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This page is for posts that extend the discussion beyond our seminar meetings. Here, students may post follow-ups, responses, and critical reactions to the discussions we have in class.

38 Responses to “Extended Discussion”

  1. Wemyss "Scooter" Scott says:

    Is international law an oxymoron?
    This question has come up on numerous occasions already in our class, as we try to determine whether or not international law can truly work. For me, I find that the term cannot be classified as a complete oxymoron, but there are significant barriers and hindrances that may true international law a difficult goal to achieve. The biggest issue that jumps out for me is the immense difficulty in finding and defining actual “law” that can be agreed upon by most countries of the world. There are likley some things to which all (or most) can agree, take genocide for example, but there is more than one level to agreement. Not only must there be agreement on the actual offense, but also regarding timing of intervention and application of punishment. At what point do a state’s actions become genocidal? Who decides that? Overall, while international law is a concept with great aspirations and an institution that will continue to play a significant role in world politics, there are still and always will be barriers that make it difficult to apply.

  2. Eleanor Johnstone says:

    I would like to return to our Thursday discussion of stare decisis and its applicability to national and international law. While international law is theoretically not bound by stare decisis it is heavily based on treaties and customs. This includes the regulation of opinio juris, which as Anna pointed out is surprisingly key to building successful international relations and therefore to collaborating well under a common legal system. I would argue that the commitments involved in opinio juris provoke the international legal system to obey a kind of stare decisis. Furthermore, and as Eliana pointed out in her comment about the deceptive and cumbersome nature of legal language, it seems that while the international legal system is supposed to operate without stare decisis in order to work freely and broadly, it is actually heavily dependent on precedent and, in trying to dance around it, only ends up congesting the legal process. This gets back to our first discussion, is international law an oxymoron. If it cannot depend on stare decisis, must respect opinio juris, and still come out with substantial, effective, and innovative rulings on international matters, then I doubt that international law can be a very effective system. I expect that we will soon be reading more on this, but I’d like to throw out the question–what kind of structures are available to guide successful and innovative law making on the international level? How innovative and effective have international rulings been in the past fifty years? Stare decisis is absent in international law in order to recommend the system to progress; what then fosters the intended purpose of its absence, the growth of innovative and widely applicable law?

  3. Matt D'Auria says:

    I would like to add an additional dynamic to Tuesday’s discussion on whether international law is an oxymoron. Opinions seemed to be rather split on the subject during class, but some people did choose to answer that question in the affirmative (I myself find it difficult to have complete faith in a system of laws that can bind all sovereign entities.) But my question is: to what extent should we be concerned if international law is indeed an oxymoron? I guess a related important question would be: To what extent do we rely on the acknowledgement and the enforcement of norms of customary international law to help promote the betterment/survival of a globalized human society? If the answer to this latter question is “greatly” or even “moderately,” and yet the concept of international law can rightly be considered an oxymoron, is the world bound for hell in a handbasket? Once again, to what extent should we be concerned? I am hoping that our future discussions and readings will help to provide answers to these questions.

  4. James Landenberger says:

    Matt brings up a key point. Whether international law is oxymoronic or not, whether it is evaluated through the “instrumentalist optic” or the “normative optic,” these questions are only useful insofar as they inform the more pragmatic issue of functionality on the international level. Since, as we discussed on Thursday, there is no third-party adjudicating force on the level of international law, standards of conduct that are to apply to all states equally are by nature fragile and subject to change. So any question about international law should address the issue of feasibility/functionality.

    What is it that motivates—or could motivate—a nation to adhere to an international standard of law? At the moment , as Eleanor points out, stare decisis (at least nominally) has dominated as a principle authoritative force, motivation. But that’s not to say that at some point in the future the international lawmaking bodies (ICJ for example) won’t take on a more legislative (innovative) role. And there’s also a possibility that international relations might degenerate, in which case stare decisis and jus cogens would likely become weaker motivational forces, much weaker than they are today. The strength of law-abiding motivation changes in time, depending on international norms.

    The readings for tomorrow, Thucydides , Grotius, and Hobbes all propose candidates for law-abiding motivation. (Are contracting states motivated by a natural proclivity towards cooperation, or are they motivated by mutual distrust?) So the important question in relation to the readings, I think, is which of these motivations are sufficiently strong? Which of them, when applied to international relations today, ACTUALLY motivate? And then the normative question would be, which of them COULD motivate?

  5. Brian Watroba says:

    @ Eleanor

    Judging from what I’ve already read for this class, I think the reason stare decisis is absent from international law is because its framers don’t want it to be too strongly influenced by the legal systems and court decisions of any specific country. This seems to be the biggest challenge for international law: both deciding which norms are universal and which are specific to a certain country, and also building a legal system that isn’t so strongly influenced by the systems of powerful countries like the U.S.. Epps claims, for instance, that “International decisions refer to authors’ works much less frequently. This may be due in part to … the judges’ fears of being perceived as relying too heavily on authors from one particular country or one particular legal system” (Epps 28).

    While basing international law strictly on agreeable, international norms instead of importing other countries’ court decisions is seen as a good thing–it separates international law from national law–could it also be seen as a disadvantage? For instance, in the dissenting opinion of the Pfizer case, the judge claimed that “non-consensual medical experimentation by private actors, though deplorable, is not actionable under international law” (Epps 20). What the judge identifies as a “deplorable” offense is able to slip through the international court system without justice, only because legal authorities are trying to so compulsively separate international and national law.

  6. Nadia Schreiber says:

    I would like to go back to our discussion of Holmes from Thursday. While I agree with completely that jurists fill in their own ideals and morals when making decisions, I disagree that they claim they don’t. A judge in this country is charged with interpreting the laws and the constitution in order to fairly decide the outcome of a legal dispute. Implicit in this charge is the fact that they justice’s beliefs will come into play. One cannot interpret something without opinions upon which to base that interpretation.
    In a perfect world, all jurists would reach the same conclusions for the same case. But, thankfully, we do not live in a perfect world. If all similar cases were decided in exactly the same way, there would almost be no need for a judicial system – you could just look at previous precedent. The fact that cases are decided on a case by case basis by different judges with different ways of interpreting the law allows for a variety of social and political changes to be made, and their effects seen.

