International Law

[Hosnon]

To boil down a very complex topic: What is its use? Is it merely a discouragement to certain activity by states? Is it some form of natural law that must be followed? What is it good for?

[Fredda Weinberg]

1. It's a set of international treaties and nothing is universal

But it has allowed international commerce to flourish.

[Hosnon]

2. But the internal laws of nations, at times, become part of international law.

And, yes, I agree, very little is universal (except that sentence...for the strict logician types).

So is international law's basic and primary use to encourage international commerce?

[Fredda Weinberg]

4. And it has always been thus. n/t

[Hosnon]

5. So international law is basically the outcome of a battle of interests?

And nothing more?

(I believe so)

[Fredda Weinberg]

11. It's not much of a battle, more like protecting private interests

When studying the subject, we were encouraged to think of nation/states as individual actors with interests to protect. In reality, of course, it's a segment of society, but you need a level of affluence to even care about international affairs. Unless it's ending a war or a colonial relationship, the overwhelming body of international law deals with trade issues.

[Hosnon]

12. In what capacity did you study the subject? (nt)

[Fredda Weinberg]

14. I have dual BA's in economics and poli sci n/t

[Hosnon]

17. Very nice.

I got my J.D. with an emphasis on International Law (studied in Paris). I now view the law in a very economic way (Judge Posner is influential to me).

I wish I had taken more economics courses, though.

[Fredda Weinberg]

20. My brother is the lawyer in the family but is more idealistic

I tend to agree with you.

[Hosnon]

23. I began the pursuit extremely idealistic (natural law and the like)

but, the facts on the ground seem to demand that one's views change accordingly.

Very little beyond mathematics is axiomatic. Judgment (i.e., the ability to process many, many variables) is necessary.

[Fredda Weinberg]

34. And when you go really deep into the equations, they blow up as well

You could have knocked me over with a feather when I learned that you had to adjust Newton's laws for bodies moving at velocities close to the speed of sound ... but that's reality.

Even A=A doesn't mean what you think it does when the variables represent matrices.

But I don't think you have to be cynical to intepret history properly - the trends are long and progress slow, but humanity is recognizing itself. Nationality is just one level of that awareness ... who knows, we may see a different configuration when China and India reach true first world status.

[Hosnon]

39. 'Tis true.

My B.A. was in Philosophy and I took a few mathematical courses.

I don't view it as cynicism, perhaps pragmatism?

[Fredda Weinberg]

50. Cynics see $$$ behind every motivation

And while I agree that "money makes the world go around", I have come across enough exceptions to maintain my personal faith. But not, unfortunately, when studying international law, so in that case, we can agree - call it pragmatism.

[Hosnon]

51. I would counter that realists see money behind every motivation.

Actually, I expect it and plan accordingly.

[nadinbrzezinski]

52. Or power

or both....

[Hosnon]

54. Money is a means to power, in my determination. (nt)

[nadinbrzezinski]

56. And you are correct nt

[Hosnon]

57. Well.

Shall we close the book on the night and say we are all friggin brilliant? I say so...perhaps:)

[nadinbrzezinski]

58. Ok and once again, thanks for the discusion

damn it reminded me of my graduate seminars, damn I miss those

And got the cobwebs off...

[Hosnon]

60. I recently figured out that I am talking to the same person, so, disgregard

the "finished conversation" thingie.

I've been drinking...the whole bar exam thing and I have no work tomorrow...

[The Inquisitive]

3. they're just mutual agreements between states

International law is sort of a poor term in my opinion as a only a state can create a law by definition, and only a state can enforce law. All laws are binding. However a state is still within its own legal rights to withdraw from international law. If they cannot than soverignity a completely dead concept. Which means that it would just be stupid for human to organize themselves politically in terms of nation states. A lot of what I said is up for grabs, and should be elaborated upon, but I am le tired.

[Hosnon]

7. Sovereignty is an extremely new concept.

At least as it relates to the nation-state.

But why are all laws binding? What does that actually mean?

[Fredda Weinberg]

18. When emperors stopped getting authority from the church, something

had to take its place, so the modern nation/state was born. The transition's not complete ... we retain symbols that tie us back to that past.

International law deals with the relations between sovereign states, since none can be compelled to act against their own interests.

[The Inquisitive]

22. Treaty of Westphalia

is when it was legally established I believe, 1659 was it?

