83 thoughts on “Reading Questions”

1. Diane Lopez February 10, 2010 at 11:35 pm

   Diane Lopez
   International Law
   Discussion Questions

   How would you define the term “international law”?
   International law is a complex and ambiguous term that is quite difficult to define in one sentence. In defining the term, I will first mention the parties that participate in this notion of “international law” and then I will define the term. International Law (IL) includes all sovereign countries. Given the fact that they are sovereign, each country has its own governmental system, its own set of values, and its own “truths”. However, despite their difference, international law seeks to find a commonality among the different sovereign states.
   Is “international law” an oxymoron?
   I believe that the idea of “international law” is not an oxymoron, but the reality is that there really isn’t a law that can draw together all the sovereign nations because each sovereign state is going to have their own interests. I have a problem with the fact that there isn’t any regulation or anyone to ensure that the states are practicing international law. In reading Epps, we are introduced with this idea of customs. Though the notion of customs makes sense, the question that I have is how can you use past precedent to rule on the future. We cannot assume that laws from the past is applicable to the future because as time progresses states become more developed and therefore proves the change in society To utilize custom as the means to make a ruling in the future is invalid because a law made in the 1800’s for example may not take into account the global situation in 1900’s and therefore wouldn’t be accurate. For example: In the Supreme Court case The Paquete Habana, the customs that were applicable were the laws imposed in the past. For example: the case mentions Henry IV and his introduction of the “Concerning safety of fisherman”, the treaty of 1521, and Louis XIV with is granting fishermen liberty. So, these customs are used to show the patterns of behaviors and the laws that have been accepted, which is why the court found that the capturing of the boats was unlawful and without probable cause. But if one analyzes this further it is evident that the weapons utilized in the 1400’s in times of war and violence were less detrimental or catastrophic in comparison to the weapons used in the late 1800’s. Given the fact that the weapons have change, it only makes sense to enforce stricter laws during wartime.

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2. Moriel Rothman February 11, 2010 at 1:36 pm

   Moriel Rothman
   International Law
   Discussion Questions

   An important part of International law is the area of the law that is known as “customs.” Customs are not codified in a specific treaty, but rather are based on a plethora of international decisions and precedents. Customs are not binding to individual states (excluding the area of Jus Cogens, which is considered binding- but the very question of “binding” is complicated, as who specifically is expected to enforce the bind?); however, for international law to function in a robust and efficacious way, individual judges and judicial systems may determine that states ought to abide by certain customs.
   As stated in the case of Abdullahi v Pfizer (a decision in which customary law was invoked), in the discussion of the Sosa v Alvarez-Machain, “courts are obliged to examine whether… the norm is accepted in the world community,” Such as statement is clearly open to much interpretation- what world community? If seventy states dissent, is the the norm no longer accepted by the world community (indeed the Abdullahi v Pfizer decision does invoke a specific number: “at least eighty four countries, including the United States, require the informed consent…”)? What if those states are the U.S. plus Nauru, Kiribati, Seychelles, Guyana, Monaco and co.? Arrival at such a decision is fraught with complications, and the very concept of customary international law lends itself to insinuations of oxymoronicy, or at least of wishy-washyicy (“if there is not specific law to look for, then could not any court make the case in any case that they are acting on the basis of a “norm accepted by the world community,” as represented by states X, Y and Q?”). The decision follows: “The norms of customary law are discerned from myriad decisions… and do not stem from any single, definitive, readily-identifiable source.” In other words: Jurisprudence must flourish for customary law- a pivotal section of international law- to properly function.
   However, although customary law is complicated and controversial, it is crucial for the viability of international law. International law is shown indeed to play an important role in the world: “Governments make a very large number of legal agreements, and, on the whole, their compliance with these agreements is quite high.” So, despite all of its complications, customary law exists and is often abode by: the question then is “why?” Keohane details two optics as an answer to why international law, and implicitly, the customary function of international law, is heeded at all: the instrumentalist optic, and the normative optic. Interests and reputations are important in both optics, but the function and meaning of such is quite different in the two optics. However, Keohane asserts that the two, in fact, “work in tandem” within the context of institutions. So therein lies a partial answer? It is difficult for me to draw a definitive conclusion about why international law works from the assigned reading, but according to my norms, to my interests, as well as to my academic analysis, I will conclude that international law is far from an oxymoron.

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3. Stephanie Astaphan February 13, 2010 at 1:34 pm

   Class 3 – Reading Questions
   Thomas Hobbes – Leviathan

   As I understand Hobbes’ argument, the right of nature (jus naturale) is the right to life and to preserve one’s life by any means deemed necessary through one’s own judgment and reason, – a liberty. This gives rise to natural passions and the condition of man: a perpetual state of war defined by pride, revenge and partiality. However, the law of nature (lex naturalis) states that one cannot act in a way which is destructive to his own life, – an obligation. Therefore, as a rule of reason, every man should endeavor peace, justice and the like, so as to secure his own life. As such, a man is willing to sacrifice his right of nature, his liberty to do as he pleases, and be contented with as much liberty against other men as he would allow other men against himself so as to ensure for peace and the defense of himself.

   This introduction of restraint leads to the creation of Commonwealths as a foresight of their own preservation by instituting a visible power which ties men, for fear of punishment, to the observation of the laws of nature: peace, justice, morality.

   As to Hobbes’ take on the notion of “international law”:
   I’m not entirely certain, but I do not think that Hobbes would advocate for the establishment of international law in that the notion, by nature, calls for the amicable legal governance of relations between states and in doing so, would result in the exclusion of armed international disputes where the law is upheld, thereby also eliminating the threat of the “common enemy”… and according to Hobbes, where there is no common enemy, the Commonwealth falls again into war amongst themselves (since there is no longer any need to surrender one’s natural right to liberty over all others to a visible power capable of maintaining security against foreign neighbors). But I’m probably entirely off base.

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4. Derek Whelan February 14, 2010 at 6:15 pm

   Derek Whelan
   International Law
   Discussion Questions
   In addressing reading question four (What are the sources of international law?) Article 38 of the Statute of the International Court of Justice (the primary judicial organ of the United Nations) seems to provide the most concrete starting point for defining the sources of international law. The article recognizes four primary sources of international law
   a.) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states
   b.) international custom, as evidence of a general practice accepted as law
   c.) the general principles of law recognized by civilized nations
   d.) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
   This charter provides the guidelines for only one international judicial body, albeit arguably the most important one, but I think it provides a solid basis for the primary sources of international law. However what is equally important as the sources of international law is the relative influence and utility of each source.
   The cases covered in the first chapter seemed to indicate that previous judicial decisions and international treaties carry more weight than international customs and general principles of law. The Paquete Habana Case, for example, cited a treaty made in 1521 between Emperor Charles V and Francis I of France, an agreement between Louis XIV and the States General to Holland in 1675, and a treaty between the United States and Prussia in 1785. These treaties all pertain fairly specifically to the issue at hand in the Paquete Habana Case but, as Diane mentioned in her post, laws and treaties that date back this long cannot often be applied as easily to the same situation in modern times.
   In the Abdullahi v. Pfizer case, the ruling in Flores v. Southern Peru Copper Corp., the ruling in Khulumani v. Barclay National Bank, Ltd., the ruling in Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co. and Mora v. people of the State of New York all provided a strong case for the defendant because they were examples of cases that were “insufficiently universal to support a claim under the ATS.” These cases seemed to carry more weight than the strong argument that nonconsensual medical experimentation on humans is immoral according to international customs. The existence of such a custom is evident by the eight international institutions cited by the plaintiff that uphold this belief as well as the final ruling of the court which admitted the actions to be “deplorable.”
   I still think, however, that while justice in international courts often appears to be impeded by lack of a legal precedent, adhering to previous judicial decisions and international treaties should take priority over molding the concept of international customs to a specific case. The discretion of courts to selectively choose sources for their decisions sufficiently counteracts the phobia of creating new law.

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5. Nadia Schreiber February 14, 2010 at 9:08 pm

   My biggest problem with wrapping my head around international law, has to do with where the laws come from. All laws were once customs, and obviously one cannot think of a rule out of thin air. There has to be an obvious, pre-determined need for such a rule, or else no one would follow it. But the use of customs in creating laws also has the possibility of creating many more problems than it could fix.
   When you talk about making law for just one country, using customs makes a little bit more sense. The people of a nation are clearly united by some principles, and those principles must lead to certain ideals. But when talking on an international level, I think there is too much variation on customs and ideals for real laws to ever be enacted or work. The reason we have individual sovereign nations to begin with is due to the fact that there are not enough common threads to unite all the people of the world.
   I think looking at some of the African nations provides an excellent example of how international law will be hard to create. After the Berlin Conference, tribes were split, and nations created based on completely arbitrary lines. There are now civil wars within countries because there are not enough commonalities to bring all the peoples together.
   Having international regulations has become, and will become even more, necessary due to the increasing amount/rate of international interaction. Everything happens much faster, and much more easily than it ever has before, and for that reason, it needs to be regulated in some fashion. I just don’t believe that customs are necessarily the best way to go about creating international laws. I worry that creating laws based on customs will lead to certain countries seeing themselves as morally “right” and others “wrong”. If there are laws created off of these “rights” and “wrongs” than it will be impossible for all nations to feel united, and could in fact cause more problems than it resolves.

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6. Miles Abadilla February 14, 2010 at 9:43 pm

   What is “international law” and is it an oxymoron?
   My understanding of international law is that, in an ideal setting, international law would consist of a set of rules that states had to comply by and without such compliance, would therefore be subject to punishment. The problem would be determining a set of rules that complies with numerous states that are inherently different. Additionally, what would be the body that enforces these laws? There are far too many world views and regimes that run counter to what international law proposes; I am thinking, in particular, Western and Eastern worlds that have different customs. And there remains the problem of imposing one country’s thoughts upon another. This particular quote from the reading encompasses an important part that would be difficult to grasp about international law: “The requirement that a rule command the ‘general assent of civilized nations’ to become binding upon them all is a stringent one. Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law” (Epps 13).
   Enforceability of the sources of international law?
   The courts rule in Paquete Habana that established international law needed to be upheld but the court could have ruled otherwise and as such enforcement of such law depended on the court and not of the source, as in this case, the scholars and customs that proved to be helpful in winning the case.
   In the Filatarga case: if Paraguay and the U.S. had not outlawed torture, then they necessarily would not have had to follow the law of nations since it is based upon the usage of nations. Nation must have outlawed torture but Pena could have gone free had Paraguay permitted torture? I would say no because if he was on U.S. land, he has no diplomatic immunity. But then if he was deported back to Paraguay then he would have not done anything illegal and therefore would not be guilty of any such.