  7. Matt D'Auria says:

    I would like to revisit Justice Scalia’s Rule of Law as a Law of Rules article. Specifically, I would like to explore his argument concerning the strong link between the establishment of general rules of law and the equal treatment of all citizens. In the article, Scalia suggests that by establishing clear, overarching generalizations by which all of the courts are bound (or “hedged in” as Scalia puts it), the nation’s judicial system is better able to ensure equal treatment of its citizens. The rationale? Scalia argues that because all cases that seem remotely similar (and can therefore be “categorized”) will be dealt with in the same way (i.e., will receive the same verdict), citizens will be treated in a consistent, egalitarian manner. I disagree with Scalia’s reasoning. In my mind, the act of trying to uphold the Equal Protection Clause of the US Constitution requires one to first answer the important question: how are individual citizens “protected” by the law? I’ve never taken a course on constitutional law, so I approach this question with no real legal knowledge or experience, but it would seem to me that the law protects the parties in a lawsuit by being flexible to consider the individual facts of a given case. If the courts are forced to adhere to general rules so that they systematically disregard individual circumstances that could help to distinguish the case at hand from previous decisions, how can they be said to be offering the involved individuals protection under the law? If the facts of a case are so different from those of a previous one that the outcome of the case SHOULD ALSO be different, and yet the judges are too constrained by an overarching generalization to deliver the more just ruling, how has the deserving party received protection under the law? How can you be protected by the law if it is so rigid that it essentially cheats you out of a fair trial?

    Secondly, I am confused about Scalia’s argument concerning the effect that the absence of general rules will have on the uniformity of the law. Towards the beginning of his article (pp. 1178-1179), he writes that one reason why the establishment of general rules is so important is because the US Supreme court can only review “an insignificant proportion” of cases decided by the states. If general rules are not created to guide those state rulings, then state courts will inevitably hand down different decisions (through “totality of the circumstances” tests) that may establish conflicting precedent ; the US Supreme Court, hampered by limited amounts of time, will not be able to review and “correct” the inconsistency of these decisions. Thus, uniformity in the law goes out the window. Scalia argues that this is a serious problem, as it also destroys the notion of predictability.
    However, later on (p. 1186) Scalia writes that the states should (for the most part) be the ones to deal with “essentially factual determinations” (including “reasonable seizure” cases that require a totality of the circumstances test) because the US Supreme Court can tolerate “a fair degree of diversity” in the decisions of state courts. Do these two statements contradict one another and thus slightly undermine Scalia’s own argument for the establishment of general rules? First he’s worried about uniformity, and then he says it can be tolerated to a certain extent.
    I’m pretty sure that I have misinterpreted his point (as Scalia seems too brilliant a man to leave blatant contradictions in his argumentation) but can someone explain to me the difference between these two situations?

  8. Wemyss "Scooter" Scott says:

    I would like to compare and contrast a few of the key elements of the readings from Kennedy and Scalia, as they offer differing perspectives on a controversial topic. Scalia argues that law should be built upon overarching, general rules that are put in place before events occur, ensuring that there will be justice after the fact. These rules, according to Scalia, would create both predictability and uniformity in the law. Offering another perspective, Kennedy maintains that law should be handled on a case by case basis, with attention paid to individual details and situations. Cases should be decided after the fact, and the law is not (and should not be) gapless.
    After reading and discussing these two ideas in class, I find that my thoughts align more with Kennedy than Scalia. I believe that Scalia’s goal of an overarching law is flawed, and potentially dangerous. I found it a bit disturbing when he went as far as to say that “a bad rule is better than no rule.” Is it? I don’t think so. Rather, I would side with Kennedy. Law cannot be gapless, it is inevitable that at some point in legal process the politics of the judges involved will play a role. Though there is a strong argument saying that this politicalization of politics is in itself wrong, I find that it is a better option than incorporating an overarching set of rules that eliminates attention to individual details.

  9. Eleanor Johnstone says:

    First of all, I agree with Scooter’s comment. His conclusion questioning the value of a bad law resembles my own doubts about the ways in which stare decisis tends to be used and the fine lines that it creates.

    Secondly, it relates to my question for this post. In “Legal Formalism” Kennedy describes the idea as a derivative of primitive formalism and formulary justice/strict law. The definitions that he gives for these two branches are familiar to historians but also obviously dated and irrational by modern standards. Therefore I was surprised when he wrote that “Modern law, in the nineteenth century view, was characterized by its movement beyond both primitive formalism and formulary justice, but had to find a way to preserve some of the virtues of these earlier systems.” I understand that this statement refers to 19th century law, but still, what virtues were present in either branch that should be maintained? Was it the historical value of glory and tradition? Both of these seem both antiquated and contrary to ‘progress.’ Perhaps he is referring to classical democracy, although oracles wouldn’t hold much water in present democratic systems. I had a hard time reading Kennedy and it is quite possible that I just missed something, but this seemed like a significant statement that he never quite followed up on.

  10. Patrick says:

    While we imagine our national and international legal systems to be well structured and resistant to change, the nature of other political systems and changing ideologies assure that adaptation is necessary. Kennedy’s assertion that that rules should be individually applied allows this necessary progress but at the risk of establishing dangerous precedent. Justice Antonin Scalia’s resistance to this post transgression interpretation is well publicized. He is often cited as a strict constitutionalist in comparison to “dangerous and radical” activist judges. In reality, Scalia has made similarly interpretive rulings. Specifically, he has been criticized for reinterpreting the 11th amendment to block certain cases.
    The increased right of judicial activism is partially a result of the gaps in the legal framework that Scalia so detests. However, some of this activity may be related to the current character of congress. In times of gridlock other policy pathways may be used increasingly to establish law.
    In the case of environmental legislation, quagmire in congress has led to the use of appropriations bills, state laws, and the court system. Rulings that govern major environmental laws (Endangered Species Act, Clean Air Act, etc.) have been established in courts instead of congress.
    Scalia’s overarching framework is an admirable goal but not consistent with political realities.