Laws are binding because they are the will of the state and the state is the ultimate political authority that theoretically doesn't have to answer to anyone else, it can only be coerced. A state must encompass an amount of territory it can exert authority to really be a state. In those lands since there is no higher authority than the state it has the final word, and whatever the state decides is final.

This however only applies within the territory controlled by the state. Meaning all nonstate actors within the states territory, whatever, or whoever they maybe, are bound to those laws, and must follow those laws. A state exert a law over another state, they can only coerce, or cooperate with each other.

[Hosnon]

28. I believe so as well!

Not sure about the date, though.

And I believe you hit the mark by mentioning coercion. To me, that is the essence of law and legal legitimacy.

[nadinbrzezinski]

40. And in modern terms it has to be recognized

as a state actor by another state actor

It can be de-facto (why internal groups in civil wars try to get this recognition)

Or de-jure... few and far between

[MonkeyFunk]

6. It has little real meaning

no country will abide by any external law if it doesn't suit their interest.

And there's nobody to enforce it.

[Hosnon]

8. MF, if I am not mistaken,

you are an attorney, correct?

I view international law as game theory, that is, everyone is out for their own interests but it may be in an individual state's interest to agree to certain rules (cf., Locke).

[MonkeyFunk]

9. Gosh no, I'm not an attorney

and I've never represented myself as one.

[Hosnon]

10. Hmm...where did I get that?

Who knows...:)

[MonkeyFunk]

13. I do tend to get involved

in threads regarding legal issues, but only as an amateur. I certainly have never claimed to be a lawyer.

[Hosnon]

15. I guess that's it.

I get my bar results next Friday...

mrphf

[MonkeyFunk]

16. No kidding?

Best of luck!!! Please let me know how you do!

[Hosnon]

19. Well, there will either be a happy thread or a very, very, very sad thread.

I probably passed but that really doesn't help much.

[MonkeyFunk]

24. Keep good thoughts

Congratulations on reaching that milestone. I look forward to hearing that you passed.

[Hosnon]

26. Thanks!

It's rough. So many people, including my wife, keep assuming I passed. And, really, that doesn't help. Only my dad (an attorney) has told me that assuming I failed, everything will be OK.

[Fredda Weinberg]

21. Bon chance! n/t

[Hosnon]

25. Merci!

The instruction was in English. I spent 6 weeks in Paris without speaking a word of French. It was difficult but fun!

Plus, I got engaged!

[nadinbrzezinski]

27. Good luck

[Hosnon]

29. Thank you!

As the days before my results decrease, my anxiety and desire to imbibe increase! Haha.

[nadinbrzezinski]

31. Understood

[Hosnon]

33. I assume...

(Perhaps incorrectly) that you have been in my position?

[nadinbrzezinski]

38. Partly, not for the law degree

but my last tests of my MA was nerve wracking

Then came the thesis committee for the MA

The week the committee had to sign it, it was nerve wracking indeed

[nadinbrzezinski]

30. To boil down a doctoral thesis

it is essentially a set of treaties and agreements that state actors have agreed benefit everybody and are good for everybody.

It is useful when all agree

It is worth the ink and paper when a state actor, especially a powerful one, decides to ignore it and the rest don't bring this one down to size

Essentially it could be summarized as a zero sum game

If there are real consequences, state actors tend to behave, if there are no consequences, well it gets ugly

[Hosnon]

32. A zero sum game? Really?

I think it involves game theory more than the concept of a zero sum game. One state's loss is not, by necessity, another state's gain; both may gain or lose.

What was your doctoral thesis?

[Fredda Weinberg]

35. I agree with you ... but see my tagline n/t

[Hosnon]

37. Ah...well that pretty much sums it up. (nt)

[nadinbrzezinski]

36. I didn't do a doctoral thesis but it would require one

I took a course on the subject and my prof, a student of Boyle, concluded the course with that.

he said that it works when state actors believe it beneifts them

They don't when it doesn't

Why he called it a zero sum

And if you look at the behavior of rogue states, (I'd argue the US at the present), it does not benefit us, or the people in charge, so we don't follow those aspects that don't beneift us... and who will bring us to yield?

He argued the first thing to go in rogue states are human right codes

[Hosnon]

41. Certainly.

The most easily expendable thing for any nation seems to be human rights. After all, national security does trump everything (and I say that without sarcasm; the Constitution is not a suicide pact).

It comes down to a matter of when a population agrees that such rights should be reduced in order to protect the whole. Unfortunately, the Bush Administration has deemed our time to be such a time...which it clearly is not.