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7. Nes Martinez February 14, 2010 at 9:59 pm

   Nes Martinez
   International Law
   Reading Questions (Tues. Feb. 16th, 2010)

   – Hobbes suggests that an individual cannot renounce his or her right to life. If that is the case, how can the Leviathan perform its original task?
   – How and why do individuals create a commonwealth in Hobbes’ account?

   In Leviathan, Thomas Hobbes states that an individual cannot willfully renounce his or her right to life. An individual only gives up their right to some thing “in consideration of some right reciprocally transferred to himself.” Moreover, Hobbes argues that renunciation of a right is a voluntary act, and that any individual who gives up their right to life “is not to be understood as if he meant it” or was misled to doing so.

   How, then, does the Leviathan (that is, something or someone who has dominance over ‘subjects’) work if an individual cannot renounce his or her life and be ruled by said Leviathan? According to Hobbes’ second law of nature, an individual will lay down his or her right to all things in as far as the individual knows others do the same, thereby creating equality for the preservation of peace. And, according to Hobbes, individuals create [political] commonwealths when all agree to be represented by one person (or an assembly), “voluntarily, on confidence to be protected by him [or them] against all others.” The other, the commonwealth of acquisition, is created through war and dominance.

   Thus, the Leviathan can work because the individuals who agree to establish it are willfully giving up their rights in order to gain protection and peace. They are not renouncing their right to life without something to be gained. Moreover, they are not losing their life by selecting the Leviathan, but are hoping to be protected under it.

   Hobbes also states that, once created, deposing the Leviathan (sovereign) or the commonwealth would be injustice. However, suppose that the Leviathan was not acting in the interest, and maybe even against the interests and health, of those who established it. Would Hobbes still argue that (given his stance on no renunciation of right to life) deposing this sovereign be injustice?

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8. Anna Solovieva February 15, 2010 at 12:46 am

   Grotius begins by stating that man is an animal of a very high order, and one of the things that is unique to man is society. Because every being is guided by nature in seeking its own “private advantage”, society and the rules that guide it are therefore something intrinsically desirable to people. Grotius calls human sociability “the Fountain of Right”, because it is from here that we draw our notions about what is right or wrong; i.e., thou shall not covet thy neighbor’s ass. Apart from Right, man is also blessed with Judgment, which he applies to determine preferences, control passion and establish future plans.
   Apart from what she has given man, Nature has also taken it upon herself to distribute certain characteristics among mankind. An easy example of this can be comparing someone wealthy to someone poor. Your position in the world largely has to do with what Nature has given you. Grotius writes “the Mother of Natural Law is human Nature itself.”
   Grotius also attributes the sense of right as coming from God. Because Christianity has moral laws that are believed to have come from God, thus any society of Christians will agree on and follow these moral laws. Yet Grotius later says that because “all men are descended from the same first parents”, and Nature has made us all alike it would be a crime to act on prejudices against others.

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9. Anna Solovieva February 15, 2010 at 12:50 am

   Grotius begins by stating that man is an animal of a very high order, and one of the things that is unique to man is society. Because every being is guided by nature in seeking its own “private advantage”, society and the rules that guide it are therefore something intrinsically desirable to people. Grotius calls human sociability “the Fountain of Right”, because it is from here that we draw our notions about what is right or wrong; i.e., thou shall not covet thy neighbor’s ass. Apart from Right, man is also blessed with Judgment, which he applies to determine preferences, control passion and establish future plans.
   Apart from what she has given man, Nature has also taken it upon herself to distribute certain characteristics among mankind. An easy example of this can be seen by comparing someone wealthy to someone poor. Your position in the world largely has to do with what Nature has given you. Grotius writes “the Mother of Natural Law is human Nature itself.”
   Grotius also attributes the sense of right as coming from God. Because Christianity has moral laws that are believed to have come from God, thus any society of Christians will agree on and follow these moral laws. Yet Grotius later says that because “all men are descended from the same first parents”, and Nature has made us all alike it would be a crime to act on prejudices against others.

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10. Andrew Conner February 15, 2010 at 1:03 am

    Is “international law” an oxymoron?

    I would say that “international law” is less of an oxymoron than the notion of a “war crime”, but that’s a discussion for another time.

    To answer this question let us first step out of the international realm and examine law at a more local level. Why do the majority of people living in place “X” follow the law? If “X” is more democratic, then a likely reason is that they do so because they agree that society would be better if the laws were obeyed. Lawmakers are held accountable by the people via the electoral process, so there is little incentive to pass outrageous laws. For those people who lack a strong sense of civic virtue, there are always consequences. People tend not to drive on the shoulder when they’re running late and are stuck in traffic because the costs outweigh the benefits. If “X” is more on the totalitarian side, then consequences would likely play a larger role in the decision-making of the people. All of this is very basic. People act based on their self-interest, and legal consequences manipulate what they perceive to be their self-interest. Now let’s take this to the international realm.

    The fundamentals of international law are not very different than what I just outlined. States will follow the laws so long as they are operating in their self-interest. The threat of consequences guides the decisions made by the various states. Obviously there will be some states that choose not to follow the law because the reward seems to be worth the risk, so for the law to be effective it needs teeth. The U.N. can author as many resolutions as it wants calling for the end of “Y’s” nuclear weapons program, but without real consequences to the violation of the law the resolutions will produce few real results. The international arena is also very much like the local arena in that some entities are more equal than others. Wealthy people and groups that contribute to political campaigns have more influence on how laws are crafted and enforced than poorer people. The same applies for states as is most clearly demonstrated by the veto power given to the permanent members of the U.N. Security Council.

    In closing, “international law” is not an oxymoron because it operates much like any legal system. There are just greater challenges that those who wish to implement and enforce international laws run into. On the local level the costs of enforcing the law include but are not limited to maintaining a police force that can face increasing challenges and having enough jails to house criminals. On the international level the costs are much higher and can lead to war.

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11. Chime Dolma February 15, 2010 at 2:18 am

    In chapter 13 of Leviathan, Hobbes asserts that human are constantly at war for three reasons, which he explicitly describes as “competition, diffidence and glory.” He respectively further elaborates these terms as “invasion for gain, safety and for reputation.” Under such circumstances, human are compelled to come to an agreement, which states that for sake of self-preservation or for mankind’s safety and protection, the liberty (excess individual power) must be reduced. Hobbes believes human are by nature excessively free and equal. For example; he claims the existence of “the right of nature” had been abusing human race and also the liberty that an individual had used to preserve oneself had put mankind in a continuous fight. This excessive individual freedom had caused more destruction or had been threat to mankind; thus this was the ultimate reason for “law of nature” (natural law) to come to existence. In other words, in chapter 14 and 15, he discusses how law of nature forbids men from threatening others and this was established in response to fear. With fear and mankind’s self-interests induced “the law of nature.” Once law of nature is established, there is place covenant, which opens up the discussion for just and unjust action. According to Hobbes, Justice only exists when there is a creation of covenant (an agreement). In the case of state, if there is “commonwealth,” then there is place for justice and injustice, otherwise, such term don’t exist in human nature. There is only injustice if the common agreement (the multitude’s unity) is breached.

    Note: Questions about this specific article will be posted later.

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12. Moriel Rothman February 15, 2010 at 1:47 pm

    Class 3: The Concept of Right, The Chaotic State of Nature, Hobbes’ Proposed Antidote Based in Fear, and Grotius’ Differing Formulation of the Law of Nature

    According to the Athenians in the Melian dialogue, “right, as the world goes, is only a question between equals in power, while the strong do what they can and the weak do what they must.” This type of unadulterated realism does not sit well with the concept of international law. If the Athenians are correct in their supposition that might makes right, than the implications of such are that international law must be either a pretty name for a mechanism through which to impose the will of the most powerful and influential states, or it must be impracticable.
    The Athenians continue to state that “of gods we believe, and of men we know, that by a necessary law of their nature they rule wherever they can.” Such a conception of man’s nature parallels Hobbes’ conception of the “state of nature,” which for him is inherently a state of war, in which each man tires to pursue his right to have everything. Thus, according to Hobbes, only through commonwealths (what we know as republics) can this state of nature- this state of war- be tamed and mitigated.
    Hobbes, therein going one step further than the Athenians, is providing a remedy for the chaotic state of nature. How does is this commonwealth held together, in Hobbes conception? The answer is one which the Athenians, were they to address such a point, would surely find quite agreeable: Hobbes asserts that since the “force of words is too weak” to hold men to their covenants, there are only two ways to assure that covenants are kept: fear, and “a glory or pride in appearing to not need to break it.” However, he goes on to assert that the latter is “too rarely found to be presumed on,” and thus “the passion to be reckoned upon is fear.” Hobbes also highlights certain benevolent laws of nature, such as honor and pride, that could cause someone to act in self-sacrificce, but he asserts that these benevolent laws of nature are rendered meaningless without some degree of terror.
    Let us translate Hobbes’ individual onto the framework of the individual state, assuming Hobbes is correct in his formulation of covenants and commonwealths based on fear: It follows, then, that international law has no legitimate chance at success if it does not possess mechanisms through which to inspire fear in individual states (and as realist thought would continue, such mechanisms must be based in force, the tool of choice for states- although such a continuation is in and of itself a stretch, as realist thought does not view international law as a viable entity, and does not not see states as functioning in the same way as individuals).
    However, Grotius asserts otherwise. Grotius concurs with Hobbes that there are benevolent laws of nature; however for Grotius these benevolent laws of nature are the dominant laws of nature. Grotius claims that there is in nature an inherent right and from this natural right stemmed civil laws and the codes by which men abide, and that even if justice is aligned with power in a given context, “Justice is approved of, Injustice condemned by the Consent of all good Men,” thereby contradicting both the Athenians’ formulation of “might makes right” and Hobbes’ formulation of the state of nature as state of war. As such, Grotius continues on to proclaim that the saying that “Twas Fear of Wrong that made us make our Laws” is not universally true.
    Grotius asserts that there is indeed “some Right common to all nations.” It is thus a Grotian conceptual framework that allows for a uncynical- and even a cautiously optimistic- perspective on international law, for only with a Right common to all nations can there be any international law which encompasses justice. The question that then arises is how this Right is specifically located- through poetry, through theory, through religious texts or through some other way altogether?