  11. Diana Chiu says:

    In response to Scooter and Eleanor’s post, I agree that having a bad law as opposed to having no law is quite the unpalatable concept. Yet, at the same time, I agree with Scalia and contend that finding exceptions to rules of laws in one person’s pursuit of a self-construed justice is much more dangerous. How do we know whose “competing values” are indeed the “perfect” one? Relativism can lead us down a slippery slope. Initially, upon reading Scalia’s argument, I questioned why there was a need for judges at all if every case and situation can be adjudicated upon by general laws. But upon closer reading, Scalia is not absolutely closed to the idea of a law growing and developing. It simply isn’t the place of judges to do so. Plea bargains and sentencing can determine the degree of punishment. The absence of law, as well as the concept of adjudicating case-by-case only allows Holmes’ bad man to exploit the system.

  12. Chime Dolma says:

    Blog Posting#4
    Response to Today’s discussion on Afghanistan/Terrorist

    Anna brought up this brilliant example of what Kenneth was somewhat arguing about- his assertion of preventing these unbeneficial wars.
    Anna seems to agree that in the case of Afghanistan (if I didn’t misunderstand you) that this war should be ended with negotiation with the terrorist. Indeed I agree with the point that there needs to be some “rational” negotiation, but then the question is; practically, is this something that would be achievable? When I think of negotiation, I strongly believe that these two groups/actors have to have a common interest and ground. The fact that we (at least I am) are uncertain what the terrorists’ objectives are, can we really treat these non-state actors as an entity who has objectives? Moreover, if both of these actors (US and the terrorists) are fighting for one thing, basically competing who gets to be the dominant power in the world makes it seem impossible to have such negotiation. Also, I believe it was Patrick who pointed out that the fact that we (United States) have already set a task with an objective to eliminate Al-Qaida and Taliban. Wouldn’t it ruin US’s reputation of sort of giving up their task and turning back to the terrorists for negotiation?

    These questions sort of wondered around my head, so I just thought I would put them out there if anyone would want to respond to my (naive) questions.

  13. Wemyss "Scooter" Scott says:

    A few of our readings from this week, those of Carr and Kennan, raised an interesting question regarding the relationship between morality and power, and as to what place morality should have in international politics. Carr maintains that there is no morality without authority, and that the strong states will do as they please, regardless of moral implications. In the other article, Kennan goes as far as to say that involving morality in legal affairs is dangerous, in that states acting on moral grounds, as opposed to interests, will lead to more destructive ends. In my own view, I find that I agree more with Carr than with Kenna, but only to a certain extent. For Carr, I do think he is right that the strong nations essentially control world politics. They have the greatest economic and military capability with which to “get their own way.” However, I do not believe that they completely disregard morality in their decisions. States undoubdtedly act more out of interest than of moral concern, but in my opinion, morality is not competey absent from the equation.

  14. Nes says:

    Response to Chime Dolma on Afghanistan/Terrorist Discussion

    I am also with Chime in that a “rational” negotiation approach is an appealing one, but I contend that it may not be practical. Yes, it is true that without some sort of discussion with these non-state actors, we may not know their true motives beyond what they give us (i.e. Al Qaeda messages through pre-recorded tapes). However, how far can we go into providing negotiations without losing the practical aspect of it? To cite an example that came up in class, Britain under Lord Chamberlain negotiated with the Third Reich between 1937-1939 in what is referred to as appeasement. Yet, German ambitions grew and the state’s policies became more violent and suppressive, ultimately leading to war. Appeasement was maintained for Britain at the expense of other states, and yet the outcome was the same. Of course that example dealt with state actors, but how can we be sure that non-state actors (so-called terrorist groups) will not continue their policies if we negotiated with them? What can we possibly negotiate with them? Moreover, how many people would be willing to see their government negotiate after an event like 9/11, or say, Pearl Harbor more than sixty years ago?

    This isn’t to say that I would endorse retribution on a state that harbors these non-state actors, but that I would argue there is only so little time to have any sort of formal negotiation, and even to an extent so little to be negotiated when the different parties have opposing or extreme objectives.

  15. Patrick says:

    Upon further consideration, my eagerness to play devil’s advocate overlooked important elements of states’ motivations. I maintain that the United States should refrain with any negotiations with the Taliban. My justification that we have reframed the war (with the international community as observers) as a moral struggle is congruent with Carr’s conception of law. The United States has made promises and, because it is in a position of power, has cited a quest for our own conception of legal reality. However, the effort to save face on the international stage is only one factor in the current conflict.
    Other motivations exist that are not as compatible with Carr’s argument. He asserts that law is changed to benefit the state in power. Increasingly, the interpretation of the law that justifies our occupation is NOT in our interests. The war is increasingly expensive in terms of dollars and men. The economy of the country has no obvious benefit to the United States. Instead our legal justification is now based on the seemingly universal morals espoused by men like Grotius. Much of Afghanistan remains a constant chaos, still largely dominated by warlords. 80% of the worlds heroin is produced in the occupied country. Negotiations with the Taliban must concede something. Any concessions will bring further, unacceptable unrest and civil rights abuses. It is simply untenable to believe continued presence is completely amoral.

  16. Diana Chiu says:

    Scooter’s post revisits the issue of morality and power–that Carr ultimately believes in dominant nations setting the terms of morality. For the international community, dominant nations often associates the security of its state as security for the greater community. As much of a realist as Carr is, I found Carr’s admission that “any sound political thought must be based on elements of both utopia and reality” (pg. 93) significant. In our argument about whether negotiations with Al Qaeda is appropriate, I believe Carr would not be a staunch opponent against negotiations. Carr remarks that “the human will will continue to seek an escape from the logical consequences of realism in the vision of an international order, which, as soon as it crystallises itself into concrete form, becomes tainted with self interest and hypocrisy, and must once more be attacked with the instruments of realism…Ultimately, the “constant interaction of irreconcilable forces is the stuff of politics” (pg. 94). Negotiations with Al-Qaeda will be determined not by rational or practical means, like Chime and Nes mentioned, but be determined by the sentiment of the denizens in the dominant country– as the wave of utopianism and realism reach a crest and trough.

