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jmm99
12-31-2008, 02:48 AM
The Jan-Feb 2009 issue of Foreign Affairs has an excellent article by Michael Chertoff, The Responsibility to Contain: Protecting Sovereignty Under International Law, which you will find here (http://www.foreignaffairs.org/20090101faessay88109/michael-chertoff/the-responsibility-to-contain.html). This is a policy article, not a technical I Law thesis.

The primary issue which Chertoff addresses is this one:


SOVEREIGNTY RECIPROCATED

What should the international community do when global threats originate entirely within a state that does not consent to reciprocal international security obligations? This can occur when, for example, a nation fails to enact adequate domestic security measures or is simply unable to control terrorists or other criminals within a particular region. These situations present truly hard cases because they place the international community's security interests in conflict with a nation's right to control its internal matters. But states can no longer refuse to act by hiding behind seventeenth-century concepts of sovereignty in a world of twenty-first-century dangers. International law should not be powerless to prevent deadly nonstate threats from spreading from one state to others. If it is, the sovereignty of all nations will be sacrificed to preserve the sovereignty of one.

Therefore, international law must be updated to reflect the reciprocal nature of sovereignty in the modern era. .....

The challenge is to adapt I Law to deal with "white spaces" (ungoverned areas), which harbor bad guys - and the right to employ Article 51 to root them out. Obviously, the issues raised in this article are relevant to Astan, Pashtunistan and Pakistan - as well as Somalia, etc., etc.

Chertoff does have a background in I Law (with the Latham law firm) - see bios here (http://en.wikipedia.org/wiki/Michael_Chertoff), here (http://en.wikipedia.org/wiki/Latham_%26_Watkins) and here (http://www.lw.com/AboutLatham.aspx?page=About). Also he is a Harvard Law grad. :(

I'd be interested in comments from non-lawyers on Chertoff's proposals.

120mm
12-31-2008, 11:26 AM
If a nation is being used as a safe haven by criminals/insurgents and those criminals/insurgents conduct ops in a second nation, then the original nation is either hosting those criminals/insurgents and it is an act of war, or they lack the ability to enforce their own sovereignty and therefore lack sovereignty.

Either way, other nations shouldn't feel compelled to respect that safe haven nation's sovereignty.

I've never had a moral/principled issue with attacking insurgents/criminals in another nation's territory, provided those insurgents/criminals are damaging the attacking nation.

Of course, there are pragmatic issues involved that need consideration.

Cavguy
12-31-2008, 04:20 PM
If a nation is being used as a safe haven by criminals/insurgents and those criminals/insurgents conduct ops in a second nation, then the original nation is either hosting those criminals/insurgents and it is an act of war, or they lack the ability to enforce their own sovereignty and therefore lack sovereignty.

Either way, other nations shouldn't feel compelled to respect that safe haven nation's sovereignty.

I've never had a moral/principled issue with attacking insurgents/criminals in another nation's territory, provided those insurgents/criminals are damaging the attacking nation.

Of course, there are pragmatic issues involved that need consideration.

Given the above, what is your opinion of this (http://www.mccaffreyassociates.com/pdfs/Mexico_AAR_-_December_2008.pdf)? GEN McCafferty is hardly an anti-US source.


Mexican law enforcement authorities and soldiers face heavily armed drug gangs with high-powered military automatic weapons. Perhaps 90% of these weapons are smuggled across the US border. They are frequently purchased from licensed US gun dealers in Texas, Arizona, and

California. AK-47 assault rifles are literally bought a hundred at a time and illegally brought into Mexico. Mexican authorities routinely seize BOXES of unopened automatic military weapons. The confiscation rates by Mexican law enforcement of hand grenades, RPG’s, and AK-47’s are at the level of wartime battlefield seizures. It is hard to understand the seeming indifference and incompetence of US authorities at state and Federal level to such callous disregard for a national security threat to a neighboring democratic state. We would consider it an act of warfare from a sanctuary state if we were the victim.

