International Law

In the never-ending quest for things to study and learn about, especially from good sources, the International Relations and Security Network has a number of on-line classes, many of them free, with specialized topics that often touch IR/IL.  Some of the classes may oversimplify but many address topics one would be hard-pressed to study elsewhere, such as specific peacekeeping operations or European security policy.  These classes are a valuable resource and highly recommended.  If one is writing a law review or other article on these topics, it might be worth seeing what is said from an IR/operations/etc. point of view and these classes can at least provide an introduction.

The Willem C. Vis International Commercial Arbitration Moot officially kicks off tomorrow in Vienna.  Having gone as both a participant and a coach for Harvard, I can wholly recommend the event.  Though there are always issues with somewhat subjective competitions (and now, having been a Jessup judge, I can appreciate how hard it can be to evaluate teams), the spirit of the competition is fantastic and the all-together-at-once aspect is wonderful.  There are teams from all over the world, all in Vienna at the same time, all competing but, equally important, getting to know one another.  It is also THE networking event, especially for Europeans, who are far more dedicated to arbitration as a practice than we tend to be in the US, where it is mostly seen as an offshoot of litigation.

The VIS is a unique and fun event and I am more than a little jealous that I am not there this year.  But I hope to be a judge for it in sometime in the future.  In the meantime, the best of luck to all the participants!!

An article in the New York Times on the biological aspects of “morality” among primates and its sampling of moral philosophers at least brings to mind the continuing debate in IL of if there is such a thing as a universal morality or “norms” for humans and what these might be.  The tendency for some to reject this idea usually favors an “amoral” approach, or simply rule by whomever has power (though even that, ultimately, relies on some concept of morality… it seems to me to be an inescapable box). 

The debate on human nature is endless (and has been oft mentioned here), but it is worth again thinking if there really is at least something universal, and, as the article suggests, it is not really every “single” creature against every “single” other that is wired into our distant past.  If there is an inherent group connection, how far can this extend?  To family, to the large community, to a nation, to the world?  What are the limits on it?  Does there need to be an “other”, a human other, or can this other be inanimate, such as the forces of death or poverty or degradation to humans everywhere?

The dissing of “human rights” or other norms as entirely culturally or socially constructed (a view shared, oddly enough, but those on the so called post-modern hyper-front usually viewed as “left” but more so as a caricature and also by the “pragmatists”/formalists who tend to be centrist/right… perhaps the divide is more modern/post-modern than anything) is a common critique, but many scholars/humans/etc. still feel there is something common there, at least some common thread of humanity.  And examples to the contrary of this or that custom are often reductionist and do not take into account that of course there is variation (and various levels of control, power structures, views, etc.).  Examples of “other cultures” that do not “share out values” often select the worst examples, ignoring that such negative examples of our “morality” could be found in any culture.  Of course everyone from human rights activists to the Bush administration have made claims of the universality of X or Y principle.  The hard part is sorting through the mess to see what is common ground and what can be used constructively to make the world a better place.   

At least this articles shows the continuing exploration from all angles of what, if anything, is truly a basis for norms.  (…Of course the morality of chimps might be socially/power imposed too.  Viva la chimp revolution!)

And of course the research on primates and other animals has ethical implications; the more we learn of the cognitive and “moral” ability of animals, the more it might suggest we have some commonality and perhaps owe something to them.

On working through some more Marcuse, one thought seemed particularly relevant to attempts in IL legal scholarship, especially in the rational choice theory/law and econ realm (but also in others), to condemn/critique that which cannot be readily quantified or fit into certain “methods” (ignoring for now that so far most attempts at quantification in the legal realm either misapply the scientific methods being cited, make large assumptions, or both).  These can be seen, in a way, not as just an attempt to add “order” or make a new argument, but as also an attempt to limit and control and knock out other arguments.  In IL this is perhaps more visible because of the “newness” of the field, or at least the newness of applying certain techniques to it.  On a general level, perhaps this helps explain why there is such a disconnect when supposedly “rational” arguments bump up against moral/other arguments and when law can sometimes come up with “conclusions” that defy our (putting aside who “our” represents… at least for now… which remains a key critique) moral instincts.  Marcuse cites Bridgman as follows:

“To adopt the operational point of view involves much more than a mere restriction of the sense in which we understand ’concept,’ but means a far-reaching change in all our habits of thought, in that we shall no longer permit ourselves to use as tools in our thinking concepts of which we cannot give an adequate account in terms of operations.”  (in Herbert Marcuse, One-Dimensional Man, Beacon Press, Boston, 1964, available online, citing P.W. Bridgman, The Logic of Modern Physics, loc. cit., p. 31)

Marcuse goes on to say this has happened outside the sciences, in that the “radical empiricist onslaught” provides the “methodological justification for the debunking of the mind by the intellectuals — a positivism which, in its denial of the transcending elements of Reason, forms the academic counterpart of the socially required behavior.”  (id.)  Thus, fitting with his overall theme about society, academic debate is also rendered limited and “one-dimensional” or, at least as one might see in IL, within a very narrow range, and this self-perpetuates based on justifications and methods of argument that tend to support the prevailing system.  

Of course, if this is true, this limits discourse on all sides or at least rendering some arguments, from the “right” or “left” seemingly out of synch.  And maybe this is a necessary thing, to provide order and stability, and law has just not “gotten it” yet.  But it does make some sense that when a certain order is structuring not only particular outcomes, but also the rules to get to those outcomes, this limits the range of outcomes overall.  In academics, perhaps it is as the recently late Baudrillard suggested, that modern academic debate is basically weak and cowardly, not bringing up key issues, truly new arguments, etc. (which this blog can certainly be accused of, generally taking a more centrist tone).  If anything, the “new” arguments have probably come from the right rather than anywhere else, or at least the ones from the right have been booming in recent years (perhaps because they are supporting prevailing/growing power structures?), perhaps to decline as certain ideas are debunked in practice, while the anti-academic/intellectual movements have been more successful at shouting down any new (or old) ideas from other angles.

No matter what one thinks of Baudrillard’s more provocative ideas, he probably has a point about the academic debate overall, perhaps in part because of what Marcuse was saying?  In some ways perhaps the shouting and hollering about “intellectuals”, baring any kind of complete crack-down/book-burning/wave of intolerance, actually will help the debate, since it forces actors to take stances and brings out the debate when perhaps the previous waves of limits on debate, those Marcuse is getting at, were (and are) in some ways less direct but more pervasive?

According to the NOAA, though the US temperatures this winter were near average overall (with colder temperatures in certain regions and warmer ones elsewhere, such as here in New York, where winter never really “happened” with the exception of a few days here and there), worldwide the global average temperature for December 2006 - February 2007 was the warmest ever recorded for the December-Feb period.

Of course there are lots of factors, such as El Nino, as the article mentions, and one can slice the cake (any any stat, really) to make it look different.  But putting aside the causes/etc. debate (if one can), and even putting aside potential or actual disasters (again, if one can), duties/moral imperatives/environmental appreciation/free-market v. externalities, etc. and even putting aside rather frightening other risks (if such risks are even possible, it might behoove some caution), if temperatutes keep rising, ”simple” problems like crop growth and cycles (like the maple syrup problem here), losing certain animals to environmental conditions, even tourism issues in places where weather is a factor (from ski resorts to hotter climates that might become too hot for comfort) come into play.  In some ways the debate over the “meta”-narrative of global warming might miss some of the direct impact, which will have often un-touted but real implications, and legal implications from everything to insurance risks to security risks if there are food and water issues, especially in already conflict-ridden areas (doomsday-sounding scenarios aside, “simple” droughts can cause havoc in a number of places, particularly in Africa), international environmental law, etc.  For an even more pedestrian approach, just think of declining winter coat sales - a real impact to certain retailers.  A Scotsman article also notes the impact (positive and negative) of rising temperatures and of wildly varying temperatures on all sorts of businesses and products, from Guinness to garden-store products.  The commentary to the article is a mixed bag of those arguing there is/is not/someone-else-is-to-blame-for global warming, and it is true that from a commercial perspective, temperatures might not be the key factor.  But from a simple risk perspective, one might be wise to take a look at one’s field and consider if rising temperatutes might have an impact one way or another, perhaps in ways one might not initially think of. 