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13. Chime Dolma February 16, 2010 at 10:17 am

    As Moriel Rothman has already pointed out, Grotius argument forms a optimistic foundation for International Law. In the beginning of the article, he asserts, “Nothing is hitherto studied as universe true,t he Civil Law, ….few have touched upon, and none hitherto treated of universally and methodically; tho’ it is the Interest of Mankind that it should be done.” My first glance at this passage made me think of the question that we discussed on the first day of class; “Is international law oxymoron?” Moreover, as reading goes further on discussing the universal right (common right), the optimistic view that Grotius holds of natural law is more convincing.
    This reading implicitly points out that such laws (natural/universal law) which I thought of International Law, is a “natural desirable” element for humankind.
    However, the question that remain unanswered is whether these natural laws/ rights are still the same today? Don’t the common interests/good/right of the people/state evolve as the circumstances change?

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14. Andrew Conner February 16, 2010 at 8:07 pm

    Today in class we had a great discussion on whether might is right and the Melians’ idea that there was an external source of justice. They largely based this justice on the gods, but we in the more secular society that we live in today look to the law for justice. Under the law, there is no such thing as “might is right” because the law is above both the strong and the weak…and so we are led to believe. But how are laws made? The answer is politics. In his book “A Constructed Peace: The Making of the European Settlement, 1945-1963” Marc Trachtenberg writes, in reference to western nations’ rhetoric concerning the rights of small nations, that “international politics was the politics of power. Everyone understood that regardless of what was said in public the three great powers would run the show” (19). In this case the great powers (US, USSR, and GB) literally had their armies on the ground in Europe, and they controlled several of the major choke points of global trade (Panama Canal, Suez Canal, and the Turkish Straits). Stalin was looking to keep control of the Straits, and he believed it to be the right of the Soviet Union since it was one of the great powers.

    Once laws are made they may apply equally to everyone (although that is usually far from the case), but the political process is very much a power struggle where might ultimately becomes right. One of the many reasons why the Soviet Union expanded its sphere of influence in regions dominated by developing nations was because these nations could vote for initiatives presented by the USSR in forums such as the United Nations. The same was the case for the United States. With foreign aid comes the expecation that the nation receiving the aid will support the initiatives of the nation giving it. Economic might gives a nation the ability to buy the support of other nations, and these proposals that they present the world forums become international law.

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15. Diane Lopez February 18, 2010 at 9:36 am

    Diane Lopez
    PSCI 236
    Response Paper- Week 2

    Justice Scalia in his The Rule of Law as a Law of Rules reaffirms the role of a judge and the judicial system. Two interesting points that he makes are: 1) that the idea of approaching a case in a “case by case manner” cannot possibly be valid because it does not satisfy one of the most important values, which is the value of equality. In two cases that are similar but not identical, you cannot rule one way for one and another way for another merely because there are various factors that differ the two. In fact Scalia goes so far in saying that it is not just to treat each case as a new case. He suggests that old rulings should be looked at to explain the decision. 2) Scalia’s following point addresses this idea of the “totality of the circumstances”. He argues that when a judge calls for the “totality of the circumstances” he is no longer applying the law; he is rather becoming a “factfinder. Scalia indicates that being a “factfinder” is not the job of the judge; the job of the judge is to be an expositor; his role is to explain the law.
    Knowing that Justice Scalia is a strict constructionist, the arguments above are both evident and clear. However, they do not rest well with me. I believe that given the fact that society is constantly changing, the constitution should be read as living document. Changes in society indicate changes in morality, and it is morality that makes law. Law is the codification of morality, which means that law is subject to change. It is not possible for you to apply the law of the 1900’s to a society that has progressed and has changed its moral values. A simple example can be seen through the issue of gay marriage. Fifty years ago gay marriage was undoubtedly seen as wrong and unacceptable. Now, because of the changes in our value system, the subject has become controversial. This is a mere example of how societal changes can affect the law.
    As far as his latter point regarding the “totality of the circumstances”, I do not agree with it either. It is necessary for judges to become “factfinders” in order to ensure that the law applies. You cannot apply a law without being well aware of the facts.

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16. Stephanie Astaphan February 20, 2010 at 2:57 pm

    Stephanie Astaphan
    Class 5 – Reading Questions
    George Kennan “American Diplomacy”
    Should the US rely more on international law or diplomacy?

    According to Kennan, the US should rely on diplomacy.
    Kennan argues that the most serious fault in American foreign policy formation is its reliance on a legalistic–moralist approach to international problems; a belief that it is possible to suppress the chaotic and dangerous aspirations of governments in the international field by the acceptance of some system of legal rules and restraints. Instead of dealing with the conflicts of national interests based on their specific merits and with the view of finding a solution least unsettling to international life, America attempts to find some formal criteria of a juridical nature by which the permissible behavior of states can be defined.

    Kennan’s basis for discounting reliance on international law is multifaceted:
    1) international law hinges on the subordination of every state to an international juridical regime which would limit possibilities for aggression, an idea which assumes that all states are reasonably content with their international boarders and status
    2) international law presents nationality and national sovereignty as as an absolute value by making it the exclusive form of participation in international life
    a.his assumes the ability to identify one government and one legitimate source of power within a state
    b. This ignores the control of small states by dominant powers with the appearance of maintaining national identity and sovereignty
    3) international law calls for sanctions against offenders of the general rule but ignores the limitations of the effectiveness of military coalition

    Kennan does well to present the theoretical deficiencies that are, in his opinion, inherent in the legalistic approach to international affairs, even linking international law and its preservation to the concept of total war and total victory, but does little to explain why the US should rely on diplomacy and the factors that distinguish diplomacy from international law as a more appropriate influence in the formation of foreign policy.

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17. Anna Solovieva February 21, 2010 at 2:39 pm

    Class 5- Did George Kennan think the US should rely more on international law or on diplomacy? On what basis did he make these suggestions? What are his argument’s greatest strengths and weaknesses?

    Kennan believed that America should base its foreign policy more on diplomacy. He begins the chapter “Diplomacy in the Modern World” with a surprising idea, saying that the United States entered the post-war period using the concepts and methods of a small neutral nation. This humbling statement sets the stage for Kennan to begin structuring America’s foreign policy program to be more reliant on diplomacy rather than international law.
    Kennan criticizes the machinery of the U.S. government, stating that short term public opinion of foreign policy is often erratic, emotional and subjective. Because of the nature of the organization of the U.S. government, the public opinion often serves to guide international policy. Kennan sees this as problematic and suggests a more careful employment of the principle of professionalism to guide U.S. foreign policy. In general, he criticizes U.S. foreign policy for lacking privacy, deliberateness and a long-term approach. He suggests a re-structuring of the machinery of government in order to improve the method. Kennan believes that it is possible to suppress the chaotic and potentially dangerous aspirations of governments in the international field through the acceptance of a system of legal rules and restraints. In other words, he calls for “a formal criteria of a juridical nature by which the permissible behavior of states could be defined” (96) but he does not believe that individual states should give up diplomatic pursuits of their own interests as a result.
    Kennan goes on to discuss the potential of having a world of equal and sovereign states content with their borders and international statuses. He later admits that because of the law of change, this stiff version of a utopian fantasy would not be fruitful. He writes that using the tenets of international law, a “legal strait jacket” (98) could be imposed on the system to ease it in its fluctuations. Immediately he finds fault with this possibility as it assumes that national domestic problems would remain at that level and not escalade into international conflicts and the formation of coalitions.
    I think Kennan does a good job presenting an objective, analytical and a well-supported argument for the use of diplomacy incorporated within a system of international law, and finding a “weak” argument is not easy. Although he does bring up examples from around the world (well, ok mostly Europe) I think his perspective is still too narrowly American to really be a good measure of how international affairs should be conducted. Also, the final paragraph of this chapter is full of sentimental and hopeful ideas that have little basis in reality. He says that the application of international law among an international community will require the emergence of a new neutral attitude among people, namely that of a doctor toward a phenomena in the human body: detached, sober and non-judgmental. This type of approach is impossible. Regardless of nationality, people are people and cannot always be expected to remain cool-headed and logical, especially in terms of questions of national sovereignty and other points related to international law.

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18. Miles Abadilla February 21, 2010 at 4:08 pm

    Response 2
    I particularly found the Melian dialogue and interesting and its discussion about morality and power. Athens claims supremacy and, knowing that Melos’ only reliance to victory is Sparta realize that morals hold no sway in the Melian hopes of eventually winning out. The Melians “Fortune in War” was a lost ‘cause since, as shown, the Spartans never came to Melian aid. Despite having all “Righteousness for a cause,” the Melians lost out and suffered terrible loses. Even though we read Grotius, an important scholar in international law, I would still side with the realpolitik side of how nations interact with one another. Grotius, following the sentiments proposed by the Melians, morality will eventually rule out over self-interest. Relating to real world events that have occuredi n the past two decades, world powers have shown that their self-interest rules out over the need to help certain countries—mainly in reference to outbreaks of genocide or instances where the right of certain countries was disregarded in lieu of the bigger powers’ intersets. The response to the 1994 Rwandan genocide was a small, arguably ineffective U.N. task force. Even the 2004 events between Russia and Georgia were left for Russia, the stronger of the two, to decide the outcomes. Power and morality play a big role and Thucydides accounts of the Peloponnesian War are a useful tool when used in reflection to modern times.