The bottom line---the US is ineffective and unresponsive to Mexican concerns about weapons, bulk cash, and precursor chemicals flowing south into Mexico from the United States--- with a blow-torch effect on the security of the Mexican people.

Our second amendment and shady dealers are supplying an insurgency in Mexico. Seems the USA under your definition is not sovreign and is allowing direct support to narco-trafficers. Under the above, Mexico is authorized cross-border raids?

AmericanPride
12-31-2008, 04:48 PM
What happens when a more powerful state is "hosting" a "criminal" organization that is "attacking" a weaker state? Or two nuclear states? Or two weak/failing states? Cav has a good example, and there are others. Pakistan/India. Russia/Georgia. Chad/Sudan.

Ken White
12-31-2008, 05:24 PM
... GEN McCafferty is hardly an anti-US source.True but he is awfully prone to hyperbole and belief in divine providence and his omniscience, not necessarily in that order...:rolleyes:
Our second amendment and shady dealers are supplying an insurgency in Mexico. Seems the USA under your definition is not sovreign and is allowing direct support to narco-trafficers. Under the above, Mexico is authorized cross-border raids?I'm not at all sure the second amendment has anything to do with it; crooked dealers and the black market may but I'd be really amazed to find out that said crooks were actually selling grenades and RPGs, both effectively illegal in the US (barring quite strict and closely watched FFL plus laws and rules on destructive devices LINK (http://en.wikipedia.org/wiki/Destructive_device)).

Having said that, I agree with your basic point. However, I also think the issue is government tolerance or tacit support of the illegal act and while one can make the case that our inefficient by design governmental system is at fault in not remediating the weapons sale issue (and I certainly agree we are definitely at fault in that), one would be hard put, I think, to make a case of even tacit support much less connivance.

So with apologies to you but not to Barry, I'm not sure the case is made to refute Chertoff's assertion.

I'd further suggest that he, Chertoff, is on the right track -- a lot of laws and treaties and conventions such as the GC need a revisit in light of 'advances' in our civilization over the last 50 plus years. I think his article's final paragraph is on target:
"The time has come to dispense with two prevailing, and contradictory, myths about international law: that it is necessarily antagonistic to U.S. interests, and that it is an inherently superior enterprise whose rules should trump policies adopted by democratically elected representatives. If the vitality of democratic principles is to be preserved, the United States must reject both of these extreme views and encourage its partners to help build a modern and sustainable international security framework -- one based on the reciprocal responsibility to contain. Such a framework will fail if it overreaches by imposing binding rules prematurely or by subordinating cherished democratic principles to the prevailing normative winds. It will be more likely to succeed if it squarely addresses the new and dangerous threats to sovereignty that have emerged. In the end, only if the United States and its partners take a balanced and measured approach to these challenges will the legitimacy of the international legal system flourish."Works for me. :cool:

I would note, that as you say and for reasons good or bad, we are in fact failing in our "responsibility to contain."

Ken White
12-31-2008, 05:25 PM
What happens when a more powerful state is "hosting" a "criminal" organization that is "attacking" a weaker state? Or two nuclear states? Or two weak/failing states? Cav has a good example, and there are others. Pakistan/India. Russia/Georgia. Chad/Sudan.they'll get away with it. Reality can be a burden...

Tom Odom
12-31-2008, 05:36 PM
I for one find that particular McCaffrey report critically flawed. Any assessment of the drugs and criminal situation in Mexico and its effects on the US that does not address illegal immigration into the U.S. and border security is mental flatulence.

Offering that 500,000 Americans live in Mexico is specious when you have to guess how many millions of Mexicans and others illegally live inside the U.S. is a vacuous statement.

Frankly this merely echoes his role as "Drug Czar".

Tom

Ken White
12-31-2008, 05:50 PM
Well caught. ;)

AmericanPride
12-31-2008, 06:52 PM
they'll get away with it. Reality can be a burden...

Then I have to ask: what's the point of a law if it fails to protect the weak?

I think the Austrians demonstrated this principle under similar circumstances to great effect in 1914.

