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Old 09-06-2013   #1
Fuchs
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Default Syria: The case for inaction

(I) Illegality

Charter of the United Nations
signed by the U.S. president
ratified by U.S. Congress
supreme law of the land in the U.S. according to U.S. constitution

Article 2
Quote:
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

The Organization is based on the principle of the sovereign equality of all its Members.
All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.
North Atlantic Treaty
signed by the U.S. president
ratified by U.S. Congress
supreme law of the land in the United States according to the U.S. constitution

Quote:
Article 1

The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.
Military action against is illegal so far because Syria does not attack another nation, is member of the UN itself and the UNSC did not give green light.
Granted, a specific law of the U.S. Congress weighs heavier than a less specific one, so a U.S. law permitting an attack on Syria weighs heavier than the less specific UN Charter and North Atlantic Treaty. An attack would still be an illegal act and violation of both charter and treaty if looked at by other member countries, of course.
An attack of Syria would basically be a violation of the duties as a NATO member. But that's nothing new to some members, of course.

__________________________________

(II) Illegitimacy

Legitimacy (UN aside) can only be had if the action is a ceteris paribus improvement. It cannot be legitimate if it makes the crisis worse.

Killing and destruction is clearly bad in itself, and requires to be outweighed by benefits.
No such benefits have been laid out convincingly.
__________________________________

(III) Efficiency

If civilian suffering is the issue, why not help civilians? Why add destruction, instead of humanitarian goods, to the mix? Compare the cost efficiency.
__________________________________

(IV) ...


(More than enough arguments already in my opinion, so I'm not motivated to sum up all the others. Feel free to add them.
This thread was created because I disliked the imbalance of having a "case for action" thread, but no "case for inaction" thread. The urge "to do something" is strong in humans, but this doesn't mean that action is better than inaction - especially when one can avoid involvement.)
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Old 09-07-2013   #2
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Fuchs, you miss the point totally (either deliberately or inadvertently).

This is about enforcing the prohibition on the use of chemical weapons which is especially important when a country which has refused to sign on to the convention uses these weapons on a repeated and escalating basis.




Quote:
Originally Posted by Fuchs View Post
(I) Illegality

Charter of the United Nations
signed by the U.S. president
ratified by U.S. Congress
supreme law of the land in the U.S. according to U.S. constitution

Article 2


North Atlantic Treaty
signed by the U.S. president
ratified by U.S. Congress
supreme law of the land in the United States according to the U.S. constitution



Military action against is illegal so far because Syria does not attack another nation, is member of the UN itself and the UNSC did not give green light.
Granted, a specific law of the U.S. Congress weighs heavier than a less specific one, so a U.S. law permitting an attack on Syria weighs heavier than the less specific UN Charter and North Atlantic Treaty. An attack would still be an illegal act and violation of both charter and treaty if looked at by other member countries, of course.
An attack of Syria would basically be a violation of the duties as a NATO member. But that's nothing new to some members, of course.

__________________________________

(II) Illegitimacy

Legitimacy (UN aside) can only be had if the action is a ceteris paribus improvement. It cannot be legitimate if it makes the crisis worse.

Killing and destruction is clearly bad in itself, and requires to be outweighed by benefits.
No such benefits have been laid out convincingly.
__________________________________

(III) Efficiency

If civilian suffering is the issue, why not help civilians? Why add destruction, instead of humanitarian goods, to the mix? Compare the cost efficiency.
__________________________________

(IV) ...


(More than enough arguments already in my opinion, so I'm not motivated to sum up all the others. Feel free to add them.
This thread was created because I disliked the imbalance of having a "case for action" thread, but no "case for inaction" thread. The urge "to do something" is strong in humans, but this doesn't mean that action is better than inaction - especially when one can avoid involvement.)
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Old 09-07-2013   #3
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JMA,

the legal situation is far from clear as the action of Assad's forces would not have been against another state actor but own population.

