Author Archive for
Seth Weinberger

Good News for the New Year!

by Seth Weinberger

Hope everyone had a happy new year! As we move into 2006, it seems a good time to reflect a bit on where we’ve been the last few years. A new report from the Human Security Centre at the University of British Columbia has been released that deals with a new concept in international relations theory known as “human security.” As the Human Security Report details, in contrast to traditional understandings of national and international security, which focus on the security of states and the prevention of large-scale inter-state war, “human security is about protecting individuals and communities from any form of political violence.” There are two main frames for human security: A narrow one, articulated in the Report, which focuses on “violent threats to individuals, while recognizing that these threats are strongly associated with poverty, lack of state capacity and various forms of socio-economic and political inequity” and a broader one, preferred by the UN, which “argues that the threat agenda should be broadened to include hunger, disease and natural disasters because these kill far more people than war, genocide and terrorism combined.” Human security is a controverisal concept, as traditional IR scholars believe it detracts conceptually and in policy matters from more relevant and dangerous security threats.

Nonetheless, the Report has some very interesting findings about the state of international security. Namely, that the world is becoming, year by year, more peaceful and less bloody. The number of armed conflicts around the globe has dropped by almost 50% since 1992, when 50 wars raged world-wide. 100,000 people died in those wars (and 340,000 died in 1972), but only 20,000 died in armed conflicts in 2002. Military coups are disappearing, down to 10 failed coups in 2004 from 25 in 1963. Terrorism is the one form of international violence on the rise, growing from 17 incidents in 1987 to 175 in 2003 and 651 in 2004. However, even as the number of terrorist attacks rise, the death toll — an average of 1,000 people a year over the last 30 years — is but a small fraction of the cost of large-scale war.

Why the decline in violence? The Report identifies four main reasons: the spread of democracy, an increase in economic interdependence, a decline in the economic utility of war (that is, modern economies are no longer fueled by raw materials and territory, and thus war has become less profitable), and the growth of international institutions and international law, that have produced a ideational shift away from the use of violence as a tool of statecraft. The report concludes that “the best explanation for this decline is the huge upsurge of conflict prevention, resolution and peacebuilding activities that were spearheaded by the United Nations in the aftermath of the Cold War.Of course, the end of the Cold War, in which the US and the USSR fought “proxy wars” across the globe is cited as well. I have no doubt that these factors have been critical in the reduction of interstate violence.

However, I also have a hunch that these factors are intervening variables that hint at a more important and fundamental cause of increasing international peace: US hegemony. It is US hegemony that allowed NATO to cement the democratic status of the former Soviet satellites in Eastern Europe, US hegemony that allows the EU, Japan, and other democracies to focus on economic expansion rather than military spending, US hegemony and its attendant military supremacy that has made large scale conflict almost unthinkable, and US hegemony that allows the UN and other international bodies the space to operate and build functioning legal institutions. It is hard to imagine any of these things occurring in a multi-polar, or even a bi-polar, world in which traditional security problems would likely dominate national agendas. The US, in essence, provides the monopoly of force that any government needs to enforce its laws. Of course, the US is not answerable to the UN, nor does it always act in the interests of international law. The system is not perfect. But in the absence of that hegemony, I believe international law would be even more enfeebled than it is today. Before criticizing US hegemony for blocking or undermining the spread of international law, ask yourself: Where would international law be without it?

Human Rights and International Law

by Seth Weinberger

Today’s New York Times has an interesting piece on the promotion of human/women’s rights in Africa and the tension between such rights and local custom. This is an excellent illustration of the central problem with international law (at least from a political science perspective). As I have discussed in several other posts here, the critical tension is between sovereign equality of states and the creation of strong, enforceable law. As the Times article makes clear, international legal standards, especially in an area like human rights, often runs counter to local practice, tradition, and custom in the developing worlds. For example, the rights of women to hold property or the practice of female genital cutting (both mentioned in the article) seem to be clear violations of internationally accepted norms.

