A Nation's Duty to Contain Bad Guys

[AmericanPride]

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]

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]

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?

[Schmedlap]

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]

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.

[Ken White]

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.

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]

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.

[Ken White]

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 )