Ken White
12-31-2008, 07:11 PM
Then I have to ask: what's the point of a law if it fails to protect the weak?and I'll point out that most laws are not designed to protect the weak, they are intended to preserve and enhance the power of the state and its nominal elites. Those few laws that do attempt to protect the weak are at best ineffective and very spottily applied. As Charles Dickens said about 170 years ago:

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience."
I think the Austrians demonstrated this principle under similar circumstances to great effect in 1914.Not really. In fact, all 1914 shows is that then, so-called International Law was a farce. A farce with no force.

It still is.

AmericanPride
12-31-2008, 07:15 PM
In fact, all 1914 shows is that then, so-called International Law was a farce. A farce with no force.

It still is.


and I'll point out that most laws are not designed to protect the weak, they are intended to preserve and enhance the power of the state and its nominal elites.

Then why do you think Chertoff is "on the right track" if the "burden" of "reality" that you describe above does not change?

Schmedlap
12-31-2008, 07:44 PM
International Law is enforced by the stronger party when the cost of enforcing it outweighs the cost of not enforcing it. The existence of a law raises that cost of not enforcing or not following it. That does not mean that the law will always be, or never be, enforced. It just tips the scales slightly. You asked what would happen when a stronger party was the violator. Ken responded that probably nothing would happen. I agree. I also agree that Chertoff is on the right track. We’re the stronger party, seeking to change the laws to suit our interests. That does not mean that we will always adhere to those laws, nor does it mean that we will always enforce them upon others. But it does tip the scales in our direction, changing the laws to better suit our strengths and to be less accommodating to our adversaries’ strengths, raising the costs for our adversaries to leverage their strengths and lowering the costs for us to leverage our own.

AmericanPride
12-31-2008, 07:49 PM
And what happens when we're no longer the stronger party, or those laws accomodate our enemies' strengths more than our own? Our most recent tinkering with international law (Kosovo) opened, some argued, the way for Russia to intervene in Georgia; which, IMO, has damaged our credibility and our interests. And how does selectively employing these laws also affect our credibility and our interests, since you acknowledge that we will likely not apply Chertoff's suggestion universally or fairly?

EDIT: Hypothetical. The kind of international law regime described by Chertoff goes into effect. PRC/ROC relations hit an all-time low. US defense support of ROC continues. Could the PRC invoke such a law, given the PRC's view of Taiwan's legal status? What could be the consequences for US-PRC relations?

Ken White
12-31-2008, 07:59 PM
is in a state of flux (as it has been since about 1993 or so) and that changes will occur. He's trying to point out a direction that some of the changes should take. Most make sense. I could quibble a bit but it makes no difference so why bother?

There really is no international law. Webster's preferred definition is:

" (1): a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority."

As described by the first clause there is 'international law' but the "binding" element is suspect at best; nations will be bound as long as it is in their interest to do so. When that ceases, there is no binding...

The second clause is nearer reality. Note that it requires said binding (with all that does or does not imply) or, more importantly, enforcement by a controlling authority. The closest thing internationally to such an authority is the UN yet it really has no enforcement capability (and it should not). Essentially, lacking a world government (which none of us alive today are likely to see. Fortunately and thankfully...), there can be no true international law, only international norms which most nations will adhere to most of the time -- and that's okay, it's adequate for a 90+ % solution.

That almost good solution will still be designed to favor the State and will be less than helpful to the weak...

Which is about as good as you can expect in reality (with no quotes about it :D )

Schmedlap
12-31-2008, 10:17 PM
I presume that your first question was rhetorical. So, on to the second...


And how does selectively employing these laws also affect our credibility and our interests, since you acknowledge that we will likely not apply Chertoff's suggestion universally or fairly?
I would say that anytime that it appears that we are selectively attempting to enforce laws, it harms our credibility. Whether it harms our interests is situation dependent. For example, let's say that waterboarding KSM was illegal, but that we got some actionable intelligence to prevent a significant attack upon us. I think you could argue either way whether this was in our best interests (good in terms of defending against a threat, bad in terms of public diplomacy).