In order for international law to be successful, it will have to challenge and likely make illegal many such practices. This is a problem for those believers in cultural relativism, or opponents of western “cultural imperialism.” In my experience, many supporters of broadening the breadth and scope of international law into domestic jursidictions like women’s rights are hesitant to acknowledge that doing so requires judging other cultures and declaring their traditions barbaric and illegal. This problem is compounded when international law seems to coincide with western standards for human rights or the treatment of women.

So, I’ll pose a question to all of you international lawyers out there: How can this problem be resolved? And this is not a rhetorical question. If law is to flourish, it must make judgments about right and wrong. On the other hand, if we are to protect the diversity of other cultures and prevent or slow the spread of western values, then the international community must promote sovereignty instead of law. Are you willing to promote the law at the expense of cultural diversity? Personally, I would be, although I can see few international mechanisms by which such decisions could be made. How can the international community agree on standards that violate the sovereign right of nations and peoples to govern themselves?

Unwarranted Surveillance and Standing

by Seth Weinberger

Over at the Exploring International Law blog, run by Anthony Arend (a former professor of mine at Georgetown), is an excellent post on the question of how any suits regarding warrantless NSA surveillance might reach the courts. I’m sure my colleagues here at Opinio Juris are much more qualified and capable of addressing this question than am I, but from a political perspective, it seems that this is a important issue. While Julian and I may disagree as to the legality of the spying, I do tend to agree with Tony that it’s very unlikely that this will be decided in the courts soon (although the New York Times reports that several men accused of ties to al Qaeda will challenge the legality of the surveillance) . Rather, it will take a political confrontation between Congress and the administration to settle whether or not the president does indeed have sufficient authority to conduct such a surveillance campaign without the explicit authorization from Congress.

I am no conspiracy theorist. I do not think that Bush and Cheney cooked up this scheme to seize power and spy on average everyday Americans or to subvert this country into their own private fiefdom. However, I do believe in the limitation of the power of government. And in this “war” in particular, specifically one that has no metrics for victory and no imaginable end, it seems that we need to be especially careful when we give the president unusual powers to conduct secret operations on American soil. It is hard to envision feckless congressmen mustering the political courage to challenge the president on this in the face of charges like “unpatriotic” and “soft on terror.” This is why, in my mind, it is so important to keep the domestic use of executive power on a tight legislative leash.

Domestic Spying and Executive Power Redux

by Seth Weinberger

In an earlier post, I wrote that the language of the 2001 resolution authorizing President Bush to use force against al Qaeda and international terrorism did not specifically cede power over the domestic arena. Thus, the use of the NSA to monitor the conversations of US citizens in this country without going through the FISA courts was likely both illegal and unconstitutional and could certainly not be justified under Senate Joint Resolution 23.

It turns out that the Bush Administration must have been aware of this problem, as it asked Congress to specifically grant power to prosecute the war on terror domestically. In an op-ed in today’s Washington Post, former Senator Tom Daschle (who was Senate Majority leader during 9/11 and the passage of SJR 23) writes that “minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text.” If Daschle’s accout is accurate, this is a clear indication that the Bush Administration believed that the resolution as drafted was too narrow for its purposes and would not permit domestic activity, such as intelligence operations against US citizens.

In a concurring opinion to Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson wrote that the ability of the president to expand his powers depended on the relationship between the desired action and Congress. When Congress has authorized the president to act, the president stands on the most firm legal and constitutional ground. If Congress has been silent, the president has a good case for action, and the question becomes more of a political one. But when Congress has expressly denied the president a particular power, any action to assume that power is highly suspect. Given that the Bush Administration asked for the ability to prosecute the war on terror domestically and was rebuffed, it seems that the question of use of the National Security Agency to spy on US citizens domestically falls into the third category. I am now even more convinced that, as I concluded in the first post on this matter, that this action by President Bush was both illegal and unconstitutional.

