Tag Archives: international law

The Military-Industrial-Sysadmin-Complex in the context of International Law

I’m not a fan of international law, said “law” being merely a compendium of the arbitrary decrees of those despots who proceeded us — but Adrian was kind enough to highlight some interesting developments in the field that related to the Military-Industrial-Sysadmin-Complex (MISC) that is needed to shrink the gap.

Specifically, he pointed me to the article “For a Capability to Protect from David C. Gompert in Survival 48(1). The article highlights two stages of post-Westphalian thought: the right to protect and the responsibility to protect, as well as an emerging one: the need for a capability to protect.

Gompert emphasizes that the idea of a United Nations standing army is going nowhere, and cannot provide true worldwide peace-enforcing capability.

The MISC is such a capability. We need a flexible force, supported by industry, the bureaucracy, and the government, that can “surge” peace into any area of the globe.

In Hamdan v. Rumsfeld, the Supreme Court Limits International Law

International Law v. United States,” by Andrew McCarthy, Commentary, February 2006, http://www.commentarymagazine.com/Production/files/McCarthy_0206.html (from The Corner).

Here’s why I’m not worried about the Hamdan decision (and it’s not just that the Supreme Court smacked around “international law” the day before).

First, note what the intellectual right-wing was saying early this year: that the “Law of Nations” described in the Constitution should be narrowly interpreted.

Still, the framers held firm to the imperatives of self-determination and limited interference. The Constitution prescribed a system of enumerated powers, sufficient to secure the nation and promote commerce but respectful of individual choice and local sovereignty. Any authority not expressly assigned to one of the three federal branches was reserved to the states and the people. If new law was needed or if current law required mending, the divisions of authority were reasonably clear: matters of immediate, parochial concern were to be taken up by representatives and courts at the state and local level; the federal governmenta sliver of the present-day behemothwas reserved for those relatively few issues that transcended state boundaries.

The first was the law of nations. In a very useful recent book, Jeremy Rabkin explains that this term of art, culled from Blackstones Commentaries, related specifically to piracy and mercantile shipping (both of which lay outside the jurisdiction of any nation) as well as to the need to provide safe harbor for lawful foreign nationals, including diplomats. And, finite as this was, the framers constrained it still further. Under Article I of the Constitution, the law of nations was to have domestic application only if Congress chose to define and punish offenses against itand regardless of what other nations might regard as a violation.

The Supreme Court agrees

Ultimately, Hamdan v. Rumsfeld is best read as the Supreme Court limiting international law by refusing to grant the Bush’s administration expansive interpretation of it.

There is no suggestion that Congress has, in exercise of its constitutional authority to “define and punish . . . Offences against the Law of Nations,” U. S. Const., Art. I, §8, cl. 10, positively identified “conspiracy” as a war crime.33 As we explained in Quirin, that is not necessarily fatal to the Government’s claim of authority to try the alleged offense by military commission; Congress, through Article 21 of the UCMJ, has “incorporated by reference” the common law of war, which may render triable by military commission certain offenses not defined by statute. 317 U. S., at 30. When, however, neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution. Cf. Loving v. United States, 517 U. S. 748, 771 (1996) (acknowledging that Congress “may not delegate the power to make laws”); Reid, 354 U. S., at 23–24 (“The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds”); The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison) (“The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny”).3

At a minimum, the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction,35 and does not appear in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.36 Winthrop explains that under the common law governing military commissions, it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt. See Winthrop 841 (“[T]he jurisdiction of the military commission should be restricted to cases of offence consisting in overt acts, i.e., in unlawful commissions or actual attempts to commit, and not in intentions merely.”

Good job!

(More thoughts from Captain Ed, The Glittering Eye, Mark Safranski, Shannon Loves disagrees.)

Taiwan, a Quasi-Trusteeship under United States Military Government within the United States Insular Law Framekwork?

Two fun Taiwan pieces today. First, The Korea Liberator wonders if there was a failed Taiwanese coup in 2004. Second (and also from TKL) — is Taiwan American soil?

Let’s look at Taiwan. All military attacks against Taiwan during the World War II period were conducted by the United States, so the U.S. is the “conqueror.” The surrender of the Japanese military forces in Formosa was on Oct. 25, 1945, thus beginning the military occupation, and the administrative authority for this military occupation was delegated to Chiang Kai-shek (aka the Chinese nationalists or Republic of China). The treaty between the U.S. and Japan came into effect on April 28, 1952. Japan renounced the territorial sovereignty of Taiwan, but no receiving country was named. The Republic of China flag should have come down at this point.

While the KMT (Chinese Nationalist) “white terror” in Taiwan was nothing compared to the CCP (Chinese Communist) “red terror” in China, it is a mistake to think that either were popular parties in their respective countries.