  17. Brian Watroba says:

    @ Scooter

    I agree with you that states, although they may always act in their own self interest, don’t completely disregard morality in their decisions. However, in the case of Kennan, I don’t think he fully agrees with Carr’s thesis. Kennan only has a problem with morality when it is applied to state actions; I think he would agree that states and government officials consider moral issues when making decisions, but it is wrong for judges to hold entire state entities morally responsible in a court of law. Kennan sees law as something that can be applied to individuals, but not to entire countries. I think he would agree with Holmes’ idea that laws can be created to get the outcomes we want and to help control individuals, but Kennan would add that when this idea is abstracted to the more general notion of states, the concept is lost.

  18. Patrick says:

    http://en.wikipedia.org/wiki/Principality_of_Sealand

    Here is a bizarre and awesome example of how states seek to establish sovereignty. The Bates family occupied an abandoned gun platform in the north sea of the coast of england. MAjor HRH Prince Roy and his family have tried to establish a completely functional government in hope other states will recognize them as a sovereign state. They cite the visit of european diplomats as de facto recognition of sovereignty. They have granted themselves the power to formulate and engage in foreign policy. Indeed, there was military action that ended with the family returning with helicopters and retaking their “country.” It’s pretty wild stuff.

  19. Diane Lopez says:

    Class 7- Reaction
    In reading Chapter 7, the portion that struck me the most was the portion on the International Status on individuals. It mentions that the state doesn’t really have an obligation to accept aliens onto its territory, but if it does then it has to treat the alien accordingly and acknowledge that the alien has personal rights. Following this notion, my question then becomes would the fact that an individual, although he wasn’t accepted, makes it to the state illegally allow the state to ignore his personal rights until he becomes a citizen?

    The Quebec’s attempt to secede was also interesting to read. Their main argument was that the constitution does not strictly deny secession; and if it doesn’t deny it, then it really isn’t unconstitutional. This is basically following the loose constructionist view. They presented the case on the basis of “people seeking self-determination.” But what intrigued me the most was the issue of defining people because if you think about it, yes people can be defines as a state, but also as a part of state, part of a group. The problem is that if you define people a certain way, then you are inevitably creating a slippery slope problem, and which leads to the question: where do you the draw the line. In the end Quebec was denied its claim to secede because Quebec did not satisfy the conditions for external appeal: which were proving that you were a “people”, prove subjugation, and be denied self determination.

  20. Chime Dolma says:

    Response#6
    Last week’s discussion on the definition of sovereignty was one of the most interesting, relevant topics for me. As a Tibetan refugee who is definitely for pro-Independence for Tibet, which in other words means I am someone who believes Tibet should be a free sovereign nation that shouldn’t be governed by China. This being said, my view on Sovereignty could be bias on many levels and that is due to my experiences as a refugee. However, I do believe that every individual’s way of thinking is (somewhat) shaped by their own past experiences, thus I am going to share my view on Sovereignty regardless of its biasness.

    First of all, I have an immeasurable problem with this vague use of term sovereignty and the way it is accepted by the International organizations like UN and as well as other powerful nations who actually have the “might” to create such international institutions like UN. As we have discussed in class, despite the traditional definition of Sovereignty as dichotomous notion, there is degrees of sovereignty in practice, such as having complete independence like any powerful nation, or having partial sovereignty.

    The problem with the whole notion sovereignty is problematic in itself but also the the reasons for certain entities that want to be sovereign are also problematic and distinctive. one of the reasons for countries to seek sovereignty is because they want to be granted /conferred certain authority to take legal actions.(i. e Quebec) but then there are other entities that want to be sovereign to practice minimal freedom of speech, freedom of speech, and can’t coexist peacefully due to cultural differences, (i.e Tibet’s reason for seceding from China).

  21. James says:

    Switching gears a little bit…

    Something that frustrates me in reading the chapter on Jurisdiction and more recently the chapter on Dispute Settlements is the fragility of international institutions. I don’t know if I’m a cynic or a realist, but it seems to me that participation in international regimes will inevitably tend toward the ‘Prisoner’s Dilemma’ situation of choice. (Analogous to the prisoner’s dilemma is the issue of nuclear disarmament. All parties can agree that the world would be a better place without nuclear arsenals, but who will be the first to disarm?)

    The prisoner’s dilemma scenario has appeared in several of the case studies we’ve seen so far. Two of them in particular stand out. The first involves the issue of sovereign immunity. As I understand it, states are granted immunity from suits involving international disputes. But states may also enact Restrictive Immunity, which grants sovereign immunity only in the case of governmental matters, and not in commercial matters. This creates asymmetrical relationships between those states that observe full immunity and those states that observe restrictive immunity. Surely it would be better if all states recognized full immunity, but mutual distrust will cause states to enact restrictive immunity instead, avoiding asymmetrical relationships. This was Jack B. Tate’s advice to the Attorney General (Epps 173).

    A similar scenario arises in the case of Compulsory Jurisdiction, under which states may enter into an agreement to submit to the international court in disputes with other states that have similarly agreed to submit. The problem is that states may submit WITH reservation (e.g. the ad hoc reservation enacted by George Shulz which barred submission to the court in the case of disputes between, let’s be real, the very same state that he was worried about having disputes with…Nicaragua.) Surely it would be best if states submitted to compulsory jurisdiction without reservation, especially ad hoc reservation like Shulz’s, but mutual distrust will tend toward more and more reservation, resulting in weaker international agreements. (Another example of mutual distrust causing weaker international agreements is the Norwegian Loan Case.)

    So how can we escape the prisoner’s dilemma scenario, which causes weaker international law?
    Does anyone agree or disagree with my assessment?
    …Maybe providing strong enough incentives for cooperation can mitigate or eliminate the effect of mutual distrust on the international level…

  22. Brian Watroba says:

    On Tuesday we discussed the ICJ’s limited capacity to enforce its decisions, and how the states involved are individually responsible for upholding the ruling of the court. There is no army to enforce the court’s decisions or punishment for countries who don’t comply. The system is largely based on trust and goodwill among states.

