International Law

Here is an interesting article available on SSRN on “The Laws of War in Ancient Greece” by Adriaan Lanni.  It starts out (almost by necessity) with the infamous Melian dialogue (perhaps the opening lines in many IL classes, especially those taught by realists) but goes on to show that this is far from the whole story.  The article argues that while the laws and norms of warfare in ancient Greece were not humanitarian in nature, “[t]he absence of a categorical humanitarian ethos in the Greek mind tends to make us believe in that the Greeks had no law of war, or that the law broke down in the fifth century.  I see something different: a limited but relatively stable set of norms, uniformly recognized and broadly obeyed.”  She goes on to note that though the Greek laws may seem odd to us, they showed there was a “higher law” than the laws of any state.

This is obviously an interesting take, and pokes holes at some of the main realist histories which have taken on a sort of “truth” through sheer repetition.  It is interesting to note though that this article focuses almost exclusively jus in bello (laws of war — how it is engaged in), and there is little mention of jus ad bellum (”Just War Theory”…laws of when wars can be engaged, etc.).  Some scholars, though no means all, are willing to give more of a pass to jus in bello (that things such as the Geneva Conventions are generally binding — note it is a very different question than which particular rules under the Geneva Conventions might be binding in any given situation) as more binding international law than jus ad bellum (such as arguments that the US war in Iraq is legal or illegal).  Was there any Greek thought on jus ad bellum?  On what might or might not be valid reasons to engage or not engage in war?

This is all the more interesting as the Melian dialogue is often used by realists in arguments about jus ad bellum more than jus in bello.  After all, the Melians are basically arguing that their neutrality should be respected under international law.  Athens goes with a “might makes right” approach… “you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must” (translated differently, and almost certainly more accurately, in Lanni’s article, but the sentiment is the same).  Therefore the Melians should pay tribute or be destroyed.  This is far more a question of what is a Just War and whether the Athenians can “legally” or justly/rightly attack the Melians at all, rather than a question of the actual conduct of the war once it is decided upon.  

On a separate note, it is also interesting to think how this might tie into later Western notions of laws of war, largely based on Judeo-Christian heritage and thus sometimes dismissed for being simply appeals to a higher power that have no independent or “legal” binding.  But if the Greeks also felt they were restricted in some way, perhaps others did too.  Is this just a question of what any “culture”’s views of such laws might be?  Some authors have pointed to everything from Sun Tzu suggesting limits on the way that wars were conducted, the concept of war crimes in the Hindu code of Manu, the 1305 trial of Sir William Wallace, through Grotius and onwards.  Is it worth looking to see if there are any shared values, no matter their source?  Is this something to work from, at least for jus in bello?  But the Greek values seem different than those classic Western jus in bello ones…  and perhaps many of those were because they were all part of the larger Greek culture (i.e. did the rules apply when Greeks fought non-Greek civilizations?  Could they destroy their temples and/or fight during their religious holidays?  My guess is ‘yes’, but I don’t know)? 

Lots to think about, in any event.

Even without getting into the scope/depth/existence/possibility of a US or more broad liquidity/credit crunch and/or economic downturn, this is an interesting column from Martin Wolf at the Financial Times on what might happen if there is a real crisis (or, as he frames it, what will happen because of a real crisis that exists now).

It is interesting to think how international economic law and regulation might adjust (or in some cases, be created in relatively unregulated areas) if there are concerns with various housing and credit markets, particularly as these were internationalized and securitized.  Might additional legal regimes be created?  How might claims in the current market play out as they expand to international parties?  If there is a big shift, as Wolf argues, certainly legal claims will follow (and are starting in subprime, as this Economist article notes), along with considerations of new regulatory approaches.  Will responses to any crisis be country-by-country or more universal?  Does it depend on if there is “decoupling” or not?  Certainly some have argued that there will be no decoupling (see, e.g. Nouriel Roubini’s blog) — but that does not mean that responses might not vary between different countries and different actors, as much Roubini hopes for more coordinated approaches.

This is an excellent article from Deborah Boucoyannis entitled “The International Wanderings of a Liberal Idea, or Why Liberals Can Learn to Stop Worrying and Love the Balance of Power”, published in the American Political Science Association journal, arguing that the balance of power is at heart (and historically) a liberal principle and that it can be seen as compatible with the modern, especially US-style, liberalism.  It is of particular interest to liberal international lawyers who might feel a conflict between balance-of-power structures (often set up and enforced, at least in part, through law) and liberal goals.  And of course realist legal scholars should take note (and confirm or argue against/etc.) as the article argues that realism is best identified with tendencies towards concentration.  It would be interesting to test these theories out on IL and legal regimes. 

In any event, hopefully re-workings of concepts such as this will help break up some of the camps up in IL scholarship, which so often seem to be overly-simplified versions of IR camps.

Here is an interesting new review of a book that has been out for a bit, edited by Thomas Carothers, on the “Promoting the Rule of Law Abroad: In Search of Knowledge” which, as reviewer Simon Stacey notes, is not shy about taking a critical look at the theory and practice of ROL programs.  Thomas Carothers has been a leader in the rule of law field for quite some time and foresaw many of the problems before they were widely known.  The essays are by other leaders in the field, so this should definitely be worth a read. 

It is especially important to get this “right”, or do it as best as one can, as ROL programs proliferate and get mixed into larger geopolitical agendas.  It is also worth asking the larger questions of why ROL programs are proliferating and who they serve, not simply whether they are “effective” or just not doing it right.  In any event, some fun holiday reading.