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19. Derek Whelan February 21, 2010 at 7:04 pm

    Class 5
    1. What did Carr think was the appropriate relationship between morality and foreign policy?

    Carr applies realist philosophy to the issue of morality and foreign policy to make the argument that “politics are not (as the utopians pretend) a function of ethics, but ethics of politics”. Much of his essay is dedicated to critiquing the utopian philosophy of foreign policy that natural, universal principles should govern foreign policy. From a historical perspective, he points out that such ethical principles were utilized by the “victors” of history to justify actions that would have been condemned had they not succeeded. As Carr says, “Nothing Succeeds like success” and “World history is the world court.” He argues that ethical notions are not a cause of foreign policy but an effect that is used as a means of claiming universal legislative authority for political action. Morality is often used simply “to cloak the interests of a country in the language of universal justice.” Morally discrediting the enemy while morally justifying one’s own actions, according to Carr, has always been a common practice in foreign policy. One common example of such activity is to classify one’s own armaments as “defensive” and “beneficent” while classifying enemy armaments as “offensive” and “dangerous.”
    Carr points out that politicians take great measures to guise national interest as universal good. American and British politicians, in particular, seem to have a particular mindset that identifies American and British interests with the interests of mankind. The result of such thinking is that “theories of social morality are always the product of a dominant group which identifies itself with the community as a whole, and which possess facilities denied to subordinate groups or individuals for imposing its view of life on the community.” Dominant nations thus come to dictate international notions of morality. This system is reinforced by the fact that the collapse of these dominant nations has negative implications for less powerful nations. The moral goal of “international peace” is the most obvious example of an ethical standard that caters to the interests of dominant powers. No nations hope for the disruption of peace when it is not completely necessary, but dominant powers have a lot more at stake when dealing with international instability because this instability threatens a status quo that is significantly in their favor. This relationship of morality and power politics exists in domestic politics on a smaller scale. The governing body always pushes the moral notion of “national solidarity”, but this solidarity is in many ways just a means of increasing control over the nation as a whole. Dominant international powers similarly work towards the ethical goal of “international solidarity” as a means of creating a unified world that can be more easily controlled. Absolute and universal principles of morality, according to Carr, are actually “unconscious reflexions of national policy based on a particular interpretation of national interest at a particular time.”

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20. Chime Dolma February 21, 2010 at 10:31 pm

    Power Manufactures Morality

    Edward H. Carr’s one of the focal point is what Machiavelli addressed in his book. Machiavelli argued that morality is the product of effective authority or power. This idea of seems to be the repeated theme that Carr attempts to argue. He makes reference a number of other realists who discuss about relation of morality and policy. But Carr further substantiates and expands Machiavelli’s argument by claiming social moralities are product of dominant groups’ policies/power. In other words, agrees with Machiavelli as he asserts “It is created by the overwhelming power of the privileged group, and is an excellent illustration of the Machiavellian maxim that morality is the product of power,” 80. Carr explains how the dominant groups or nations create morality in international relations by using the example of British’s free trade in nineteen-century. This example explicitly demonstrates that Britain held the power of economic morality because it was the dominant power and was capable of producing “prosperity for the whole world; Carr asserts, “British nineteenth-century statement, having discovered that free trade promoted British prosperity, were sincerely convinced that, in doing so, it also promoted the prosperity of the word as whole…….Economically, Great Britain nineteenth century was dominant enough to make a bold bid to impose the world on her own conception o f international economic morality,”81-82. This provided example also supports this notion of power produce morality because without a dominant power and policies, the state is subject to the state with power. In this case, Britain wouldn’t have had the privilege to impose their concept of economic morality if they didn’t have the strategic policies that made them the dominant.

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21. Nes Martinez February 21, 2010 at 10:52 pm

    Class 5 – #3 What does Morgenthau mean by “positivism” and “functionalism”? What is the relationship between the two?

    In his article, Morgenthau defines “positivism” as a philosophy that deals only with “matters than can be verified by observation.” (261) Thus, no attention is placed on any sort of external forces that cannot be verified (i.e. overarching natural laws or God), what he labels “metaphysical”. In terms of the legal system, “juridic positivism” would thus deal only with legal matters (not ethics or morals) and only with rules that can be tracked to some written form, as in a treaty or court decisions.
    “Functionalism” attempts to address legal matters and law not only with what is established, but also with norms and customs that have affected its establishment. Thus, unlike positivism, functionalism does not shy away from any laws or precedent that is not established in a book or a court decision (i.e. a norm that has become an unwritten law). Morgenthau then goes on to state that, in the realm of international law, functionalism is much more appropriate than positivism because not all laws in int’l law are written, and not all written laws (of a municipal level for example) are used in int’l law. Thus, juridic positivism is a “formula… at once too narrow and too broad.” (265). The relationship between the two, according to Morgenthau, is that positivism will help understand the problems of the science of international law, by understanding international law as both as a “function of the civilization in which it originates” and as “social mechanism.” (274) That is to say, without positivism as predecessor, functionalism would not now be able to address the issues of international law.

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22. Andrew Conner February 22, 2010 at 10:21 am

    4) Holmes suggests “As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics.” Given your interest in international law, doesn’t this suggestion make you want to take International Political Economy? (I’ll be offering it again next fall!)

    Of course…

    I would like to respond to this quote though. Obviously lawyers should seek an understanding of economics because lawyers often become lawmakers. In fact, everyone should seek an understanding of economics because it is very useful in life. That being said, Holmes’ aim is that lawyers weigh “the considerations social advantage.” This idea, while positive in its aim, has led to many negative consequences. We currently have a system where amateur economists with legal degrees craft our laws. They see a “social injustice” and respond in a manner which they intend will benefit the “public”. They have failed to see the negative effects that minimum wage laws have had on minorities for example, and instead of correcting past mistakes they charge on ahead with new laws that are designed to further improve the lives of their constituents. Not to beat a dead horse, but “the road to hell is paved with good intentions.” Such a legal system that Holmes advocates that is restrained by one’s conception of social advantage rather than the law of the land would lead to an unpredictable legal environment where trends in economic thought and political ideologies would be the dominating factor in legal discourse rather than the seemingly archaic notion of constitutionality. As Scalia points out, legal decisions that serve as an umbrella for the future cases restrain him when he might have a certain political leaning. A system where the primary restraint on those who craft and uphold the law is themselves and their perception of social advantage is not a system of justice. It is Russian roulette.

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23. Brian Watroba February 22, 2010 at 8:27 pm

    Class 5 – Response to Kennan

    Anna and Stephanie have answered question four really well already, so I thought I’d compare Kennan and Carr.
    One of Kennan’s criticisms of international law is that it “ignores the laws of change,” effectively imposing a “legal strait jacket” and prohibiting the natural flux of regimes and borders. But it’s interesting that what Kennan sees as a flaw or disadvantage, Carr identifies as useful. Carr states “pleas for international solidarity and world union come from those dominant nations which may hope to exercise control over a unified world,” and that international law can be used as a disguised political tool, working to preserve the status quo for those already in power. Carr presents the example of a British Labour ex-Minister who advocated the suppression of Article 16 of the Covenant of the League of Nations on the unexpected ground that the totalitarian states might someday capture the league, and eventually use it to achieve personal political goals. Carr suggests that keeping less powerful nations in a “strait jacket” is exactly what a dominant nation would strive for.

    To use Carr’s terms, I believe he is offering a “realistic” view of international law—instead of describing what it ought to do, he merely expresses what it does. Drawing from the school of “realism,” Carr suggests that powerful nations are always going to act in their own interests, and because it is created and regulated by the dominant nations, international law can be a tool for those nations to protect their individual interests and defend the status quo.

    Continuing to use Carr’s terms, Kennan’s argument seems to be very “utopian”. He describes an ideal of world diplomacy of “taking the awkward conflicts of national interest and dealing with them on their own merits with a view to finding the solutions least unsettling to the stability of international life,” and proceeds to explain why the current system of international law fails to meet these criteria.

    In my opinion, both authors’ positions are well defended. Kennan’s point that international law is an attempt to “transpose the Anglo-Saxon concept of individual law into the international field and make it applicable to governments as it is applicable at home to individuals” is a good one. Just because a judicial system works for trying individuals and firms, doesn’t mean that it will also work for larger and more complex things like governments or nations. Carr’s point that nations will always act in their own interest—and because there is always a dominant power, it’s difficult (or impossible) to keep law and international organizations operating fairly and objectively, is also strong. Instead of arguing against each other, both authors approach international law from different ideological perspectives, and in turn present two different arguments, but without encroaching on one another.

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24. Moriel Rothman February 22, 2010 at 10:19 pm

    Class 5: Carr and Kennan- The fallacy of moralism as a guide to foreign policy

    Carr writes in his “realist critique” a scathing indictment of Grotiusism and what Carr labels “utopianism,” asserting in essence that the relationship between morality and foreign policy is nonexistent, save for the manufactured morality that is created by those in power in an effort to legitimize their victories and retroactively paint their actions as good. History, Carr asserts, “creates rights, and therefore right.” Only a victorious state can declare that their actions in a war were right; it follows from such a conception that had the Nazis won WWII, their actions would have been as just (this contrasts to the Melian concept that Right will eventually prevail; in Carr’s mind, Right prevails only because whatever prevails is later viewed as Right).
    Carr’s indictment goes further, and although he does not spell it out directly, he implicitly asserts that in cases of foreign policy it is wrong for a state to claim Right, as “Ethical notions [as Mr. Bertrand Russel has remarked] are almost always… a means of claiming universal legislative authority for our own preferences.” Carr continues to rail against international law, arguing that the relativity of thought “must be used to demolish the utopian concept of a fixed and absolute standard by which policies and actions can be judged.” According to Carr international law based in “international morality” must be shewn for what it truly is: a deformed system, formed on the basis of Anglophone dominance and hypocrisy.
    George Kennan, although he is less frantic than Carr in his effort to prove the nonexistence of Right and the practical disconnect between morality and foreign policy, comes to a similar conclusion as does Carr, at least as related specifically to American foreign policy: namely that the “legalistic-moralistic” framework is the wrong way to go about it, and that American crusadism in fact facilitates more problems and quagmires than anything else (as in the impossibility of total victory necessitated by moralism). Instead, Kennan asserts, we must act abroad based on our interests, and as long as we avoid “delusions of superiority,” our actions based on our interests will ultimately be good, due to the nature of our country’s foundation (this part differs from Carr’s formulation, who criticizes utopians for asserting “whatever best for [their] country is best for the world,” which Kennan implicitly asserts here). Furthermore, like Carr, Kennan is highly skeptical of international law, and thus argues that since there is no power ruling over the international system, the best and mostly feasible alternative for American policymakers is increased diplomacy and a national step away from international law as well as from claiming moral high grounds.