UN Reform and the Future of International Law

by Seth Weinberger

In yesterday’s New York Times, we find an article in which UN Secretary-General Kofi Annan bemoans the difficult year the UN has had in 2005. In particular, Annan gripes about the difficulties in creating a new Human Rights Council that will not have to seat notorious human rights violators like Sudan, the grueling ordeal of the oil-for-food scandal, and the problems the UN is having in passing its budget. Relatedly, in today’s Times, we read that while talks between the EU-3 and Iran about Iran’s nuclear program are resuming, there is little hope for significant progress. The main obstacles here are the resistance of Russia and China to referring the matter to the UN Security Council and, of course, Iran’s insistence on its right to develop an indigenous nuclear program that includes enrichment technology.

The common thread, and the largest problem in the development of meaningful and effective international law, is the problem of sovereignty. The UN was created in the aftermath of World War II with two main purposes: the prevention of large-scale inter-state conflict and the protection and promotion of state sovereignty (especially in the wake of the demise of the European colonial powers). Now, however, the purpose of the UN is changing. Inter-state war is no longer perceived as the primary threat to international security, in a large part due to the overwhelming dominance of American military and political hegemony. “Human security” issues like human rights and the prevention of genocide have risen on the security hierarchy, and the “hard” security issues that do exist, like terrorism or proliferation, have a much larger intra-state dimension to them. The problem is that the UN is not well suited to dealing with internal issues. If Russia and China refuse to allow the IAEA to refer Iran to the Security Council, the UN will be unable to act. If enough developing countries resist making membership on UN committees like the Human Rights Council contingent on meeting certain standards (and it’s also likely that Russia and China would object as well), the UN will be unable to act.

What can be done to make international law more credible, enforceable, and relevant? In the short- to near-future, it’s almost impossible to imagine any serious reform transforming the UN into a body capable of handling these kind of issues. While some people may dream of a truly international body that can enforce international law, perhaps it may be time to give that dream up. International law is at its best when it works through inducements (like the WTO) rather than coercion (like UN sanctions). Yes, the WTO has a punishment mechanism, but it really works by promoting cooperation in order to obtain long-term benefits of free trade and open markets. The UN has little to offer countries in order to get compliance on thorny and truly important issues, like nuclear proliferation or genocide. Inducements work best between like-minded countries that see common ground in their national interests. So, perhaps the international system should become bifurcated. The UN can continue to deal with the global issues at which it actually does reasonably well, such as the WHO or UNICEF, and could remain as a global forum to provide peacekeeping and prevent interstate war. Those countries interested in expanding the scope and power of international law could set up their own organization, like the EU, WTO, or NATO, in which sovereignty is curtailed to a greater degree and members gain serious benefits as a payment for cooperation. Of course, this is exceedingly unlikely, but I just don’t ever see the UN, hobbled by sovereignty and vetoes, as being effective.

Update on Syria

by Seth Weinberger

In yesterday’s Washington Post, we find an article in which Detlev Mehlis, the chief UN investigator into the murder of Rafik al-Hariri, actually accuses Syria of direct involvement in the assassination, as well as linking Syria to the murder of Gibran Tueni. While we can only sit and wait for the UN to release its evidence, let’s hope that what has been gathered is so damning that Russia, China, and Algeria will have no hope but to support punishment. I’m skeptical…but slightly hopeful that the UN will actually be able to do something in a case so apparently obvious as this one. If not, however, watch out….

Declaring War and Executive Power

by Seth Weinberger

In the run-up to the invasion of Iraq, I published an op-ed in the Detroit News (8/28/02; the page is no longer available on the paper’s web site, but if you want to see it, email me and I’ll send it to you) arguing that the president did not need Congressional authorization to deploy troops for the invasion. My claim was that over time, as a result of precedent and Supreme Court rulings, Congress had effectively ceded the power to command troops to the president. However, Congressial war powers are still very important, and take two distinct forms. One is the power of the purse: If Congress is truly opposed to the use of force, they can cut off funding. Second, a formal declaration of war is essential if the president wants to mobilize or use the domestic arena in pursuit of the military objective. For example, during the Korean War, President Truman wanted to seize a steel mill that had been shut down by a strike, arguing that it was a critical part of the war effort. The Supreme Court, in Youngstown Sheet & Tube Co. v. Sawyer (United States Supreme Court, 1952), declared the seizure unconstitutional, as it was an executive order that infringed on an individual’s status, and therefore was legislative in nature. In his opinion for the court, Justice Black wrote that although the President is Commander-in-Chief, this role does not carry over into the domestic arena, but applies only to the actual prosecution of the hostilities. Therefore, if the president, in the course of prosecuting a conflict, needs to seize an industry, establish rationing patterns or special production schedules, or suspend the writ of habeas corpus, he must have a declaration of war from Congress. I concluded the piece by arguing that while the president could invade Iraq without a declaration of war, he might not want to, as the very nature of the war made it likely that he would in fact want to operate in the domestic arena.