Could the PRC invoke such a law, given the PRC's view of Taiwan's legal status? What could be the consequences for US-PRC relations?
Question 1: yes. Question 2: probably bad.

So where are you going with this line of questioning?

AmericanPride
12-31-2008, 11:22 PM
I would say that anytime that it appears that we are selectively attempting to enforce laws, it harms our credibility. Whether it harms our interests is situation dependent. For example, let's say that waterboarding KSM was illegal, but that we got some actionable intelligence to prevent a significant attack upon us. I think you could argue either way whether this was in our best interests (good in terms of defending against a threat, bad in terms of public diplomacy).

Good point.


So where are you going with this line of questioning?

IMO, Chertoff's proposal would simply empower our rivals by giving them a legal instrument that we claim to support. The Russians did this exact thing with Georgia using the Kosovo precedent we set. The proposal by Chertoff was not necessary for US/NATO action in Afghanistan -- what has changed to make us need to use it now? And if it's not necessary (read: there are alternatives to justifying US action), why bother legitimizing the intentions/actions of our near-peer competitors? I also wonder what the consequences are at home in forming domestic concensus on policy when we make these kinds of institutions/laws based on moral arguments, only to selectively apply them.

120mm
12-31-2008, 11:41 PM
Given the above, what is your opinion of this (http://www.mccaffreyassociates.com/pdfs/Mexico_AAR_-_December_2008.pdf)? GEN McCafferty is hardly an anti-US source.



Our second amendment and shady dealers are supplying an insurgency in Mexico. Seems the USA under your definition is not sovreign and is allowing direct support to narco-trafficers. Under the above, Mexico is authorized cross-border raids?

That article was a factually flawed anti-gun piece which "cherry-picks" poor data. In other words, it's pretty much bull####. Despite what the leftist rabidly anti-gun media types say, you really can't get military arms from legal gun dealers in the US. Far more likely they are getting them shipped as scrap metal from the Far- or Middle East in 20 foot containers. They are a lot cheaper that way, as well.

You could also say that the Mexican gov't has de facto declared war on the US for their intentional flooding of the US market with illegal free labor and drugs.

But the pragmatic piece kicks in, where the Mexican gov't couldn't really get away with cross-border raids, (thought their military and police forces have invaded the US several times in the past few years, with Mexican gov't officials basically winking and nodding at the perpetrators) and the US couldn't afford to rebuild that crap-hole after we invaded them. Which is why nation-states tend not to hold other nation-states' feet to the fire when it comes to retaliating for safe-havens.

Edited to add: I just now saw that McCafferty wrote that. Well, just because he is a retired General doesn't mean he actually knows his head from his butt when it comes to weapons trade.

Ken White
01-01-2009, 12:38 AM
IMO, Chertoff's proposal would simply empower our rivals by giving them a legal instrument that we claim to support.Empower them to do what?

We claim to support the UN as well but ignore it when it suits us. We've been doing that for over 50 years.
The Russians did this exact thing with Georgia using the Kosovo precedent we set.So they said. Sophomoric sophistry designed to appeal to European social democratic values. The Russians and the US (and the French and the British...) have been intervening in violation of one rule or precedent or another for years. that's unlikley to change. China, India and / or Japan and Brazil may join the party but it'll likely be a while.
The proposal by Chertoff was not necessary for US/NATO action in Afghanistan -- what has changed to make us need to use it now?Not necessary, just to our future advantage to have it available -- not that we'll necessarily totally heed it. :wry:
And if it's not necessary (read: there are alternatives to justifying US action), why bother legitimizing the intentions/actions of our near-peer competitors?Because the power structure likes to have the law on their side realizing full well that they'll ignore it when they wish -- knowing that applies to others as well. As I said above, it's a 90% or thereabouts solution, no more.
I also wonder what the consequences are at home in forming domestic concensus on policy when we make these kinds of institutions/laws based on moral arguments, only to selectively apply them.As we have done for over 200 years? Same reaction in the future as in the past, I suspect -- the One Third Rule applies then, now and probably in the future.

jmm99
01-01-2009, 04:30 AM
from AP
The proposal by Chertoff was not necessary for US/NATO action in Afghanistan -- what has changed to make us need to use it now?