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25. Diane Lopez February 23, 2010 at 2:13 am

    Diane Lopez
    PSCI 236
    Response Paper #3

    After having read Kennan, it appears that he advocates for diplomacy. In formulating his argument, he begins by finding faults in the legalistic-moralistic approach. He basically argues that the legalistic-moralistic approach views international affairs through a black or white lens, disregarding the fact that grey areas exist. What does this mean? The above theory approaches international law in the same manner that it handles domestic issues. Domestic issues are handled with the law. The “act” in question is either constitutional or unconstitutional; right or wrong; black or white. Though this system has proven effective for domestic purposes, its success in the homeland does not guarantee its success in the international world. When dealing with international law, it is important to understand that issues become more complex and less monitored. As mentioned on the first day of class, there really isn’t anyone to ensure that the international laws are being enforced and not being violated. So you can’t utilize a “black or white” approach on something as complex as international law. Kennan furthers his argument by saying that the legalistic-moralistic approach is very limited. In what sense? It is limited in the sense that it disregards the issues and the violence occurring within countries. He references the puppet states that were forced to submit to the power of a neighboring country, evidenced through Eastern Europe. Those internal issues can only be addressed through diplomacy. But, in following Kennan’s point, is it safe to say that diplomacy cannot coexist with law, which then means that with law these internal conflicts cannot be facilitated? By having law, you are essentially placing a “strait jacket” on the country, and telling them “this is the way you are supposed to act.” We are preventing them from acting on their desire to change something; we are assuming that everyone is content, as Kennan puts it. To sum it all up, our job is not to play the parent, and lay out a set of rules. Our job is instead to be the advisor and help mitigate and facilitate situations without having to feel constrained by a set of laws.

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26. Jelena February 23, 2010 at 8:24 am

    “Might is right” – ???
    Edward Carr “The Twenty Years’ Crisis, 1919-1939: An Introduction to the Study of International Relations.”
    Edward Carr is sharing a Machiavellian notion that ‘Morality is the product of power’. Using works of different philosophers and writers, he stresses notions, that our opinions can not be objective and are always circumstanced; and that our ethics is not the cause, but the effect with which we are justifying our own preferences. Thus many statesmen and simple people believe what is best for them is also best for others. Therefore, it is always a self-interest that dictates the morality, and as Carr points out, it is usually the self-interest of the dominant group that is being changed into the prevailing morality that should be adapted by and beneficial for others. Carr stresses out that the identification of self-interest with morality always happens during wars. New moral stance is needed to justify state’s actions.
    I found especially interesting Carr’s perspective on peace, which, he argues, is guaranteeing predominance of a group in power: “Just as the ruling class in a community prays for domestic peace, which guarantees its own security and predominance, and denounces class-war, which might threaten them, so international peace becomes a special vested interest of predominant Powers.” Applying this perspective in analyzing some Power’s interventions in or influences on some conflicts, one can conclude that they are happening out of self-interest in preserving an already existing balance/ status quo, unless gaining a new one is not going to be even more beneficial for Powers. So, after identifying this as a goal, morality must be found to justify Power’s preferences. Carr is brutally open and direct about power dictating morality; in this perspective we might view international law as another means for Powers to preserve their self-interests while appealing to morality of law.

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27. Miles Abadilla February 25, 2010 at 9:08 pm

    Week 3 Response
    Carr takes a cynical view of the relationship between morality and foreign policy. Morality does not really exist and it is just a banner used by world powers to draw in those unequal to them under their sphere of influence. Based upon this premise, that internationalism is a tool used by hegemonic groups, international law would then be a device that reels in those that do not follow the rules set forth by the world powers. This goes back to Athenian readings from the Melian dialogue of Might overcoming Right; those in power have the final say. Carr’s argument goes along the lines of Kennan’s who states that we should rely more on diplomacy because international law has far too many weaknesses since it imposes a certain set of rules towards nations that are usually not equal in terms of beliefs or resources to every other state; IL ignores the idea of change and that nations are constantly changing. I would disagree with the arguments of these writers. Although it is true that in certain instances, world powers have a final say but I would side with Goldstein/Martin’s argument that it is based upon the domestic constituency that controls the policies of their governments because politicians must respond to their polity.

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28. Stephanie Astaphan February 28, 2010 at 7:35 pm

    Stephanie Astaphan
    Class 7 – Reading Questions
    Morrison and White “international Regimes and War”

    What is the nature of the distinction between domestic and international politics?
    According to the Classical Perspective, domestic politics is defined by hierarchy and represents the realm of authority – law, whereas international politics is defined by anarchy and represents the realm of power, struggle – war. Recently however, increasing institutionalization of the international system calls this distinction into question. According to Morrison and White, the difference between international and domestic order is one of degree rather than type.

    Implications of this new distinction?
    Recognizing that the difference between international and domestic politics is of degree rather than type affects the ways in which we approach the international system. It forces designers of our international regimes to evaluate the amount of hierarchy that should be established in the international system. Essentially, invigorating international regimes (‘a set of implicit or explicit principles, norms, rules and decision making procedures around which actors’ expectations converge in a given area of international relations’) may reduce the amount of anarchy in the international system and with it, the amount of war since anarchy necessitates violent dispute resolution.

    Meaning for our understanding of international law…
    As such, international law can be conceived through the application of domestic theories of order to the international sphere. That is, theories of domestic order offer an applicable framework which expands the depth of our understanding of international order.

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29. Anna Solovieva February 28, 2010 at 11:00 pm

    2.According to Epps what determines the rights and privileges assigned to non-state actors? In what ways has the legal personality of these actors changed? In what ways should we expect them to change in the future?

    Before answering this question it is necessary to identify what is meant by a non-state actor. This can be an international organization (inter-governmental or non-governmental), a non-state group or a multi-national corporation. For the purpose of this blog I will focus on an example of the inter-governmental type.
    The biggest and most obvious inter-governmental organization is the United Nations. It derives its power from agreements between the member states that it is comprised of. The extent to which the UN is able to exercise its power internationally is determined by the degree of capacity as conferred upon it by constituent documents (i.e., a Charter). The power of an international organization’s constituent documents comes from the will of its members. The UN has a range of privileges and immunities as a result of the Convention of the Priveleges and Immunities of the United Nations (which is an agreement between the UN and its member states).
    The UN has the ability to bring an international claim for damage caused to the UN. The Charter of the UN seemed to contain radical ideas at the time of its foundation which have since then become accepted as rather commonplace. Legislatively speaking, the UN is composed of a General Assembly and Security Council, which has the primary responsibility for maintaning international peace and security. All the members of the UN agree to accept the decisions of the Security Council.
    In the future, I think the UN will eventually change the organizational structure of its institution. The fact that the Security Council is comprised of the winners of World War II is kind of archaic and not reflective of the actual global situation. How come those are the only 5 permanent members the rest of the world has to listen to, when countries such as Brazil, India, Germany, Japan, etc. are hugely important politically and economically? That’s one thing. I also would like to hope that the mandates of the United Nations will be better respected in the future. I think this will happen as the collective global conscious moves to a heightened awareness of the importance of international cooperation, but the fulfilment of this process is still a long way away.
    I also would like to comment on the fact that the UN sometimes gets a bad rep for “this, that, or the other” type of thing, but really people who “don’t believe in the UN” should stop complaining about it and start thinking about what they can do to improve the system. Yes it’s imperfect, but then let’s just do something about. The UN, or an international organization like it, is totally necessary to our small world.

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30. Derek Whelan March 1, 2010 at 1:18 am

    Class 7 Reading Question 1
    Morrison and White “International Regimes and War”

    Like Stephanie said the distinction between domestic and international politics according to the classical perspective is that national politics involves the “realm of authority, of administration, and of law” whereas international politics involves “the realm of power, of struggle, and of accommodation.” The primary cause of this distinction is that national politics are entirely structured around and reliant upon the existence of a sovereign authority. In international politics, it is therefore very difficult for conflicting states to wield to the neutral, regulating power of a third party because “the very concept of sovereignty denies the possibility of a higher authority.”
    The implication of this distinction, according to the classical perspective is that international politics is essentially characterized by a state of anarchy. However, the recent institutionalization of the international system has called this distinction into question. Morrison and White argue that the difference between international and domestic order is one of type rather than degree. The implication of this distinction, therefore, is that international politics should be governed by different theories than international politics instead of following reductionist theories that try to “import into international politics assumptions that only held in domestic politics.”
    Several aspects of the nature of international politics can make up for the lack of stability provided by a sovereign authority. The balance of power serves as one such source of international order. Kenneth waltz argued that equality of states fosters peace because “the first concern of states is not to maximize power but to maintain their positions in the system.” Hobbes, on the other hand, argued that rivalry was “endemic to the state of nature” and that “the solution to the problem of constant warfare among relative equals was the generation of radical inequality.” The hegemon thus acts as a “quasi-government.” Max Weber argued that social norms can serve as another constructive force for international institutions. He believed that the idea of a state’s right to power is its defining characteristic and the sovereign derives much of its power through its legitimacy according to social norms.
    All of these opportunities to compensate for the lack of a sovereign authority in international politics must be taken into account in our understanding of international law. As Robert Keohane said, “international regimes can facilitate cooperation by reducing uncertainty – uncertainty about the standards of behavior and uncertainty about the consequences of defection.” Invigorating international regimes to mirror the role of sovereign authorities within states may simply create “perpetual war for perpetual peace.” International law must focus instead on preserving an appropriate balance of power and deriving laws from social norms that can be widely accepted. International regimes like the United Nations, which is criticized for being governed primarily by the five permanent members of the Security Council, must meanwhile depart from their “unabashedly undemocratic” ways.