Actions against own population are from a more legal point of view very complex. They are according to an expert in this field not allowed, however, only could be punished under current legislation with UN mandate, which is of course in this case blocked by Russia and China.

http://www.swp-berlin.org/fileadmin/...013A54_slr.pdf

(sorry, article is in German)

So the ugly conclusion of the author is that without Russian and Chinese cooperation there is no firm legal ground to support punitive actions against Assad.

BTW, before such action I would prefer hard evidence and a clear statement what "we" would do if rebels were the culprits, a case that would open another can of legal worms.
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Old 09-07-2013   #4
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Originally Posted by Ulenspiegel View Post

BTW, before such action I would prefer hard evidence and a clear statement what "we" would do if rebels were the culprits, a case that would open another can of legal worms.
Not a good idea.

We have just seen Obama get embarrassed by the 'red line' that he drew. Any card player will know never to show your hand.

Identifying which rebel group or faction were responsible and then know exactly who they are and where to find them is sure to embarrass all the intelligence agencies. The best plan of course would be to 'misdirect' a few cruise missiles onto AQ supporting rebel positions
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Old 09-07-2013   #5
John T. Fishel
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Default International Law is NOT US domestic law...

Gentlemen--

Under US law a treaty ( and the UN Charter is a treaty) has the same status as a statute passed by Congress and signed by the President. It is superceeded by the next law on the subject. An authorization for the use of force passed by Congress, a use of force under the War Powers Act, use of force under the inherent powers of Article II of the US Constitution all override the UN Charter for the US and therefore are legal under US law.

More important, a law that is not enforceable is not a law - at least in analytical terms. International law is never enforceable without the the express consent of the states concerned (even if after the fact of military defeat). Of international institutions, only the UN Security Council has the authority to enforce international law (plus the power to do so) with the caveat that it must not have the formal opposition of a permanent member of the UNSC and it must have a total of 9 positive votes. If this does not happen then the UNSC is unable to act. It does not make action by others impossible but only without UN sanction. is such action illegal? I am sure that many international lawyers would argue it is. But I return to the point I made in the first sentence of this paragraph: A law that cannot be enforced is not a law. Liewise, a law that is not enforced is not a law.

As far as chemical weapons are concerned we have the Geneva Convention (Protocol?) of 1925 banning them and the more recent chemical weapons convention. These are the relevant "laws" on the books. If neither the UNSC nor any state or group of states chooses to enforce them, then they are no longer law and we are back to the international anarchy among states of 1648 - which we really never left, only mitigated.

Cheers

JohnT
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Old 09-07-2013   #6
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Quote:
Originally Posted by John T. Fishel View Post
Gentlemen--

But I return to the point I made in the first sentence of this paragraph: A law that cannot be enforced is not a law. Liewise, a law that is not enforced is not a law.
Excellent statement.
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Old 09-07-2013   #7
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Quote:
Originally Posted by JMA View Post
This is about enforcing the prohibition on the use of chemical weapons which is especially important when a country which has refused to sign on to the convention uses these weapons on a repeated and escalating basis.
Oh, so violation of a treaty (which wasn't even ratified) outlaws a country and means others are entitled to bomb it without UNSC approval? This was news to me.

United States: Welcome, you're now the free fire zone for all NATO members. You have violated the North Atlantic Treaty repeatedly, brazenly, arrogantly, and you need to be taught a lesson.

United States: Welcome, you're now the free fire zone for all countries in the world. You have violated the United Nations charter repeatedly, brazenly, arrogantly, and you need to be taught a lesson.



Treaties don't become universally relevant only because most countries signed them. A whopping 56 countries did not sign the 1925 treaty.
Now if treaties became universally relevant once most instead of all countries sign and ratify, and if this would mean a violation would entitle other countries to bomb the offender, then the United States would need to agree that it not extraditing a suspect to the International Criminal Court authorizes Venezuela to bomb the United States, right?


Hypocrisy stinks, but the fact that people cannot even recognize it is ever-amazing to me.


JMA: Syria has a right to sovereignty, and this has been recognised plenty times. It did not give up its right to sovereignty or its right to not face aggression by its accession to the 1925 Geneva Convention. Feel free to look at the text, but I tell you in advance: No country signs off such a clause except when it lost a war or is about to do so.