Today, we learn from the New York Times that President Bush secretly authorized the NSA to spy on Americans without a warrant, using the September 2001 resolution that authorized the president to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the 9/11 attacks. However, this is not a declaration of war. And, in particular, it lacks the crucial language that modern delcarations of war have contained, which states that “all of the resources of the country are hereby pledged by the Congress of the United States.” This language is present in the declarations for WWI and II. It is a recognition by Congress that total war is in fact total, and may require the president to act domestically in a legislative manner.

Absent such language in a formal declaration of war, I highly doubt that the president’s authorization of domestic spying is legal. And legal or not, it is certainly troubling. Especially in a war that has few metrics for victory (and I refer here to the war on terror, not the war in Iraq), it seems imperative that the president’s power to do things like this be controlled by Congress.

The Noble Lie and International Politics

by Seth Weinberger

In the December 19th issue of the New Yorker, Orhan Pamuk (one of my favorite writers, the author of Snow and My Name is Red) has a fascinating piece about his impending trial in Turkey for insulting “Turkish identity” by discussing the Armenian genocide following World War I. Pamuk discusses his confusion at why a state like Turkey that is having so much trouble convincing the EU that it is sufficiently “Western” and “European” to merit membership would be pursuing such a troubling course of action. From an IR perspective, the answer is something along the lines of the limitations that law has to compel or induce states on issues of critical national importance. But, why would this issue, which is certainly not controversial to or disputed by most historians, constitute a sufficiently important issue that Turkey would be willing to jeopardize its EU accession talks? I’m reminded of the noble lie in Plato’s Republic, in which it is acknowledged that all states have their origins in brutality and blood, and therefore all states create national myths about their foundings that obscure those origins. These lies, while repugnant, may be necessary in the eyes of states for maintaining national identity and patriotism. So, international institutions may be limited in their ability to affect Turkish behavior on this issue. We can only hope, as does Pamuk, that the Turkish judge feels differently.

Enforcing Law and Punishing Syria, Part 2

by Seth Weinberger

Unsurprisingly, and as I suspected, the UN is having difficulty maintaining its focus in the investigation into Syrian involvement in the assassination of Lebanese former Prime Minister Rafik al-Hariri. And, while the investigation has been extended by six months, several members of the Security Council, including Russia, China (both with veto power) and Algeria, have resisted calls to accuse Syria of uncooperative behavior and to pressure Syria towards greater cooperation with the probe. This points out a serious problem for the UN specifically, and the prospects of international law more generally, (which I’ll address in more detail tomorrow when I get a break from grading final exams) namely the tension between the sovereign equality of states and the need to enforce law and punish violators. Until the UN resolves this tension (which I don’t think is likely), it’s ability to uphold international law will be limited, at best.

Enforcing the Law and Punishing Syria

by Seth Weinberger

Lots of news today regarding the involvement of Syria in Lebanese politics and specifically the assassination of former Lebanese Prime Minister Rafik a-Hariri. On the same day that the UN annouced that it has new evidence of Syrian involvement in the assassination and accused Syria of obstructing the investigation, a car bomb exploded in Beirut , killing a prominent anti-Syrian legislatorGebran Tueni (suspicious, no?).