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31. Andrew Conner March 1, 2010 at 9:33 am

    Why do Goldstein & Martin suggest that legalization limits the progress of trade liberalization?

    Goldstein and Martin believe that an increase in legalization limits the progress of trade liberalization because of domestic actors. The more precise and obligatory a trade agreement is, the more resistance it will generate from domestic protectionist groups. Obviously if a trade agreement bans sugar subsidies, then every sugar farmer that receives a government check is going to lobby his or her representative. A more imprecise agreement won’t rally as much opposition because people are not triggered by the mention of their respective industries, according to Goldstein and Martin. Trade regimes must also be flexible in their enforcement so that a balance may be struck between discouraging opportunism and winning broad support.

    Now I would like to challenge this theory that more precise trade agreements will generate greater opposition domestically. I would not go so far as to say that Goldstein and Martin are wrong, but I think they underestimate the economic concept of substitution. If we go back to the ban on sugar subsidies that I imagined, we need to look at who stands to benefit from such a precise term in the agreement. That would be the corn producers. The increase in the price of sugar would lead people to substitute it with the heavily subsidized high fructose corn syrup. An agreement with more imprecise language would potentially lead to both the sugar and corn producers opposing the agreement. Obviously when applied to the real world this specific example has its flaws, but the concept is what’s important. Imprecise language can act as an umbrella that emcompasses a variety of industries. This can generate a great deal of “fear” among producers who lobby their representatives to make the the agreement more precise, thus omitting them from any repercussions of the agreement. To summarize, support for an increase in legalization could come from both the competitors of industries “penalized” by the trade agreement and from powerful protectionists who want to see there industries protected by a more precise agreement.

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32. Matt D'Auria March 1, 2010 at 4:22 pm

    Week 3 Response
    Class 5: What did Carr think was the appropriate relationship between morality and foreign policy?

    Carr’s approach to the relationship between morality and foreign policy is practically a mirror-image of the Athenian view that Might makes Right, that “the strong do what they can and the weak suffer what they must.” Accordingly, theories of international morality are the product of dominant world powers. As morality holds no real weight in international relations, appeals to the protection of moral norms can be seen as a useful political tactic. The role of these tactics (however disingenuous they may seem) should not be underestimated, for it is by morally justifying their own policies (and morally discrediting the policies of potential enemies) that powerful states gain approval for their actions and forge hegemonic systems. Appeals to the protection of the universal good are equally disingenuous, but they constitute another way in which powerful states work to consolidate their power. How so? The concept of “universal good” is always (according to Carr’s realist logic) linked to the national interest of the powerful state (or states) that sets up the system, so when other weaker states buy into such propaganda, they advance the interests of the dominant state(s).

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33. Chime Dolma March 1, 2010 at 4:26 pm

    Response# 5
    According to Epps what determines the rights and privileges assigned to non-state actors? In what ways has the legal personality of these actors changed? In what ways should we expect them to change in the future?

    According to Epps, the constituents of the non-governmental organization, groups and actors determine the rights and privilege. For example, the right and privilege for the United Nation is determined by its Charter, which was constituted by its various state members. I also think that its adherence to their Charter confers capacity or the authority to act as the International person. The qualification to be a member or a permanent member of the UN is another concern. Epps asserts accordingly to the Court, “what it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims,” 289. She claims that UN is the international person but it is subject to International law. Other than the United Nation, there are other non-state actors such as the NGOs like WHO, who assist international institutions like UN to further increase the strength non state actors. The involvement of these NGOs is quite a new framework to International relation. I think the structure of UN will change just like the League of Nations had to systematically evolve as more countries got involved.

    If the question is referring to non-state actors for non state-groups like terrorist groups, then Epps asserts that the they are a new trouble for international law because these non-state actors are not yet found as existing framework in the international law because its influence on international relations have been revealed recently. I believe this will change eventually once this affects the whole world, not just United States but if these terrorist groups victimize more countries.

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34. Moriel Rothman March 1, 2010 at 11:25 pm

    Class 7: Morrison and White on the Need for a Cohesive Theory of Order as pertaining to both domestic and international politics.

    Morrison and White suggest that the nature of the distinction between domestic and international politics “is one of degree rather than type.” In other words, contrary to commonly accepted “realist” formulations which state that domestic politics should be viewed through a certain theoretical lens, and international politics through a different theoretical lens entirely (based on the “anarchic nature of the international system”), Morrison and White suggest that perhaps the main difference between domestic and international politics is one of scale (international politics are inherently much larger scale and thus by definition more unwieldy and less controllable). The implications of such a suggestion are powerful; first it means that the seminal works of theorists such as Hobbes, Weber and Locke- generally viewed as applicable in domestic political theory only- actually could have greater bearing on international politics than is commonly presumed. Moreover, as put by Morrison and White, if “the distinction between international and domestic politics is continuous, then it is not inevitable that the international system should remain fully ‘anarchic’. By invigorating international regimes, we may reduce the amount of anarchy in the international system and, with it,
    the amount of war.” Such a conclusion has potentially huge political reverberations, as it is a direct refutation of allegations that “international law” is an oxymoronic concept, and indeed lays out dramatic and potentially world-altering mission for those concerned with fostering international peace and security, namely, to fix, regenerate, invigorate and remodel international regimes, just as those concerned with domestic politics would endeavor to do in the domestic political arena. “International regimes can facilitate cooperation by reducing uncertainty” and “can be used to generate the same kind of order generated by domestic political regimes.” There is thus massive potential for the role international law could play. However, Morrison and White caution that direct “building” of international regimes is not as panaceaic as many would hope, asserting that it is in fact not “clear that establishing a world government would be desirable even if it were possible.” As such, Morrison and White suggest the alternative of “international hierarchy,” which could foster healthy cooperation and competition between separate states in the international community. More important, however, than any specific plans for moving forward in developing or altering international regimes is, for Morrison and White, the creation of a theory of “order” that applies to both domestic and international issues, and does not subscribe to the dogmatic differentiations drawn in politics between all things domestic and all things international. Therefore, let’s get studying.

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35. Miles Abadilla March 3, 2010 at 8:25 pm

    Week 4 Response
    Describe the different “principles” by which states may claim jurisdiction. Which principle do you think ought to be given deference when they conflict?
    The territorial principle stipulates that a state has a right to try a felon whose crimes are committed within its own territory or commits a crime that has a “substantial effect within its territory” (101). The Nationality principle states that a state can exercise jurisdiction over individuals who are of its citizenship, even if abroad. The Passive Personality Principle that if a victim of a state undergoes an offence by a perpetrator, the state has a right to try said offender. The last principle that Epps states is the Protective Principle, which states that nations have a right to protect its territory or surrounding territory from anything that can breach its security. In my opinion, the Territory principle should hold priority over other principles since the country with which a crime is committed should have the right to try the offender. It goes along with respect and sovereignty more than anything since, as a visitor or non-national of that country, a person should respect and uphold the laws of the country that he/she is in. In class we were talking about the challenges of sovereignty and how certain identity groups feel the need to secede from their respective state but it is important to uphold the sovereignty of the nation since, as we’ve read, from the Morrison/White reading, international law is comparable to domestic law. Sovereignty is important, whether a non-national is breaking the law or a region—Basque, for example—wants to secede since the domestic laws of a nation are what build up the international community. There can be no international community without separate states that hold sway within its own borders.

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36. Stephanie Astaphan March 6, 2010 at 10:41 am

    Stephanie Astaphan
    Class 9 – Reading Questions
    Epps IX: The Peaceful Settlement of Disputes

    Before the advent of international courts, states preferred to settled disputes by direct negotiations without the interference of third parties or by other informal methods of dispute settlement involving a third party such as good offices, mediation, conciliation, and commissions of inquiry. Arbitration, a more formal, quasi-judicial method of settling disputes, found increasing favor in the international community partly because of the lack of any international courts until the twentieth century and their limited jurisdiction and partly because of the amount of control that the parties could exercise over the structure of the proceedings. In many ways parties created their own “court” and arbitration was defined as “a procedure for the settlement of disputes between States by a binding award on the basis of law and as a result of an undertaking voluntarily accepted.” The rapid growth of international trade and finance however has necessitated the creation of international and cohesive dispute settlement mechanisms.

    The International Court of Justice is the principle judicial organ of the United Nations. It functions in accordance with an integral Statute which is annexed to the UN Charter. The ICJ holds compulsory and advisory jurisdiction. Advisory opinions are not binding in the same way that contentious cases are binding on the parties before the Court but certainly have been influential not only within the UN but also in the development of international law generally. All members of the UN are parties to the Court’s statue but this does not mean that the Court has compulsory jurisdiction over all member of the UN. Instead, all members of the UN are free to submit to the jurisdiction of the ICJ in any case to which it is a party and all members have agreed to comply with the decision of the ICJ in any case to which it is a party. Also, states only accept the Court’s jurisdiction under such declarations in relation to other states that have accepted the same obligation. That is, the Court’s jurisdiction extends only to those who first submit to it. This makes the Court a very different institution from most other courts which hold jurisdiction regardless of defendant consent. This model was likely adopted to preserve state sovereignty.

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37. Anna Solovieva March 7, 2010 at 4:41 pm

    1-Nations have existed for millennia without international courts to sort out their disputes. Why do we need them now? How did they sort out their disputes without them?