Correct - Article 51 & UN Res re: collective defense justify our actions within Astan.

Now, explain the justification for cross-border action in Pakistan without using some form of Chertoff's logic - assuming no Paki consent.

AmericanPride
01-01-2009, 07:49 AM
Now, explain the justification for cross-border action in Pakistan without using some form of Chertoff's logic - assuming no Paki consent.

Justification is a difficult word. Who are we justifying to and why is it necessary to justify it to them?

Ken White
01-01-2009, 04:09 PM
Justification is a difficult word. Who are we justifying to and why is it necessary to justify it to them?earlier attitude as expressed by this:
"...IMO, Chertoff's proposal would simply empower our rivals by giving them a legal instrument that we claim to support." :confused:

AmericanPride
01-01-2009, 04:18 PM
Ken, I think it's situationallly dependent. The need for justification is inversely proportionate to a state's power IMO. Because our adversaries are currently in a weaker position, any kind of legal justification has greater relative utility for them.

Ken White
01-01-2009, 04:57 PM
Ken, I think it's situationallly dependent. The need for justification is inversely proportionate to a state's power IMO. Because our adversaries are currently in a weaker position, any kind of legal justification has greater relative utility for them.that is not an attitude born of Judeo-Christian moral and legal tradition which much of the world has not accepted and likely will not adopt.

Including, in a way, the US. We have for over 200 years been willing to flout convention, the desires of many other nations and the 'law' when it suited our purposes. Most other nations have done the same. You are absolutely correct that it is situationally dependent, I agree on that aspect but I'm not at all sure that most will see any added utility to themselves. I think some will object to the idea on principle as being 'preemptive' and thus wrong on all levels while most will accept it to one degree or another. Rather, I think the potential impact will be in the US and other European hearth nations (and nations influenced by that hearth) in the form of objecting to action without the justification.

I also strongly suspect such objections will be ideologically based unless the provocation is extreme in which case it will be supported regardless of justification. We humans are a bloody and vindictive lot...

Given my belief that laws require an enforcement capability or they end up just like padlocks -- keeping honest people honest -- that 90% solution, it's hard to say how it will play out. We'll have to see, I guess.

Entropy
01-01-2009, 06:00 PM
I agree with the beginning of the piece, but began to have problems at this point:


Given that international law is an inescapable fixture in today's global political landscape, there is a better way to address modern legal activism. International law should be neither a political tool used to undermine the sovereignty of individual states nor an instrument used by those who seek shelter behind the sovereignty of one country to launch attacks against another.(Emphasis added)

Good luck with that. The reality is that international law will continue to be a political tool and one that the US will use as much or more than anyone else. And Ironically, by advocating later in the piece that sovereignty is (or should be) essentially forfeited under some circumstances, he's advocating that it is, in fact, ok to "seek shelter behind the sovereignty of one country to launch attacks against another." This policy is likely, IMO, to be abused to provide legal cover to launch attacks against another state.


Yet from the standpoint of the targeted state, there is no meaningful difference between an attack launched by a government and an attack launched by terrorists whom a government has failed to control.

Really? I think most people realize there is a world of difference. I certainly think we in the US understand there is a difference between, for example, AQ plotting in ungoverned areas of Pakistan against the US and the Pakistani state plotting against the US.