For anyone interested in a great many subjects, MIT’s attempt to put almost its entire curriculum online for free is a wonderful thing.  For lawyers looking elsewhere for insights, inspiration, etc. (with all of the caveats about dilettantism), the cite is a great resource.  Though obviously geared (mostly) toward the undergrad level, for IL-types in particular it provides multiple ways of brushing up on those IR theories, and the somewhat self-importantly labelled “New” “New Haven School” scholars will have more to feed on.  For practicing attorneys, perhaps a refresher on other aspects of life might do us good! 

This story has been under-reported in the press in the United States, but in Uganda there is an ongoing struggle for judicial independence in the wake of interference by the executive.  AllAfrica.com has regular updates from a variety of news sources.  It is a fascinating story and show what seems to be increasing conflict as judiciary bodies in different parts of Africa start to challenge over-arching executive or (often controlled) legislative power.  In the face of very real consequences, these are brave and principled judges and lawyers and as the protests show, others are also taking their side.  The backlashes may continue, but they are also a sign that some judiciaries are trying to make a stand in spite of stong pressures against them.  Perhaps these are Marbury v. Madison moments all over, with perhaps even more at stake for the judges?

Here is an article from Agence France Press on an interesting row over Eritrea’s attempts to get to the US diplomatic mail, which, if true, would appear to be a violation of Article 27 of the Vienna Convention on Diplomatic Relations, especially 27(3) in which, “[t]he diplomatic bag shall not be opened or detained.”

It is worth noting that Eritrea was previously found violating the VCDR in a decision by the Eritrea-Ethiopian Claims Commission in 2005.

This week is far too busy deal-wise for anything but a short head’s up about ILJ’s symposium at Harvard tomorrow:

http://www.harvardilj.org/index.php?page=Symposium

It looks to be a great mix of speakers, including some nice representation from Fletcher.  And with the increasingly heated rhetoric on Iran and North Korea these days, it should be worthwhile, even though sometimes framing it in “preemptive” terms already skews the question a bit and makes the topic seem more palatable than it really is, especially when what one is “preempting” is open to interpretation.  The ticking-time-bomb trope is likely to be deployed by somebody in the debate. 

The second planned topic is a somewhat lesser-addressed one, namely on “preemptive strikes against non-state actors without the approval of the sovereign nation in which the non-state actors are located.”  But here the ticking-time-bomb will likely emerge again, no matter how messy such things might be in the real world.

Though it is always interesting to note/debate preemptive action on a large scale, say a full-scale invasion of a country, and also interesting to think of the non-approved surgical strike in another country (also a somewhat romanticized IL topic) — both of which make great movie plots — aren’t “lesser” incursions also forms of preemptive action, such as various parties making strikes in the Horn of Africa?  Or targeted killings around the world?  Or supporting with weapons, training, and sometimes even direct military support, various local groups you think might help your cause?  Or former colonizers getting involved in actions in their former colonies?  Of course state consent then becomes an issue (which it looks like tomorrow’s problem will dodge), and one can debate what level of consent is required and when (before, during, after?).  Is it ok just to be the enemy of someone’s enemy? 

But despite the heady talk of “classic” preemptive strikes, no doubt of continuing and key importance, smaller-scale interventions are occuring at multiple levels all over the world and affecting vast numbers of people on a daily basis.  Sometimes these are just “defined away” out the debate, or maybe not well thought of because they occur in lesser-known parts of the world (though often done by “key” actors). But it is also worth considering if and what international law can say (or do) about these “preemptive” attacks.