    Well actually ‘nations’ as we know them today have not existed for millenia, but I know what you’re getting at. Even though nations have dealt with their drama for millenia without international courts to sort out their disputes, the human race has undergone a dramatic transformation relatively recently and now more organization and predictability in the resolution of international law is desirable.
    In earlier times wars were raged on a smaller scale because we weren’t as advanced technologically. People generally got beef about the same things they still get beef about today, although I would argue that people are even more fussy nowadays because now we have the capabilities to concern ourselves with issues of politics and morality to an extent that was not thought of earlier.
    In the past disputes were settled either via war or diplomacy. Yet as conflicts began increasingly more ‘globalized’ (i.e., WWII) it became clear that war could potentially mean way more destruction than even enemies could ever want for each other (especially with the invention of atomic bombs), and that diplomacy was not always a successful means of determining justice. International courts today provide predictability and an organized structure for resolving conflicts. They are also meant to be objective in terms of serving as an independent party for the purpose of resolving conflicts between states.

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38. Chime Dolma March 7, 2010 at 9:16 pm

    The necessity of International Mechanisms for disputes
    Usually states prefer to settle disputes by direct negotiation rather than having a third party involved. However, recently the concept of “arbitration” defined by the International Law Commission as “a procedure for the settlement of disputes between States by a binding award on the basis of law and as a result of a an undertaking voluntarily accepted” has become a more favorable way of settling disputes between states. Epps also claim that Arbitration is generally more flexible than that of other existing courts (262). As Epps assert, “The rapid growth of International trade and finance has necessitated the creation of dispute settlement mechanisms.” As a result, there has been an increase of dispute settlement mechanisms like AAA (362). I cannot agree more. The fact that now there is an increase in international business/relation, it is logical to assume that there would be an increase in disputes over different interest. Thereby, we need such courts like the International Court of Justice. The International Courts was originally set up under the League of Nation in 1920s but when the Untied Nation was created in 1945 and the League of Nation failed, it was again established under United Nations Charter to continue the enforcement. Now it is the court is “principal judicial organ of the United Nations.” (633) Epps write that all the party members of UN are members of this court. This doesn’t mean that the court has the jurisdiction over these states but rather it is another source for international disputes settlement. The members have the right to either use the mechanism or not. The International Court of Justice is composed of fifteen judges, who are nominated by the national groups. The Court differs from the national courts that a defendant or respondent can chose to be there or not, where as in a domestic court, the choice is not there. Although the case studies demonstrate that the effectiveness of these mechanisms to reduce hostilities is questionable it is certainly better having none of these courts. The necessity of these international mechanisms will certainly continue to increase in my opinion due to a number of things (e.i globalization).

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39. Chime Dolma March 7, 2010 at 9:19 pm

    Usually states prefer to settle disputes by direct negotiation rather than having a third party involved. However, recently the concept of “arbitration” defined by the International Law Commission as “a procedure for the settlement of disputes between States by a binding award on the basis of law and as a result of a an undertaking voluntarily accepted” has become a more favorable way of settling disputes between states. Epps also claim that Arbitration is generally more flexible than that of other existing courts (262). As Epps assert, “The rapid growth of International trade and finance has necessitated the creation of dispute settlement mechanisms.” As a result, there has been an increase of dispute settlement mechanisms like AAA (362). I cannot agree more. The fact that now there is an increase in international business/relation, it is logical to assume that there would be an increase in disputes over different interest. Thereby, we need such courts like the International Court of Justice. The International Courts was originally set up under the League of Nation in 1920s but when the Untied Nation was created in 1945 and the League of Nation failed, it was again established under United Nations Charter to continue the enforcement. Now it is the court is “principal judicial organ of the United Nations.” (633) Epps write that all the party members of UN are members of this court. This doesn’t mean that the court has the jurisdiction over these states but rather it is another source for international disputes settlement. The members have the right to either use the mechanism or not. The International Court of Justice is composed of fifteen judges, who are nominated by the national groups. The Court differs from the national courts that a defendant or respondent can chose to be there or not, where as in a domestic court, the choice is not there. Although the case studies demonstrate that the effectiveness of these mechanisms to reduce hostilities is questionable it is certainly better than having none of these courts. The necessity of these international mechanisms will certainly continue in my opinion due to a number of things (e.i globalization).

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40. Nes March 7, 2010 at 10:53 pm

    The structure of the ICJ:

    The International Court of Justice (ICJ) is similar to the given example, the Supreme Court, in a few ways. For one, its members consists of all of the members of the UN, analogous to how the Supreme Court presides over all of the 50 states. Unlike the Supreme Court, There is a set number of judges (15), with a 9-year term limit (as opposed to limitless on the Supreme Court). Judges are appointed by the UN General Assembly and Security Council, and all UN members are allowed to nominate a judge. However, the nomination does not come from the government (as Supreme Court justices by the President) but by the Permanent Court of Arbitration of each state.

    Like the Supreme Court, the ICJ has jurisdiction over matters involving two or more parties (states) when those parties choose to use the court. However, unlike the power that the Supreme Court holds over U.S. states, jurisdiction of the ICJ only goes in as far as the concerned parties are willing to accept the terms. Thus, while jurisdiction passed by the ICJ has been influential in how international law is perceived, individual members are capable of dismissing the jurisdiction (as in Nicaragua v. United States, 1984). This is unlike the Supreme Court, where the rulings are binding to all states. This is possibly as a result of any one member unwilling to give too much binding power to the ICJ, as a matter of respecting and preserving sovereignty.

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41. Diana Chiu March 8, 2010 at 11:59 am

    Since Miles has already laid out the five principles in which a state may assert jurisdiction, I thought I might speak to the second part of the question of which principle should give deference in times of conflict. In my opinion, the Passive Personality and Protective principles extend the reach of dominant nations in allowing them jurisdiction they otherwise would not have legally. In the United States v. Fawaz Yunis case, I was surprised the passive personality principle took precedence over either the nationality or the territorial principles. Epps mentions that the principle is often times controversial and has only become a phenomenon recently due to efforts to curtail acts of terrorism (Epps 106). The US courts sentenced Yunis to five years for conspiracy, thirty years for hostage taking, and twenty years for air piracy, when only two passengers of Flight 402 were US citizens.

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42. Matt D'Auria March 8, 2010 at 12:15 pm

    Week 4 Post

    Describe the different “principles” by which states may claim jurisdiction.

    Epps identifies 4 distinct principles that states rely upon in order to claim jurisdiction over a particular person or entity. The first is the Territorial Principle, which asserts that a state has the authority to make its laws applicable to both individuals living within its borders, and to conduct that takes place within its territory. The principle also includes the right of states to claim jurisdiction over activities that occur outside its borders IF such activities are judged to have a “substantial” impact within the territory of that state. The second concept is known as the Nationality Principle, which permits a country to adopt certain laws that govern the conduct of its nationals while they are outside the sovereign’s territory. This includes the ability of a state to exercise criminal jurisdiction over any of its nationals accused of criminal offenses in another state. For example, under the Nationality Principle, a sovereign can make it a crime for its citizens to engage in sexual relations with minors. The third principle, the Passive Personality Principle, asserts that a state may apply law (particularly criminal law) to an act committed outside its territory by a foreign national where the victim of the act is a national. The United States often appeals to the Passive Personality principle in order to prosecute terrorists. The arrest and imprisonment of Panamanian military dictator Manuel Noriega by US forces provides another good example of this principle at work. The final principle identified by Epps is the Protective Principle, which recognizes that a state can adopt a statute that outlaws conduct that occurs outside of its borders when that conduct threatens the security, or certain other national interests, of the state. Espionage and treason seem to be classic examples of the application of the Protective Principle, for both are acts that endanger a state’s internal security.

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43. Andrew Conner March 8, 2010 at 9:23 pm

    There are 5 basic principles to jurisdicition: the Territorial Principle, the Nationality Principle, the Passive Personality Principle, the Protective Principle, and the Universality Principle.

    The Territorial Principle should be given deference when these principles are in conflict because its foundation is the most rudimentary definition of what constitutes a state. That of course is the monopoly of the legitimate use of force in a given territory. Ultmately a state’s right to maintain jurisdiction over its territory should legally supercede all other principles of jurisdiction unless the state in question has already forfeited such rights when entering into an agreement/orgainization. Should a state wish to exercise its jurisdiction using another principle, then that is where diplomacy should come into the equaiton.

    The Universality Principal is tricky because one wants to think that it should supercede all other principles since that is essentially what it is designed to do. However, the potential abuse of this principle is far too great a risk to allow it to be the trump card. Now should a state enter into an organization such as the UN that prohibits certain crimes against humanity, then the territorial rights are forfeited. Should a state not be a UN member yet still commit such crimes, then it is left to the coalition of the mighty to enforce their conception of what is right.

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44. Miles Abadilla March 11, 2010 at 9:29 am

    Week 5 Response
    Differences between the ICJ and the ICC include: ICJ covers legal disputes between states and can give advisory opinions to international organizations while the ICC only tries those that have breached crimes against humanity and have committed genocide, war crimes and extreme acts of violence; there are 15 ICJ judges and 18 ICC judges; ICC judges have a particular specialty/focus on humanitarian rights/law; the ICC emphasizes equal geographical and gender distribution among its judges; the ICC has two Vice-Presidents; the official language of the ICJ is French and English, which is similar to the ICC but the ICC has working languages Arabic, Russian, Spanish and Chinese in addition to the first two. The accused in the ICC must be present during the trial while parties in the ICJ do not have to be present as shown by the U.S. not partaking in the trial regarding its involvement with the Contras against the Sandinistas.
    Similarities are no two judges can be parties of the same state; judges work full-time and are appointed based on certain qualities that match a high-ranking tribunal.
    British House of Lords stripped Pinochet of his immunity in order to try him for his crimes against humanity i.e. torture and other conspiracies violating international human rights. Kissinger criticizes universal jurisdiction and, in particular, its applicability in the Pinochet case. Kissinger states that precedents will be set that may be detrimental to newly established democracies. Universal procedures were emphasized instead of “national reconciliation procedures” that honored the legal processes of a nation. Additionally, the application of extradition will be mishandled and will be continually used regardless of the legal procedures of the accused individual’s own country. Kissinger states that politics will inevitably mix with this extradition procedure since states can ask for extradition against the accused in order to deal their own level of punishment against the individual.