If states fail to contain transnational threats, there must be an international legal regime that subjects them to potential sanctions or even, if necessary, military intervention aimed at neutralizing those threats. Far from signaling a retreat to unilateralism, this approach would require cooperation in building a new legal framework. The mechanisms and limits of such an international legal regime will require time and effort to construct; the alternative, however, is an ad hoc regime that either encourages a go-it-alone approach or results in international paralysis. Embracing this new framework would not amount to abandoning consent-based international law; rather, it would enhance it. By recognizing that modern technology, transport, and trade often propel the destructive consequences of one state's action or inaction far beyond its own territory, the new framework would help states defend their sovereignty against new security threats. (emphasis added)

The implications are that states will be held legally responsible for threats coming from their territory no matter what and that other states would be legally free to take action in response. The problem here is pretty apparent - what states consider a "threat" is so widely variable as to include virtually anything. This legal regime would, therefore, necessarily require some definitions of what threats will legitimate a response in order to avoid abuse. Good luck with that. As we know from all the failed attempts to define what a "terrorist" or "freedom fighter" is on an international basis, I think it's highly unlikely the community of nations could agree on a legal definition to limit what is and is not a legitimate threat. The result would be that each state would define the threat as it sees fit, resulting in a legal blank check for intervention - particularly for perennial weak states like Pakistan who have never been able to control their own territory. There are a lot of states with restive or barely-governed populations and none of these states are going to sign on to a program that will give others a legal right to unilaterally take punitive actions including invasion. In much of the world, this idea will be perceived as an attempt by the Western powers, and the US in particular, to increase their hegemony/empire.

This legal regime is also counterproductive, IMO. Certainly in some cases it might be argued that the threat of sanction or intervention might compel a state to exercise better control over its sovereignty, or it might lessen duplicity where the state tacitly allows such things to give it plausible deniability. But that's a big might. In the majority of cases, particularly for countries like Pakistan which are incapable of exercising the kind of sovereignty we'd like, this regime will do nothing to increase sovereignty - in fact, the opposite is quite likely. One can imagine insurgent groups purposely becoming a threat to third countries as and even better tool to weaken the host government than it currently is. Pakistan is another great example. We see that even the limited unilateral US operations in Pakistan are weakening state control in the FATA, not strengthening it. A major intervention risks collapsing the Pakistani state. Adopting a legal regime that would provide some international authorization for such action doesn't make the action more desirable or intelligent from a policy standpoint. It's also hard to imagine just how sovereignty will be improved through intervention and/or punitive sanction over the long term.

So Sec. Chertoff is trying to have it both ways IMO - one cannot simultaneously strengthen the idea of sovereignty while providing a legal basis for violation of that sovereignty or punitive action through sanctions.

Here are a few more critical points Sec. Chertoff failed to address:

1. What happens after an intervention to "neutralize those threats?" Let's assume, for a minute, that a foreign power is able to neutralize a threat the host state cannot - a dicey premise to begin with. What next? If the force withdrawals, how will the state regain sovereignty, both in reality and legally?

2. This policy can and will be used against the US and its allies. This legal regime would seem to give Turkey the right to invade Iraq to go after the Kurds; or give Russia the right to intervene against many of its neighbors; give Afghanistan and Pakistan the right to attack each other - what about India and Pakistan and Kashmir? Cuba could conceivably legally take action against the US because of the Cuban exile threat. China-Taiwan. The list goes on and on. It will seemingly allow not just strikes against the actual threat - but action against the host government itself. It's not hard to see how this could be used to start wars of conquest.

4. The inclusion of cyber threats could be particularly problematic and would lead to, IMO, the end of the internet as an open collaborative medium.

5. What about efforts to strengthen sovereignty? Maybe instead of building a legal regime that would authorize punitive actions, it might be better over the long term to build one designed to strengthen sovereignty in ungoverned areas.

In all, I found the piece has some nuggets of good and thought-provoking ideas, but the fundamental premise and analysis is flawed. It seems to me to come from an overly idealistic perspective and the intent appears to me mostly about increasing US freedom of action in the near term in a few specific cases without enough thought to long-term consequences and effects elsewhere in the world.

Edit: As a final point, nations will act in response to serious threats no matter what legality, as they have always done. So is this plan even necessary?

jmm99
01-01-2009, 06:46 PM
from Entropy
.... one cannot simultaneously strengthen the idea of sovereignty while providing a legal basis for violation of that sovereignty or punitive action through sanctions.

Not necessarily so. A nation can have full and absolute sovereignty over internal affairs, so long as the exercise or non-exercise of that sovereignty does not adversely impact other nations in a material way. The same concept can be applied to individuals - we call that libertarianism.