Now, while we haven’t seen the complete results of the UN investigation into Hariri’s death, nor do we know whether Syria will be implicated in today’s bombing, let’s assume that Syria is eventually determined to be complicit, if not responsible, for both acts. Here is an excellent test of whether the UN is willing and able to enforce its own laws. Assassination of the political leaders of another state is, short of naked aggression, about the most clearly illegal act one state can take (leaving aside the question Julian considers here of targeted killings/assassinations during times of war). Will the UN punish Syria? Will Russia accept the evidence and judgment against its former client and refrain from vetoing any sanctions? My guess is that international opinion and pressure will be so overwhelming that Russia will go along with any punishment against the Syrian state, but that the punishment will be sadly weak. Sanctions are a fairly inefficient tool of statecraft, have little effect (link is to the JSTOR database; subscription required), and typically punish the civilian population more than political leadership (I’ll consider the problem of sanctions in a post later this week). So, for those of you who have faith in the UN and international law, how do you see this playing out? Will the UN be able to punish Syria sufficiently, and what form will that punishment take?

Nobel Prizes and Power: The UN, International Law, and Hegemony, Part 2

by Seth Weinberger

As IAEA chief Mohamed ElBaradei is about to receive the Nobel Prize at the same time as he announces that the international community is losing patience with Iran’s intransigence over its nuclear program, I’m prompted to continue thinking about the relationship between international law and US power. Now, it’s true that the IAEA has had numerous successful instances of preventing nuclear proliferation. However, one has to distinguish between the easy cases, where states would prefer not to proliferate but feel pressured by the security dilemma to do so, and the hard ones, where states really do want nuclear weapons. Getting Brazil and Argentina to step back from their nuclear arms race, or convincing Ukraine and Kazakhstan to return their newly acquired nukes to Russia, while admirable and important efforts, are not the same as preventing an aggressive rogue state from proliferating. When the chips are down, as with Iraq (before the invasion), Iran, and North Korea, the IAEA’s effort has been less than stellar.

There is a good chance that matters with Iran will come to a head. If Iran continues to refuse to give up its “right” to uranium enrichment and refuses the recent proposal to use fissile material enriched in Russia, what will the IAEA and the international community do? Will it be capable of enforcing its own rules and regulations and slap sanctions on a country that violates its clear commitments and duties under the Nuclear Non-Proliferation Treaty? The institutional structure of the UN means that any and all punitive actions to be imposed by the IAEA have to go through the Security Council where it subject to veto by, in this case, Russia. Even if sanctions are imposed, will the UN be able to keep them in place? As the oil-for-food scandal makes clear, sanctions create a powerful moral hazard by raising the price of goods and creating the opportunity for huge profits, encouraging defection and cheating.

Regardless of whether you agree with the logic of the invasion of Iraq, there is an important lesson there that is relevant to the problem of Iran. If the UN is unwilling or incapable of enforcing its own rules and international law, the US as global hegemon and police enforcer may take matters into its own hands. Iraq is not the only pertinent example: the NATO bombing of Serbia to protect the Kosovars is another example of the US (in cooperation with other actors) picking up the slack where the UN was incapable of living up to its ideals and laws. As I mentioned in part 1 of this post, hegemony and the willingness to use power outside of the framework of international law may be necessary for those laws to be enforced. If you don’t think that the US should use force to enforce international law, how else can the law be respected?

Pinochet and Precedent

by Seth Weinberger

A Chilean court has just stripped former dictator Augusto Pinochet of his immunity so that he may face human rights charges in the disappearances of 29 people. While this may be a good decision from the perspective of retributive justice (see my earlier post on this), it has some troubling implications for international politics. Not the least of which is the possibility of undermining the likelihood of striking bargains in order to secure the ceding of power by dictators in other countries in the future. Dictators who believe that they will face prosecution and punishment are much less likely to step down and allow a peaceful transtition than are dictators who believe they will enjoy a cushy life in exile, or at least the chance to live out their dotage without being dragged into the dock. Now, while it may be evident to all that Pinochet deserves to be punished for his crimes, is that worth perhaps prolonging the rule of other brutes in other countries?