    While it’s helpful to have an “unbiased” court to help sort out treaty disputes among countries, it seems as if this system only works for states that are already predictable and stable, like the United States and most all of Europe. The ICJ doesn’t work how Holmes would hope it would—by focusing on the “bad man” and enforceability in order to build order and to produce the outcomes most favorable to society. There will always be states who won’t buy into the legal order, such as North Korea, and these are the kinds of dangerous states that require the strictest treaty enforcement. In a sense, the ICJ only helps already civil and allied states straighten out arguments, and doesn’t have enforceability or power over any state that doesn’t volunteer to participate, and also the more dangerous and unpredictable states. It’s nice that the ICJ will help the U.S. and France sort out a treaty issue, but the chances of either of these states going to war or violating treaties that have a serious impact on the security of the international community is slim, whereas North Korea can violate nuclear non-proliferation treaties all day long and the ICJ can’t hold them responsible.

    However, I understand this is a difficult issue. The ICJ’s jurisdiction and enforceability is limited for many reasons—state sovereignty, etc.—but it’s somewhat disappointing that the court just helps developed states sort out treaty disagreements, but doesn’t have any influence on more dire subjects like the security problems created by North Korea’s treaty violations.

  23. Elianna Kan says:

    I’d like to comment on a passage from Kissinger’s article on Universal Jurisdiction that I hope to bring up in class tomorrow, but in case we don’t have time, I thought I’d post here as well. In articulating his case against the way in which the Pinochet trial was carried out, Kissinger brings up a valid point with regard to the importance of local governments trying their own criminals as a process of national healing. According to Kissinger, “perhaps the most important issue is the relationship of universal jurisdiction to national reconciliation procedures set up by new democratic governments to deal with their countries’ questionable pasts” (3). While I agree with the general sentiment of Kissinger’s statement, I worry that he, like the ICC, places too much faith and relies too heavily upon the integrity and effectiveness of local governments to try their own criminals. He assumes that a transparent rebuilding process necessarily occurs in countries that have been previously plagued by flagrant violations of human rights. While I agree that ideally, a nation should try its own criminals not only to ensure the informedness of all parties involved, but also so aid in a national reconciliation process, third parties should be able to step in when necessary.

    I end by providing a specific example: Argentina returned to a democratic regime in 1983, after the Dirty War which caused the state-sponsored disappearance of 30,000 people. Evidently, in an attempt to speed the national healing process along, and prevent unnecessary upheaval in an already volatile country, newly elected President Alfonsín passed two laws that effectively granted immunity to all of the military personnel responsible for the torture of thousands of innocents. Not until 2005, were these laws found unconstitutional, opening the doors to long awaited trials. When trials finally began in 2006, one of the first individuals to testify, Jorge Julio Lopez, disappeared hours before his crucial testimony. His body has yet to be recovered. Are these trials a crucial part of a necessary healing process for the Argentine nation? Absolutely. But how can outside observers ensure justice where justice is do (as cliché and idealistic as that statement sounds)? Simply put, though it may seem ridiculous for Pinochet to have been arrested in London, and tried in Spain for crimes committed in Chile, perhaps this public and legal acknowledgement by the international community still had some benefit for Chilean society?

  24. Derek Whelan says:

    To respond to Elianna’s post…

    I would second Elianna’s sentiment that Kissinger places too much faith in the integrity of local governments to try their own criminals. What I saw as the true error in his interpretation of the Pinochet case, however, was his complete lack of acknowledgment for the direct involvement of Spain in the crimes Pinochet committed in Chile. The crimes committed against Spaniards in Chile were minimal in comparison to his crimes committed against the general Chilean population and it is debatable whether they warrant an extradition that set a critically important judicial precedent in terms of universal jurisdiction. Kissinger, however, essentially treats Spain like a completely neutral third party throughout the article who intervened merely on a principle objection to the passiveness of the Chilean government in pursuing and trying Pinochet. Moreover, Spain’s intention in the extradition of Pinochet was not the establishment of a universal jurisdiction precedent in international law but merely the same “national healing” for Spain over Spanish citizens harmed by Pinochet (the same national healing Kissinger believes is so threatened by universal jurisdiction).

    I don’t mean to discredit the dangers Kissinger noted of the precedent set by the Pinochet case. I just think that he portrays the British extradition of Pinochet upon Spanish request too simply as a radical and unjustifiable act that is entirely responsible for opening a Pandora’s box and paving the way for the abuse of the universal jurisdiction principle. I think that Pinochet’s extradition was more complex and justifiable and merely served as a catalyst for states that were already eager to employ the universal jurisdiction principle to pursue national interests.

  25. James says:

    Regarding Kissinger:
    Kissinger thinks national governments should try their own criminals. This is one of his objections to the ICC and universal jurisdiction.
    But another point he makes is that sometimes it is more politically beneficial for the international community to pardon, rather than convict, criminals of past regimes. He notes the irony that Spain, until recently a dictatorial state under Franco, would try Pinochet for torture. Spain had committed similar crimes but after the fall of Franco they just swept it all under the rug. Kissinger credits the quick success of post-Franco Spanish democracy to that political whitewashing. But here is where I think Kissinger contradicts himself. On one hand he opposes the ICC and universal jurisdiction because it subjects individuals to the tyranny of judges and foreign states, often acting from political rather than judicial motivation. (In the case of Pinochet, he goes so far as to say that Pinochet was tried because it was politically in vogue to do so.) On the other hand he promotes ad hoc tribunals which take political considerations in mind (i.e. judges with an eye toward the future and stability of the state in question and the international community at large.)
    So the way I see it he condemns political considerations in judging international crimes–and at the same time he actually promotes it.

    am i wrong about this?

  26. Wemyss "Scooter" Scott says:

    While I do agree with the previous two posts regarding Kissinger’s excessive faith in unestablished governments to handle criminal cases, I also believe that he provides a very valid point when he discusses the potential problems that universal jurisdiction could pose. The point I found most interesting was his fear that this concept of universality could blast open the doors and allow for the consistent and frequent usage of universal claims. He feared that this level of jurisdiction could lead to states misusing their power and trying anyone they see fit. True, Kissinger was saying this in the interest of protecting American interests and ensuring that Americans (like maybe himself) would’nt be mistreated under the universal principle, however his argument still has some valid points. The concept of universal jurisdiction does provide a slippery slope when it comes to deciding who is guilty enough to be tried by a foreign, and potentially unrelated and uninvolved state. Some cases will be clearer than others, one can argue that the Pinochet case was relatively clear based on the documented evidence of his severe abuses, however, future cases will undoubtedly be far more blurred. While I do support universal jurisdiction, as I believe that it is the best way of ensuring international justice, I also am not willing to say that it is without flaws.