The key concept behind Chertoff's ideas is reciprocity - as to which, there are a number of "Golden Rules" available for selection. :(

Reciprocity is the basic concept behind the "Laws of War" - since, as many here have already pointed out, those "laws" lack any other means of enforcement.

As a related example, take the GCs - accept and apply them and you should get reciprocity. Do not accept or do not apply them and you should not expect reciprocity from others.

Yup, in I Law, all pigs are equal (in theory) - but we all know the rest of the sentence - "...but some pigs are more equal than others."

----------------------
Now, I'll retreat back into my shell, since you all are doing a job on this number. When I posted the OP, I thought it would be nice if a couple of people commented - was I wrong. :D

Entropy
01-01-2009, 07:26 PM
Not necessarily so. A nation can have full and absolute sovereignty over internal affairs, so long as the exercise or non-exercise of that sovereignty does not adversely impact other nations in a material way. The same concept can be applied to individuals - we call that libertarianism.


Libertarianism, particularly related to individuals, is quite different from what Sec. Chertoff is advocating, IMO. We are not talking about holding states accountable for their actions - that is already the standard - we are talking about extending that accountability to things states often cannot control. There's no precedent for that in Libertarianism that I know of and regardless, there is the fundamental difference between the nature of a state and the nature of an individual.

The theory of reciprocity is all well and good, but as I noted in my first comment, the reality is different.

Ken White
01-01-2009, 08:03 PM
...Edit: As a final point, nations will act in response to serious threats no matter what legality, as they have always done. So is this plan even necessary?but as I said above:

"...most laws are not designed to protect the weak, they are intended to preserve and enhance the power of the state and its nominal elites." and:

"Because the power structure likes to have the law on their side realizing full well that they'll ignore it when they wish -- knowing that applies to others as well. As I said above, it's a 90% or thereabouts solution, no more."

Plus, as you said:
"So Sec. Chertoff is trying to have it both ways IMO - one cannot simultaneously strengthen the idea of sovereignty while providing a legal basis for violation of that sovereignty or punitive action through sanctions."True and as you later said:
...We are not talking about holding states accountable for their actions - that is already the standard (*) - we are talking about extending that accountability to things states often cannot control...

The theory of reciprocity is all well and good, but as I noted in my first comment, the reality is different.(emphasis added / kw)Not much new under the sun, is there... :cool:

(*) When it suits, when it suits... :wry:

jmm99
01-03-2009, 10:55 PM
Guess I need to clarify design and intent on what I mean by reciprocity. For the moment, leave on the shelf what the other Mike (Chertoff) means (might mean) by reciprocity. To further clarify, I am not a theorist; I deal with legal practice - how does it work ?

Starting here:


from Entropy
The theory of reciprocity is all well and good, but as I noted in my first comment, the reality is different.

There is no reciprocity unless it is practiced - that is the test for the existence of reciprocity. In short, unless there is reciprocity in reality, there is no reciprocity.

Now, if you are arguing that reciprocity can only be a theory and that reciprocity cannot exist in reality, that would be a logically consistent argument - and also contrary to the reality of our human existence. We reciprocate every day.

Example 1: You keep "your" young chimps in your back yard; I keep "my" young chimps in my back yard - no young chimp trespasses over the hedgeline. Could do this by a written agreement, a handshake or just do it (implicit understanding). Thus, reciprocity in practice - no young chimp trespasses. Golden Rule applicable: Do unto others what you would have them do unto you.

Change the facts: "Your" young chimps keep jumping over the hedgeline; "my" young chimps have not been jumping over the hedgeline. Don't mean nuttin to me whether you own them, whether they are squatters, or whether they are invaders - the threat and damage to me is the same. Thus, no reciprocity in practice - young chimp trespasses by yours; none by mine.