Some have criticized Taiwanese plans to change their official name to Republic of China (Taiwan). How ironic if the Taiwan Republic was never Chinese at all…

John Roberts and the Supreme Court Disparage "International Law." Good.

Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente Uniao do Vegetal et al.: On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit,” by John Roberts et al, Supreme Court of the United States, 21 February 2006, http://www.supremecourtus.gov/opinions/05pdf/04-1084.pdf.

While not quite as succinct as Justice Antonin Scalia’s criticism of international law, Chief Justice has officially put “” in its place

John Roberts: Lord of International Law

The case, which struck down a federal drug law, was well decided. That is good. The government gave an incompetent and lackluster defense. That is typical. But what’s wonderful is this paragraph

The fact that hoasca is covered by the [U. N. Commentary on the Convention on Psycho­tropic Substances], however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs. See Declaration of Gary T. Sheridan (Jan. 24, 2001), App. G to App. to Pet. for Cert. 261a; Declaration of Robert E. Dalton (Jan. 24, 2001), App. H, id., at 265a. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under [the ] invocation of such general interests, standing alone, is not enough.

In other words, the Court has affirmed two principles

  • First, treaties have to meet a “compelling interest” before they trump certain domestic laws, such as the
  • and Second, international law is only valid in the context of “international consequences,” not as laws unto themselves

Those who support America’s submission to “international law” often cite the second paragraph of Article VI of the US Constitution

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Constitution lists three sources of the “supreme law of the land”

  • the Constitution itself
  • the laws of the United States
  • all treaties made

However, in the same sentence, the Constitution instructs all judges to be bound by that, notwithstanding

  • “anything in the Constitution,” or
  • “the laws of any State”

In other words, the Constitution identifies three sources of Supreme Law (the Constitution, Laws, and Treaties), and then identifies the Constitution and the Laws as the most important of these. The Supreme Court may listen to government pleas that it has an interest in some treaty, or that some treaty beneficial consequence to the United States.

Treaties are the least democratic source of “law,” because they are enacted by the joint action of the President (who is indirectly elected through the Electoral College) and the Senate (which represents the States, and thus has equal representation for states regardless of the population). Under our democratic system of government, treaties are rightfully deprived of much power and influence.

As the historian Mark Safranski wrote:

Most of what passes for ” International Law ” are simply arguable moral claims advanced by interested parties. The most solidly ” legal ” core of international law is considered binding because nations-states have agreed almost universally to restrict themselves with certain provisions out of self-interest. Enforcement comes only in the cases of the most egregious violations when the moral outrage of the world can be coupled with the selfish interests of the great powers to intervene. That is about the best we can expect from such a system and if ardent advocates of International Law Theory get their way, we won’t even have that much.

International law is best taken with a healthy dose of common sense.

The recognizes this.


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

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

– 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

"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


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

International Law and Boydian Instructional Psychology

Murphy — 2 major ways of creating law without legislatures
– treaties – silence is refusal
– customs – silence is consent
– but — treatiest and customs can intersect

“use cogens” is a rule of law that lawfully supercedes any other rule
– but no agreement on list of “use cogens”, or agreement on definitions

distinction between International Law and International legitimacy
– “be careful when using legitimate and legitimacy”
– legitimacy is what is considered “appropriate” or “reasonable” (like stealing food and water after a hurricane)
– this sounds like “cognition,” and law is “social cognition” — but then what is behavioralism?
– murky law as part of underdeveloped institution of weak systems?

Executive Agreements are treaties in the international sense, but not in the domestic sense

“Hard Law” and “Soft Law” can be thought of as fuzzy categories

similarly, in fuzy logic,

cold: [0 .. 60]
warm: [50 .. 100]

Open Questions

Law = Social Cognition = Moral Warfare ??
Pragmatism = Behavioralism = Physical Warfare ??
Legitimacy = Cognition = Mental Warfare ??

Implications for 3GW/4GW/5GW ?
Visualize as 3D box?

Self-Executing Treaties are automatically domestic law; not so with non-self-executing treaties

RUDs = reservations, understandings, and declarations
Missouri v Holland: treaties can trump states rights

Monisms v Dualisms: is international law the same as national law (America is dualistis, so not here)

“Stand-off Capacity” = counterveiling power (?)

International Court of Justice (ICJ)
– power is advisory (moral / social cognitive / internationally lawful)
– cases get to it when certain states request it, may be listed in a treaty
– of the UNSC5, only UK has given general compulsary declarative (GCD) power to ICJ – -meaning of the UNSC5, ICJ rulings are domestic law only in UK
– previously, had qualified GCD in USA, but lost after Nicaragua v. USA
– states can have foreign policies in areas that are not prempted by federal government

Filartiga (sp?) (1980) and Alien Tort Claims Act (1970)
– US upheld tort against Paraguay for torture of Paraguayan in Paraguay
– used customary international law
– “ended” or “ending” now?
– Carter admin encouraged the Court to rule as it did