  27. Eleanor Johnstone says:

    I would like to say a few words about my problems with the Eichmann case. To begin with, I’ll be the first to say that yes, this man definitely deserved to be tried and convicted. My problem is the means of getting him on trail that the international community took and allowed. Abducting a criminal from one country and bringing him to the epicenter of antagonistic sentiments does NOT seem like a fair trial to me. Nor would taking him to New Zealand, of course–the opposite extreme is equally imbalanced. International law is very concerned with upholding dignity and appropriateness in difficult situations, but it seems to me that the actions taken concerning Eichmann were emotionally-motivated and somewhat unchecked. Scalia argues for consistency as a necessary part of establishing a successful legal system; I think that it’s failure in the Eichmann case exposes a severe weakness in the international law as it was at the time.
    The argument that Israel is the homeland of the Jewish people and therefore is a justifiable place for the Eichmann trial is also dubious. What if we were to say that an Englishman who offended a Ghanaian in Europe could be tried in Ghana? The Englishman hasn’t been instructed on Ghanaian law; the place of trial is likely to be heavily charged with antagonism; and the trajectory of the legal procedure would be inconsistent with the system with which the Englishman is most likely familiar. A fair trial depends on a fair space and jury. If a person is guilty, as Eichmann certainly was, then he will be found guilty in a fair trial as well as in an unbalanced one. But the fair trial upholds the standards, dignity, and respect of the international community. Again, I do not disagree with the accusations against Eichmann, but I am uncomfortable with the ways that the trial was handled and the loopholes that were created to justify it.

  28. Matt D'Auria says:

    I’d like to quickly address one particular argument put forth by Kissinger that our class has yet to consider. This argument concerns “the relationship of universal jurisdiction to national reconciliation procedures.” Kissinger affirms that, if all nations are given the authority to try those accused of violating jus cogens anywhere in the world, certain governments will inevitably be tempted to utilize such authority in order to make amends for their “questionable pasts.” Kissinger looks to the Pinochet case for support for his argument. In his eyes, Spain’s desire to try the former Chilean president is “incongruous” after Spanish officials themselves perpetrated crimes against humanity both during their nation’s civil war and under the authoritarian dictatorship of Francisco Franco. But I just wonder how valid Kissinger’s claim really is; does the desire to improve one’s reputation in the international system provide the most compelling reason for countries to pursue those guilty of the gravest crimes under international law? Would we say this is true of the United States? Would our country take on cases involving genocide, piracy, or torture committed abroad in order to make up for the internment of Japanese-Americans during World War II, or the torture of detainees at Guantanamo Bay? Somehow, I doubt that such national reconciliation is the goal of American-led prosecution of those accused of violating jus cogens. But I’m interested to hear a defense of the other side of this issue: does anyone support Kissinger’s argument concerning this particular point?

  29. Moriel Rothman says:

    @ Eleannor on Eichmann

    The Eichmann trial is clearly a case which I feel strongly about, and I make no attempt to deny that my response is likely, on a very visceral level, influenced by my own identity and thus biases. However, I would contend that the majority of political analyses, like the majority of court opinions, are profoundly influenced- as Kennedy asserted in opposition to Scalia’s advocacy for a gapless reading of the law- by politics, opinions, identities. That being said, I find it necessary to address some of the flaws in your argumentation.
    You pose the question: “What if we were to say that an Englishman who offended a Ghanaian in Europe could be tried in Ghana?” I realize that here you are using a metaphor to illustrate a point, but it is crucial to recall that Eichmann’s trial was not for an “offense.” Thus a more apt metaphor for your point would be “what if an Englishman raped, mutilated and then murdered a Ghanaian?” That said, let us assume that that was in essence the metaphor you were intending, as my argument is not with your characterization of Eichmann’s crimes, per se.
    The flaw of metaphorical choice aside, there are two other major issues at hand. The first is a greater, and more complex issue relating to the question of peoplehood- this question, as to whether or not the Jews constitute a people, is one that has been hotly debated and theorized upon for over a century, and I will leave that discussion for a different context: for now, suffice it say that an attempt to draw a one-to-one comparison between Jewish peoplehood and Ghanaian citizenship misses the nuanced issue raised in the Eichmann case itself, as Ghanaian citizenship is not based on peoplehood, per se, but rather by political affiliation, whereas the declared right in the Eichmann case of the Israeli court to try Eichmann was based on a concept of the Jewish People that transcended national citizenship (Israel did not exist as a state during the time of Eichmann’s crimes). I realize that this issue is perhaps too complicated to be addressed in a blog form, and would be happy to discuss this more in depth at any point, as there is a lot to unpack and debate in the very concept of Jewish peoplehood.
    The third and final issue arises in connection with the concept of Universal Jurisdiction: “The Englishman hasn’t been instructed on Ghanaian law… and the trajectory of the legal procedure would be inconsistent with the system with which the Englishman is most likely familiar.” The ruling of the Eichmann case has nothing to do with Israeli law, although you are right in contending that the decision was likely heavily influenced by emotion (as, I would contend, are all decisions): The ruling of the Eichmann case has to do with the idea that there are some crimes so heinous that it divergent national laws are of no consequence. As such, if, returning to the modified version of your metaphor, the Englishman who had tortured and murdered the Ghanaian did not know that torture and murder were illegal under Ghanaian law, that does not matter: he is not being tried by Ghanaian standards, but rather by universal standards. You state yourself that Eichmann was “certainly guilty,” and I feel that it is safe to assume that you are not referring to Israeli law specifically, but rather asserting that he is guilty of crimes against humanity and is implicated on the basis of universal jurisdiction. As such, if you agree with that fact, then your final contention, “the place of trial is likely to be heavily charged with antagonism,” indeed has little relevance- if Eichmann is indeed guilty of a universally designated crime, and court opinions are generally tainted with bias anyway, then it in truth does not matter if the judges, in their personal opinions are antagonistic (as, according to Kennedyist thought, every judge will either be antagonistic or sympathetic, especially in a case as charged as Eichmann’s), as long as the correct decision was reached.