My remedy (since no court can enforce orders concerning young chimp trespasses). Forgot to tell you - I have a 600 lb. gorilla who lives in my backyard, who dislikes trespassing young chimps; and, though old and grizzled, is still very quick - and is adept at killing young chimps. Yup, grossly unfair to you, but it's my hypothetical. Golden Rule applicable: Do unto others what is needed to prevent them from doing what they are doing to you.

So, there will be a real penalty for not being reciprocal in reality - I leave the preventive actions which might be taken by the 600 lb. gorilla to your imagination.

If you do not like my I Law rule in practice, tell me what I Law rule you want to put into practice to control young chimp trespasses. Something from a old German about no critique being complete until a better alternative is offered.

You might also think Cambodia & Laos from ancient days; and Pakistan, Syria, Lebanon & Gaza in current events.

I can answer this:


from Entropy
Edit: As a final point, nations will act in response to serious threats no matter what legality, as they have always done. So is this plan even necessary?

Because a lot of meatheads in the I Law field, including the ICJ, are non-reality based - as the other Mike points out in his article at several places.

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PS: I used "libertarianism" (a concept of human relations in practice). You used "Libertarianism", which is a non-monolitic set of political theorists who disagree with each other as much as they agree. Don't care what the Libertarian Party has to say about this - even though I often vote that line - truth in lending statement.

Entropy
01-04-2009, 03:19 PM
Jmm,

Thanks for the reply!

I agree that reciprocity is both a theory and works in practice. My concern is that Sec. Chertoff appears to be demanding reciprocity from those who are least able to provide it. Reciprocity would seem (to me, anyway) to require that both sides have the actual capability to reciprocate in manner desired. If one side does not, what then?

jmm99
01-04-2009, 09:27 PM
nice to be on a common page again - and a good question:


Reciprocity would seem (to me, anyway) to require that both sides have the actual capability to reciprocate in manner desired

I think we have three cases for the neighbor, who from my point of view is named Nasty until "his" young chimps quit jumping the hedgeline

1. Nasty exercises actual control over the young chimps.

2. Nasty could, but doesn't want to, exercise actual control over the young chimps.

3. Nasty himself is not able to exercise actual control over the young chimps.

As I see it cases 1 & 2 are really the same - the differences are semantic; though it is easier for me to prove case 1 as a hostile act on Nasty's part.

Case 3 is your question - what does Nasty do to create reciprocity in reality ?

I'll throw out a couple of possibilities (as I explained elsewhere, I have to do some real world work this afternoon) - and you can add more.

1. Nasty could hire a 600 lb. gorilla to control his young chimps. I'll put the explanation as a quote.


Nasty is my east hedgeline neighbor. Now I have a south hedgeline neighbor who also has an old & grizzled 600 lb. gorilla in his back yard. Now, the two gorillas sometimes confront each other from their own sides of the hedgeline. Odd confrontation since the one in my yard tends often to be verbose, and the other only says "da" and "nyet". And, they are both very wary of each other - as though they had met more than once in distant times. I have to conclude that I too should be wary of that "da-nyet" guy. But, if Nasty hires him and it solves the young chimp problem, I can take no action - even though it may not be the preferred situation ("acceptable" as they say).

2. Nasty could ask me for help.


Now, sending the 600 lb. gorilla probably would not be the best solution - prefer him at the ready to deal with the other 600 lb. gorilla. Any number of solutions in dealing with the young chimps - not all of them involving violence. Note that my south neighbor (Frenemy) could do the same for Nasty. Might even develop into a Mutual Assistance "War" (between Frenemy and me).

And, I suppose I could build a huge fence in the middle of the hedgeline (ugly & expensive, but perhaps effective). The Maginot Line got a bad rap (it was only built 1/2 way to the Channel because of French government penny pinching) and the Great Wall kept out more invaders than got through. Again, perhaps, an "acceptable" solution.

If Nasty does nothing (and simply whines about why he can do nothing), I reserve my right to remedy his lack of reciprocity by taking preventive action.

Note: before taking any preventive action I would discuss all possible courses of action with the 600 lb. gorilla - not because he's older, but because he is sometimes wiser - besides, it's better than talking to the crickets.

Play with these ideas - see what you come up with.