concept of archetype in psychology. Some consider forming an epistemic community a deep human need, and ultimately a mythical or even religious obligation. Among these very notably are E. O. Wilson and Ellen Dissanayake, an American historian of aesthetics, who famously argued that almost all of our broadly shared conceptual metaphors centre on one basic idea of safety, that of “home”.

From this view, an epistemic community may be seen as a group of people who do not have any specific history together, but search for a common idea of home, e.g. as if forming an intentional community.

AKA – Transnational networks of knowledge-based experts that define for decision-makers what the problems they face are, and what they should do about them.

Montrol Protocol (addition to Vienna) helped by scientific consensus on ozone and feasible economic alternatives

(BC: “in the meantime you had the idiot Reagan who said, international law, we don’t need that”)

BC: “The ozone problem was an easy one to solve, and all it took was years and years and years and to overcome the American administration. But you had to overcome the ideologues in the administration and make them practical” … an elite 4GW?

BC: “Particularly when you have the Bush administration who is unilateralist, and ultra-nationalist, and John Bolton…”

Global Warming “harder” than ozone because
– more expensive fixes
– less clear dangers

Eckersley’s analysis of climate change
– coherent action requires coherent Orientation (requires constructivism)
very nice discussion on this!
– very 4G?
– so need to be a constructivist to battle climate change — but what about empiricists a la Hammes?
– construvism “collapses into” realism if one accepts non-state actors and soft-power?
– “culture of relating” — ????

"lunatic right" now in office

Lecture Notes for Internationa Law *sigh*

World Bank and International Monetary Fund (Bank/Fund or Bunk)
– Bredon Woods / post-War / pre-UN institutions

functionalism – theory of “apolitical” IGOs (inter-governmental organizations) that seeks to build a world community through technical cooperation
– first IGOs like international telegraph, european rivers association in 19th century were functionalist

San Francisco (UN)/Bunk (Breton Woods) built of functionalist, conference, and League of Nations precedents

material for International Law as Social Cognitive Battlespace:

Ikenberry: US created bunk because US can dominate them, plus gives US “credibility”
– “strategic restraint”
– example of creating international law to improve international legitimacy to make it easier to break law later?
– use social cognition to teach cognitively to weak unfavorable social cognition lessons? (eg Kosovo War)
– strategic restrain in Iraq run-up?

conditionality: only loan if conditions are met
built to make America look like “benign hegemon” instead of “threatening dominator”
US only has 17% of votes for bunks, but 85% is minimum “majority” for many actions, so US has de facto veto
with national contributions, WB then uses cash as collatoral to raise more money
yearly, WB gives $40 bil, UN regular budget is $1 bil

Independence of Secretariats: Rules for the World: Barnett and Finnemore claim Bank secretariat weak, donors strong
(interesting research ideas: can you show WB President McNamara going against US and winning?)

Bunk’s constituent documents are explicitly non-political (cannot look at political ramifications)
– WB tried this, got introuble for Portugal and South Africa loans, now is political but denies it
– think of “good governance” requirements: political issues effect “development,” “resonably broad” definitions

trifecta of institution types: technical, legal, political…. are they political or economic (both)
_but_, WB says “No leans for Serbia until Belgrade hands over indicted war criminals to ICJY
similar for WB suspension of loans to Allende
evolving notions of “good governance” – strategic, limited growth of definitions
– WB has tribunal for projects in a country (individual right of petition within the bank) – emerging human rights

right criticism at “socialist” World Bank during ’70s “absolutely crazy” .. “lunatic right” now in office

Traditionally, WB is longer term than IMF, but disction fuzzes from ’70s — both now focus on structural loans

“you bureaucratize to create specific organizations to do a specific job — but mission creep undermines this”

World Trade Organizations (WTO)
trips – intellectual property rights as absolute necessity?
irony: “sanctions for trade”

Hathaway and Koh (306) – why stronger mechanisms to protect trade than human rights/ecology
“constructive engagement” – hypocracy in liberal views of “South Africa” and “China”
US, Russia, China united in opposition to International Criminal Court (ICC), France qualified yes, UK only UNSC5 which fully supports

Law of the Sea
– affects oceans / lots of stuff / has a tribunal
– half of proceeds to developing countries (?!?!?)
– Bush now supporting but GOP Senate opposes?
– US declares parts it like as “customary international law”

Use of Force

UN Charter
Chapter VI: peaceful settlement of disputes (nonbinding)
Chapter VII: enforcement (binding)

Article II/4 “All members… shall refrain from force”
permitted action: self-defense after armed attack (51)

3 Situations for Lawful Self-Defense
1) if an armed attack has occured (whether by state or non-state party)
2) imminent threat of armed attack (Carrolene case from 19th century, US v. Canada/UK)
3) “anticipatory self-defense” – six day war – UNSC didn’t condemn — so assent through silence?
Bush) right to use force without imminent threat of attack?

Remember, question of “Recourse to War” different from “Conduct of War”

John Yew (former DOJ) argues Iraq was in material breach — defends war that war

The Two “Legally Binding” UN actions:
Chapter VII (from UNSC)
Budget & “Contributions” (from General Assembly)

In Cuban Missle Crisis, Abraham Sheas – legal advisor to State Department — creatively used the law to help his department

battling ideas: “The Ideas that Conquered the World”

“clear and present danger” == “imminment danger” (?)

How do “no fly zones” work with “quarantines” — ambiguous non-interventions?

legal standing of nontechnocratic/nonindustrialized great power force exchange?

q: do military alliances contradict the logic of global collective security?

UNSCR 1441 “perfect example of diplomatic ambiguity”

ICJ “less political” / “more legal” than UNSC because ICJ decisions “should be” taking only legal reasoning into account

battlespaces:

legal refers to rule of law
political refers to rule of ???? (power?)

“New Haven School of International Law” explicitly shows judges as politicla operators, politicals in the context of laws
Article XXV – states shall carry about decisions of the UNSC made under Chapter VII
“law exists to enhance sense of obligation” — social pychology / social cognition implications?

In Libya case, ICJ acted as if it could review UNSCRs — but upheld the UNSCR
but, has UNSC ever acted as if it could review ICJ decisions?
Libya case was similar to Marbury v. Madison

US seems to favor UNSC over ICJ, because UNSC is more useful / US has more influence there
– because ICJ negativist, UNSC positivist?

Legal Status of Humanitarian Intervention
– legally grey & opaque
– on Kosovo, that Russia didn’t get its condemnation passed was backhanded approval? (like Six Day War but moreso?)

R2P: Canada’s “Responsibility to Protect” report
– argues that state soveregnty implies a responsibility to protect
– but no treat on humanitarian intevention (opposed by Gap / Global South, mostly)
– African Union says humanitarian intervention OK as long as AU approves
– UNSC can authorize anyway under “international peace and security” considerations
– R2P end of Westphalia?

As Kosovo War went on, “dual use” targets were used, North Atlantic Council listened to less, etc

Carlo Deponte, head prosecutor for ICJY, declines to charge NATO personell

“proportionality” is one of the vaguest parts of the law of war