I in no way diminish the loss of life on 9 September 2001 but preventing the same does not outweigh the rights of this nation.

[nadinbrzezinski]

43. And there lies the crux of the matter

under International Law preemptive war is against the UN convention, yet it is now American Policy

Under International law torture is verboten (and for good reason, nobody gets any usable intel out of it), but under American law it is now accepted

That is what that professor meant about zero sum

We can afford to be moral and that happy horse when it fits our interests, but when it does not...

And this was over 20 years ago, talk about cynicism

Now personally the Bill of Rights actually guarantees the safety of this nation... but that is a whole different discussion.

Then again.. human rights, shmynan rights, these are so new in human history, its not even funny... and the first time any of these started to be formalized was under the laws of land warfare and Just War Principles, going back to the 16th century... in the history of humanity, that is a virtual sneeze.

:-)

Oh and thanks for the discussion, hard to speak of these subjects really

[Hosnon]

44. Well, not to diverge from the subject of International Law

United States law (i.e, the Constitution) does not prohibit preemptive war. And, arguably, neither does the U.N. Charter.

Both documents probably recognize that a nation need not wait until an amassing army actually invade its territory. And if either does, I believe they should be changed.

Preventative war, on the other hand, is a different matter.

[nadinbrzezinski]

45. Actually the UN Charter has a prohibition against it

the reason: Germany in the 1930s and 1940s

In fact planning agressive war was one of the indictments of Nuremberg, one of the four indictments.

Now preventative war, where you have proof that you are going to be attacked (Israel 1967) is kosher, even if frowned upon, not that you will be able to prevent that.. we have had a couple others of those... including the famous soccer war of 1971 in C.A... not that many know that one (Piece of trivia for you, last time an F-4U Corsair flew a combat mission in wartime)

If you have the evidence that the other bastid is bout to attack you, you should

And definitely the right for self defense is enshrined in art 51 of the UN Conventions

No, this does not mean nations automatically go to war when one attacks the other... example... Mexico and Guatemala in 1985

I took that course since I was a Red Cross Medic... something bout Geneva

:-)

All the rest was just fun....

[Hosnon]

46. I always get the two terms confused.

Which is not good, haha.

Article 51, which is part of our Constitution via the Treaty Clause, is our law. And self defense dictates that we need not wait until we are attacked to act (the Webster Doctrine, I believe).

The difference actually comes down to a matter of degree, as most things. At one end, we have invasion. And the U.N. Charter, in such circumstances, permits defensive action. At the other end, we have no aggression. In between is where the meat is.

Bush pushed it further than perhaps previously understood. But, to his credit, he used a viable doctrine. In the end, the constitutions of nations and the U.N. Charter should be extremely specific about when aggressive action is appropriate.

To me, it is somewhere between defending against actions that will negatively affect our national security and defending our physical borders.

Edit: Damn I hate fucking b.s. spelling shit, and syntax...damn OCD.

[nadinbrzezinski]

47. Well Afghanistan fell strictly under article 51

strictly... why? The Taliban did not surrender and were protecting OBL and were the government... even if only the Pakis recognized them... (aka they were a state actor).

Iraq... the casus belli strictly were WMDs, once those WMDs were not found, the Casus Belli for that preventative war is gone

That is why, in my view, it falls under agressive war... not good.

Add to that the 1998 letter of intent by the principals of PNAC and even Wolfowitz intent to change the doctrine to preemtive in 1992 as under secretary of defense under Chenney, and I can make a case that this was war ilegal and planned well before they took office... remember Nuremberg?

Even if... here is the big if... they have the legal fig leaves to cover themselves

(IWR resolution and the UN Security Resolution, even if they were suposed to go back to the UN for authorization)

Of course we are getting a tad too legal for some folks, but that's ok.

:-)

I had to teach the strict basics to cadets, of humanitarian law, so just law never entered it...

;-)

[Hosnon]

48. Well, Afghanistan did not fall under that category.

We pulled a diplomatic trick. The Taliban was never recognized as the government of the country by the U.S.

So, we recognized the Northern Alliance as the actual government. Then, they asked us to invade to expel the Taliban. Under international law, we were A OK.

And, I'm more of a moderate DUer and I, don't crucify me, think that we should have been in Afghanistan and Afghanistan alone.