  30. Elianna Kan says:

    (I wrote a longer post and it was deleted when I neglected to put my email..grumpily I summarize my previous post below):

    I’d like to tag along with Mori’s defense of Israel’s admittedly polemic actions with regard to the Eichmann trial. Though I find the argument that as the representative of the Jewish people, the Israeli government had every right to try Eichmann a persuasive one, I also wonder what would have been the alternative. The more I read about international law, the more I realize how much we assume that a legal system must be inherently “fair” and “just”. In actuality, I’m beginning to see that law, especially on the international scale, is another expression of political interests. Politics of power, economic interests, personal interests, etc. Thus, I would agree with Mori, that more often than not, arriving at the correct decision should oftentimes be what is most important. The fact of the matter is, war criminals often roam untried and free. Chile and Argentina’s dictators passed laws while in power granting themselves immunity. Thus, with all its blunders, I congratulate the Spanish court for finally putting a blatant war-criminal on trial when his own country was not able to. Finally, I’ll only add that according to a 2006 New York Times article, the CIA knew of Eichmann’s whereabouts as early as 1958 and chose not to do anything about. The United States’ inaction was as much a political move as Israel’s action; the only difference being that Israel’s choice let to the conviction of a man guilty of crimes against humanity. Though Israel’s political move was certainly self-serving in some respects, it also did a service to the global community in a way that the United States was unwilling to.

    I leave the link for the article below:
    http://www.nytimes.com/2006/06/07/world/americas/07nazi.html?ex=1307332800&en=a02750d1b542785e&ei=5088&partner=rssnyt&emc=rss

  31. Patrick says:

    I realize we’ve moved on in class but here’s a pretty interesting issue of jurisdiction. As the catholic sex scandal engulfs diocese after diocese there are increasing calls for the Pope to take some form of responsibility. These range from resignation to (as we see here) prosecution. There are many, it seems, that would like to prosecute Pope Benedict for the cover up of sexual abuses. Clearly, the Vatican will not try him and there are many in England who are increasingly ready to do so. They claim universal jurisdiction because the extent of the crimes is so grievous.
    There are two blurry questions of international law at stake. The first is whether the severity of the crimes warrants prosecution under universal jurisdiction. Such proceedings are usually reserved for clear, direct crimes against humanity (i.e. genocide.) The second is whether the Pope has immunity as head of state. The Vatican is a type of pseudo state with undefined rules. It is a permanent observer but not a member of the UN. President Bush intervened in an American case and said that he did indeed have immunity.
    It is clear that Britain has been willing to make bold cases in similar cases. I’m not so sure they’ll push it this far.

    http://dailycaller.com/2010/04/04/popes-immunity-could-be-challenged-in-britain/

  32. Eleanor Johnstone says:

    I really like Patrick’s comment above, and would like to say a few things in response. I have also been interested in this Catholic sex scandal case from the international legal perspective, primarily because the Catholic Church is both an enormous and influential entity yet, as Patrick points out, not a state as we commonly understand it. Here’s my issue. Even if the Catholic Church isn’t a territory-based political entity it is heavily influential in the mentality of nations around the world. Therefore, it is represented in the way that people define their states and act along the political spectrum. Furthermore, it has an incredibly high number of constituents, and could easily be called a state. When compared to a smaller state such as Tunisia or Macedonia, it is significantly larger in population and even has more sway on a global level. And yet, in our secular, politically-correct, highly bureaucratic world there is no straight-forward way to address the destructive operations of this body in any direct or constructive way. Is the international community kept at bay from this issue over the definitions of ‘state’ and ‘nation’? To what extent are these definitions outdated in our current, highly-globalized context? In a world of diaspora, rapid world wide communication, and great social and political inter-dependency, perhaps we need to reassess the ways in which our legal language is retarding the realization of our global goals.

  33. Nes says:

    Responding to both Patrick and Eleanor:

    I’m also really curious to see in which direction the situation with the Catholic Church will go. However, I’m cautious to say that the Pope, assuming that we remove our traditional interpretations of what states are, could be liable to be prosecuted under universal jurisdiction. Yes, the Catholic Church is a large entity, and yes it holds a good amount of sway in the global context. But it is a religious entity, and many of its adherents can only agree as far as religious matters go and nothing else. Moreover, how likely would it be that the Pope is liable for prosecution on the grounds of universal jurisdiction? Child sex abuse is an awful thing, and all the cases that continue to appear are appalling. But can the concept of u.j. be applied that far, when it generally deals with genocide, etc.? The fact that it is Britain too, long a heavily Protestant state, makes it that much more of a debatable issue. It seems that the issues at hand, while generally agreed to very bad, have heavy religious currents underlying it. And that religious current is what makes me hesitant to say that it should be dealt with in the law of a third party, or the universal system, and not within that religious body.

  34. Chime Dolma says:

    To be a bit more patriotic for Tibet; here is a good website where you can read about the water issue that Peter brought up in discussion today (April 6). This is and has been a real pivotal concern for the world especially to environmentalist. I think I don’t need to say much about the issue if you are interested, everything is very well presented in the website: http://www.circleofblue.org/waternews/2008/world/china-tibet-and-the-strategic-power-of-water/

  35. James Landenberger says:

    Our discussion in class last time was focused on issues of jus in bello, probably because this will be most useful in the mock trial. But less attention has been given to issues of jus ad bellum. I’m interested particularly in the issue of self-defense. We read in Epps about the “Case Concerning Military and Paramilitary Activities in and against Nicaragua” (393). This case raises some very tricky questions (401).
    At what point is a state justified to use its inherent right of self defense? Is it enough for troops to be lined up at your border? It was enough for Israeli forces in the Six-Day War, who ‘preemptively’ attacked Arab forces who had done just that…
    But the Arab nations later called this an illegal act of aggression…
    Do the aggressors have to be right at your doorstep training their guns on you? But at that point it may be too late to exercise your right of self-defense. When does the overall UN mission of peace and security trump the use of force against a possible aggressor, and when does it become legal to exercise your inherent right of self-defense. In other words, when does the inherent right of self-defense take precedence over the overarching mandate of the UN, which is to preserve peace and security?
    The Nicaragua case in particular raises the issue of third-party self-defense (or collective self-defense). What constitutes third-party self-defense? The United States were supplying weapons and training…they never actually sent troops to fight on El Salvador’s behalf against Nicaragua. Does this mean they were not actually engaged in third-party self-defense?
    Are the standards of proportionality and necessity the same for third-parties as they are for victim states?
    Does a victim state have to ask for help in order for a third-party to intervene on their behalf?
    I don’t have answers to these questions, but I think they are worth thinking about.