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45. Diane Lopez March 12, 2010 at 2:58 pm

    Diane Lopez
    PSCI 236
    Response Paper # 5

    On what grounds does Kissinger stake his resistance to “universal jurisdiction”?

    In his article, Kissenger argues against “universal jurisdiction” saying that it cannot work. He argues that the establishment of universal jurisdiction would prevent justice because people, states, leaders wouldn’t be given the proper representation, yet alone prosecution. In supporting this claim he uses the example of the leaders that were prosecuted. Some faced punishments while other leaders, who committed similar crimes, were not punished, which proves that universal jurisdiction can be misused. Each case is different and you cannot rely on a universal law to ensure justice because each case needs to be tried differently in order to ensure justice. Though in some cases you can identify he who is being prosecuted, in other cases you cannot. When seeking justice, you cannot allow for that “fuzziness”, as Kissenger puts it, to exist; so for Kissenger “universal jurisdiction” is too arbitrary. Essentially, his main argument is that “universal jurisdiction” disrupts the standards of international politics. He believes that the domestic courts should try their own criminals.

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46. Stephanie Astaphan March 13, 2010 at 9:52 am

    Stephanie Astaphan
    Class 9 – WTO and the Dispute Settlement Body (DSB)

    The DSB makes decision on trade disputes between governments that are adjudicated to the World Trade Organization (WTO).

    The major difference between the DSB of the WTO and the ICJ or ICC is that the DSB had mandate over all trade disputes between WTO member states without first needing states to voluntarily submit to the jurisdiction of the DSB. That is, being a member of the WTO automatically means being subject to the rulings of the DSB.

    Wouldn’t this mechanism ensure that the only way to participate in the international system would be to embrace free markets and openness to trade? and by extension the capitalist system of economics? Just as membership in the UN ensures for democratic systems of governments as sovereignty is the only basis for participation, membership in the WTO ensures for capitalism through free-trade promotion. Isn’t it ironic that where the interests of large states are hurt, voluntary submission is required but where they are promoted, submission is implicit? It is to me.

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47. Derek Whelan March 14, 2010 at 4:56 pm

    Derek Whelan
    Class 11 Reading Question #3

    In discussing the issue of power in the WTO, the most important question is whether developed nations that possess the most market power and economic leverage, namely the United States and the EU, hold a disproportionate influence over the legislative and judicial bodies of the WTO. Thus an important component of the relationship between law and power in the WTO is the issue of how the increased legalization of the WTO (in comparison to GATT) has affected this apparent balance of power.

    At first glance it would seem that the WTO legal system empowers developing countries given the theme of consensus in legal processes. In legislative processes, a consensus decision requires no manifested opposition by any member present. Similarly, in the Dispute Settlement Branch of the WTO, a consensus is required to block the formation of a panel, adoption of a report, or an authorization of retaliation for continued noncompliance. Barton notes that underdeveloped nations to some extent are pleased by legalization and adjudication in the WTO because of their constraining effects on the United States’ unilateral determination of contracts and judicial rulings.

    Empirically, however, Barton argues that the function of law in the WTO serves to widen the disproportionate balance of power that was seen in GATT. As he states, “the radical judicial reforms of the Uraguay Round represented not a multilateralization of U.S. unilateralism, but an Americanization of the GATT/WTO dispute settlement process.” The overall effect of the WTO dispute settlement system, in practice, is to help enforce substantive agreements supported by the United States. Developed nations tend to dominate the legislative processes of the WTO through the use of “concentric circles” in which most of the progress on negotiations takes place in informal caucuses consisting of the major powers.

    Even the consensus-based system was, in many ways, a strategy of developed nations to constrain the dissenting power of developing nations. In the absence of such a system, a bloc of developing countries could form and assume many of the legislative functions of the organization, even if all the industrialized countries united in opposition. Power-based bargaining remains a common influence behind the judicial and legislative rulings of the WTO. The Uruguay Round itself was closed through such tactics. Many developing nations were reluctant to sign on to several agreements of the Uruguay Round and the United States and EU responded to this reluctance by withdrawing from the GATT 1947 agreements and terminating the GATT 1947 obligations to countries that did not accept the Final Act and join the WTO.

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48. Chime Dolma March 14, 2010 at 9:57 pm

    Response #7
    1. How does the legal body of the WTO (the DSB) compare to other international legal bodies we have considered (the ICJ, the ICC, &c)?
    The obvious differences between the ICJ, ICC and the DSB of WTO are their essential focuses of each institution. As far as my understanding goes, ICJ handles any disputes that are voluntarily brought by any states, where as the ICC is more specialized in “criminal” activities such as genocide, act against humanity etc. The differences between ICJ and ICC are very well presented by Miles. Therefore, I am not going to talk about their differences. However, what distinguishes the DSB from the ICJ and ICC is that DSB specifically deals with trade disagreement. It is one the body of World Trade Organization, which was a replacement of General Agreement on Tariffs and Trade (GATT). The disputes are usually about broken promises. If a country decides to make unilateral decision that could harm another country or is contrary WTO’s rule/ regulation, the issue is brought to have a consultation (60 days) first and if that fails, then it is brought up to DSB. The case between Venezuela (later Brazil) against United States took fifteen months because it was an appealed case. If it is not an appealed case, it doesn’t take more than a year. The procedure is very much like a court, it prefers to countries to solve the problems by themselves. “Although much of the procedure does resemble a court or tribunal, the preferred solution is for the countries concerned to discuss their problems and settle the dispute by themselves. The first stage is therefore consultations between the governments concerned, and even when the case has progressed to other stages, consultation and mediation are still always possible.”

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49. Miles Abadilla March 15, 2010 at 7:50 pm

    Class 11 Response

    The WTO is made up of a Dispute Settlement Body that creates panels in order to settle conflicts relating to trade between nations. Unlike the previous institutions we have studied, the WTO not only settles disputes but is a forum for settling trade disagreements and set rules for interactions between nations. Panels hear and weigh the arguments of each side, giving a final verdict on the case with which both nations must comply with or appeal to. The Panel’s decision becomes the official statement of the DSB.
    The US’s concession to WTO rulings is similar to what Holmes discusses in his article. Laws shape behavior because consequences are what really matters. States will inevitably be the “bad man” and it is up to law to create penalties and consequences in order to keep them in line. The US modifying its behavior would be contrary to what Carr argues. Carr states that internationalism is a tool for great powers to maintain their status quo and realize the fruition of their interests. The US enacting laws in response to Uruguay’s and Brazil’s complaints runs contrary to Carr-like thinking.

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50. Andrew Conner March 15, 2010 at 9:11 pm

    On what grounds does Roth advocate “universal jurisdiction”? How do his views compare to those issued by Kissinger? Whose argument do you find more persuasive?

    Roth advocates “universal jurisdiction” for several reasons. First, it would mean that in theory there would be no place for people like Augusto Pinochet to hide. There would be no need to worry about extradition treaties when dealing with war criminals and such because the ICC would have jurisdiction should another legal body fail to act. Also, the ICC would eliminate the arbitrariness that comes with the application of the universality principle. Finally he makes the point that there is a growing frequency of despots who are facing trial in domestic courts under the univesality principle, so the ICC could act as a deterrent that would make these despots reconsider committin atrocities.

    Kissinger has a different opinion of the ICC. He warns against the possibility of American soldiers being dragged to the Hague for trial, and he essentially says that the political leanings of foreign countries will determine who gets prosecuted and who does not.

    While Roth ultimately has the more convincing argument since the ICC would be a step in the right direction towards eliminating the arbitrariness (and overall ridiculousness) of the universality principle, he fails to counter Kissinger’s example of Pinochet. In fact, it seems as if Roth assumes that the majority of his readers are relying on his summaries of Kissinger’s work rather than the actual text, so he feels like he has the liberty to mislead them. That may be too cynical of me, but here’s my point:

    “Pinochet was sought not, as Kissinger writes, ‘because he led a coup d’etat against an elected leader’ who was a favorite of the left. Rather, Pinochet was targeted because security forces under his command murdered and forcibly “disappeared” some 3,000 people and tortured thousands more” (Roth).

    According to Kissinger:

    “[Universal] jurisdiction has involved the prosecution of one fashionably reviled man of the right while scores of East European communist leaders — not to speak of Caribbean, Middle Eastern, or African leaders who inflicted their own full measures of torture and suffering — have not had to face similar prosecutions.”

    Kissinger does not try to deny that Pinochet committed atrocities, but rather he puts Pinochet in the same category as the violent dictators with other ideological leanings. I assume the statute of limitations on the crimes committed under the orders of Fidel Castro during and after the Cuban Revolution has not expired, and I’d like to see a nation try to bring China’s rulers before the ICC for crimes against humanity. Pinochet is the punching bag of the intelligentsia while Che Guevara, who was the judge, jury and executioner (if I’m not mistaken…regardless, he was a murderer) of Batista’s supporters, is romanticized. The punishment should fit the crime regardless of one’s politics.

    The truth is that although the ICC is a step in the right direction, it will not be as effective as Roth advertises in eliminating the arbitrariness that currently exists due to the universality principle. The effectiveness of the ICC will also be severely limited because its jurisdiction is limited to those countries that sign the treaty. That is like standing in the town square and asking all the citizens to sign an agreement allowing thems to be punished should they commit a crime. Sure the good ones will do it, but, borrowing from Oliver Wendell Holmes, the law should be aimed at the bad man. The ICC would not have jurisdiction over the likes of Saddam Hussein and Kim Jong Il unless they allowed that to happen. I’m not optimistic.

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