And, yeah, the IWR puts a HUGE damper on the anti-Iraqi-invasion crowd. Our Congress, thanks to US, let me repeat, US, authorized "necessary" action. Anyone that knows anything about legal mumbo jumbo knows that the two most awesome words in the legal vernacular are "necessary" and "appropriate". They are extremely subjective. (One main reason why the "Necessary and Proper Clause" was not included in the Articles of Confederation.)

I try to remain judicious...but they have used that up. Even under a strict standard of the Webster Doctrine, the Bush Administration is wrong.

[nadinbrzezinski]

49. Pakistan recognized the Taliban

you only need one recognized state to get that legitimacy

We didn't need to. But teh Northern Alliance was just gravy.

As is, since they were giving aid and confort and were unwilling to turn OBL over (what would happen if they had)

But essentially we agree

We should have gone into Afghanistan, and finished the job... and rebuilt the country that we (and the rest of the west) abandoned in 1991

And yes, the IWR is the legal fig leave beucase of the language used.

Why the iraqi war, under the strictest of terms, is legal.

Now as I said the casus belli was WMDs, they never materialized and that placed that legality in limbo

And they are wrong, we agree

:-)

Amazing... this is why when people scream the war is ilegal I shake my head

It is not strictly, but it was ill advised and I could prove that it was planned years ago... just as Iran (our comming war) is also an agressive war... and since george has hinted at the use of nukes, the issue of proportionality is off the window

Never mind that right now we may argue it is non existent or slightly existent

:-)

Oh and the other one that makes me laugh... but, but you cannot shoot at an ambulance,

Correct, unless that ambulance has lost its claims to any neutrality, which is so damn easy to do

Hell we did once... damn those two kids had me screaming at them after the mess was over. But the fire I took... was legal... under International Law...

[Hosnon]

53. One recognition does not mean a "state" is a state.

Pakistan was the only country to recognize the Taliban. And it takes more than one to gain legitimacy. But yes, essentially, we agree. And, shhh...such things can only be said late at night on DU.

And, yeah, the Iraq war is about as legal is it gets. But "legal" means little, in reality. It's just a term that means: "some type of force will make you conform".

[nadinbrzezinski]

55. Ah yes Clausewitz

War is the purusit of politics by other means

:-)

It sumarizes it, doesn't it?

[Hosnon]

59. To use a DU cliche:

We have a winner...

Fuck it, kill me now for saying that.

But yes, war is merely a failure to agree when the lack of agreement necessarily leads to aggression.

No pie in heaven here...

[Hosnon]

61. Quit jumping around. THIS is our subthread.

So does it only make sense to us or do many DUers refuse to accept reality (or do they not know)?

[nadinbrzezinski]

62. This is a subject taht is even more academic

and dry to most people than just history...

That is why

[Hosnon]

63. That, to me, is where our judgment comes into play.

Much of it is academic...many things are academic...they start axiomatically.

But we have the ability (not God-given or anything like that) to figure out the "right" answer.

That's what I live for...I guess it's Empiricism and Act Utilitarianism...

[nadinbrzezinski]

64. Yes but most folks see these subjects and they just RUN

look at this thread,

How many people have chosen to have this discusion?

And every so often we have discusions on the legality of the war.... and it is hard to get into those discusions

The law, any branch, requires a head, not a heart... once you get emotion in things stop working

And the few discusions I have seen.... devolve into brawls

[Hosnon]

65. I agree. I am of the type that keeps such discussions in the realm of the A.M.

Otherwise, I'll fight about not being a bigot or sexist. But I have had a few GREAT conversations. Most notably:

http://journals.democraticunderground.com/MJDuncan1982/3

[TreasonousBastard]

42. I always thought of it as an evolution of...

bringing order to trade and other interests. My job, btw, for almost 20 years was insuring ships and cargos, so maritime and international law were always around me. As far as I know, the first recorded incidences of insurance and admiralty law were with the ancient Phoenicians when they invented something we now know as General Average. It's been developing and playing with these concepts ever since.

Treaties are the codification of international law, but there have been customs and informal agreements for years that nations abided by, and that have often been incorporated in local law. For many years we had Admiralty courts, and they often looked to British court decisions for guidance, particularly in the early years. Treaties, of course, were considered important enough at the founding of the country to be mentioed specifically in the Constitution.

Things like the Warsaw Convention, Law of the Sea Treaty, Geneva Conventions and others exist to bring order without war, or during war. Even the hated (around here) WTO exists primarily to level trade differences and bring a forum for international disputes.