  36. Matt D'Auria says:

    I would like to briefly return to our conversation on Tuesday concerning the need (or lack thereof, depending upon which side of the debate you take) to adopt interventionist policy in order to alleviate human suffering abroad. I want to highlight one particular problem that most people who argue for increased foreign intervention seem to overlook. This problem concerns our nation’s general capacity to supply the troops necessary to effectively execute such military operations. At first glance, manpower doesn’t seem like a real problem for the U.S. But if we stop to consider the Army’s serious problem with suicide, the task of amassing a sufficient number of soldiers to carry out more interventionist wars suddenly becomes more difficult, and a lot more controversial. The following link is to a recent article in TIME magazine that explains the nature of the US Army’s “War on suicide.”
    http://www.time.com/time/nation/article/0,8599,1981284,00.html#ixzz0mG2uZ346
    The article claims that the suicide rate among members of our Army is shockingly high and is largely the result of “the burden of repeated tours of combat duty on a soldier’s battered psyche.” In essence, expecting our soldiers to serve repeated combat deployments has significantly increased the risk that they will commit suicide.
    Given that a significant number of our servicemen and women are taking their own lives after being forced to serve multiple tours of duty, can we really expect the military to shoulder the increased burden of more interventionist wars? Whosoever chooses to answer this question in the affirmative must also provide an argument on how to halt the army’s “suicide surge.” The TIME article suggests that the only way to achieve that goal would be to “reduce the number of deployments per soldier and extend what the Army calls “dwell time” — the duration spent at home between trips to war zones.” Of course “the only way to make that possible would be to expand the Army’s troop strength, or reduce the number of soldiers sent off to war.” Individuals who argue for increased intervention obviously cannot promote the latter option, as a push for fighting interventionist wars would probably require an increase in the number of soldiers stationed on the front lines. Thus, it seems to me that proponents of intervention would be left to advocate the idea of increasing the overall number of soldiers in the national army. Maybe they should be the first ones to grab their combat boots.

  37. Brian Watroba says:

    In response to Professor Morrison’s polemic (his idea that maybe sovereignty doesn’t apply anymore, that it was originally used in defense of countries trying to break away from the Holy Roman Empire, to allow for free religious practice):

    Because of the rise of non-state actors, and how with modern technology a small group of people can present large-scale security threats, maybe it’s reasonable to say the definition of sovereignty needs to be reformed. Fifty years ago, due to the constraint of technology and cost of military equipment, wars were only waged by entire countries and groups large enough to field armies and afford tanks. Military and security threats were easier to identify because they corresponded with entire states, not individuals. This legitimized individual state sovereignty because as long as they didn’t present a military threat to other states, countries could safely be left to their own individual rule. However, in the present day, a state can have peaceful foreign policy but at the same time possess a small interest group with political goals opposite to that state. A good example is ETA in the Basque region of Spain or the terrorist groups in western China. These small interest groups can use modern technology to cause large-scale murder or launch crippling cyber attacks on peaceful parties. This effectively challenges the old laws of sovereignty: the country that is the victim of terrorist attacks has the right to respond to and pursue these interest groups, but at the same time these groups may be residing in a country with peaceful foreign policy and no part in the conflict. This is where the old concept of sovereignty splits in two: what’s valued more, a state’s right to sovereignty and individual rule or the victim country’s right to seek justice?

    I think we could potentially reform the definition of sovereignty to allow for both of these rights. With enough time, I believe the prevention of terrorism could develop into a jus cogens, and be explicitly and clearly punishable under international law. In the same way that Gareth and Sahnoun claim sovereignty now constitutes the “responsibility to protect,” and requires states to first protect jus cogens human rights domestically, states could also have the “responsibility to protect” against terrorist groups and violent non-state actors domestically. This way, if non-state actors threaten or attack foreign countries, it would be the responsibility of their residing country to pursue and try these actors before foreign intervention is allowed. Like Gareth and Sahnoun’s argument, if their residing state fails to or is unwilling to pursue the terrorist forces, only then can foreign countries intervene. This could help to effectively separate the blame of violent non-state actors from their residing states, and preserve state sovereignty while at the same time combating terrorism.

    This is, however, contingent upon anti-terrorism developing into a jus cogens. I honestly think this is possible, and there is already proof of progress: the Shanghai Cooperation Act between China and Russia, and the UN Charter chapter 7.

  38. Patrick Johnson says:

    In preparing a defense for Hans Fritzsche I read the entirety of the transcripts of the direct and cross examinations. I also stumbled upon a quote of Fritzsche’s that condemns the Nuremberg Trials as “completely false.” this was surprising as Fritzsche was represented by excellent council that successfully proved his distance from the Nazi conspiracy. Fritzsche’s concern was that the trials did not begin to address their supposed function, the determination of guilt for the murder of 5 million Jews. Instead, the officials were selected somewhat arbitrarily. The inability to punish all those actually responsible cast the entire German people into a guilty shadow. It is important to remember that, while delivering justice to admittedly evil men, there was a distinct character of a show trial. Fritzsche no doubt contributed to the indefensible German expansion, but his demonstrated lack of knowledge of the exterminations makes him far less guilty than the thousands directly involved.
    In addition, the lack of knowledge of the holocaust continues to surprise me. Even within the well documented Nazi party it is difficult to prove who knew what, when.

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