------------------------------------

Let's face it: The Syria attack thing is not about enforcing international law. The United States are almost the very last country in the world with any kind of credibility with regards to international law.
The U.S. Congress doesn't want to pass laws or confirm nominees, so Obama can't do much domestically. U.S.presidents have some freedom of action in foreign policy and the use of the military, though. So he looked to the distance and saw a conflict where he could pose a bit. This is all about meddling, nothing about enforcing rules.
If it was about rules, the United States would have allowed the UNSC to condemn and punish Israel for air attacks on Syria months ago, for this was an actually illegal aggression under the Charter of the United Nations. Same for air attacks on Sudan.
No, they waited till they have a cover story for violently meddling against someone they dislike anyway and being rather disingenuous and lacking domestic support, they could think of little more than bombardment.

------------------------------------

By the way; I've seen some website keeping track of what congress members signalled, and it seems Obama is not going to get green light from congress.

------------------------------------

John T Fishel:

The convention does not include any clause about its own enforcement and thus lends no legitimacy to its enforcement if said enforcement is in violation with any other obligation.
http://www.brad.ac.uk/acad/sbtwc/keytext/genprot.htm
http://www.un.org/disarmament/WMD/Bi...s_Protocol.pdf

Last edited by Fuchs; 09-07-2013 at 04:44 PM.
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Old 09-07-2013   #8
Ulenspiegel
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If a nonenforcable law is no law, an approach I can live with, then we have as conclusion no law in case of Syria, as long as there is no consensus within the UNSC, and therefore no legal basis for action. Correct?

Last edited by Ulenspiegel; 09-07-2013 at 04:52 PM.
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Old 09-07-2013   #9
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Originally Posted by Ulenspiegel View Post
I find it odd that a tribunal ruling is weighted so heavily in this document. The criminal tribunal about war crimes in Bosnia was hardly set up and empowered to settle differing interpretations of international law.

The Nurembourg trials get similar respect elsewhere, even though their rulings' standards - if applied to later conflicts - demand the incarceration or execution many, many never incarcerated Western politicians, such as the entire Neocon gang.
In effect, such rulings only seem to carry much weight if the court was set up to rule on the IL question itself, not too rule on actions.
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Old 09-07-2013   #10
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Quote:
Originally Posted by JMA View Post
Fuchs, you miss the point totally (either deliberately or inadvertently).

This is about enforcing the prohibition on the use of chemical weapons which is especially important when a country which has refused to sign on to the convention uses these weapons on a repeated and escalating basis.
And who exactly, has used them? That chemical weapons were deployed has been proven. WHO deployed them has not. Jumping the gun as usual, JMA.

Recently John Kerry used Kosovo as a precedent. Given that the response by NATO was exactly what the KLA wanted when they initiated their pseudo-operations is often forgotten (as is the fact that Kosovo is now run by said criminals); specifically the targeting of civilians by the KLA to prod the Serbs (who by then had become "bad guy #1" in the Western imaginary). This connection is rather fitting becuae there are now reports that some of the Syrian insurgents (yes, [Assad's] Syria proper is fighting a counter-insurgency) were trained by the KLA. Poetic no?

Before that our esteemed political wise men were "willingly" duped over Bosnia too. See also here for the lamentable manner in which sloppy "western" journalists were co-opted by their largely Muslim translators, the corporate media machine and the psuedo-neutral UN.

This whole affair smells a lot like a giant steaming pile of hugger-mugger, confused "interests" (loosely defined as usually nothing more than domestic egoism cloaked in "moral outrage") and downright stupidity......
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Old 09-07-2013   #11
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Default Meanwhile in Moscow & St Petersburg

I was surprised no-one at the G20 Summit asked their host did Russia go to the UNSC before it attacked Georgia? Ah well it was diplomacy in action, so such questions are not asked, even thought of.

Since 1945 I am sure the vast majority of nation-state coercive actions against other nation-states have not gone to the UNSC. Yes, the UNSC has often got involved,with diplomacy and sometimes a 'peacekeeping' fog, sorry role has commenced.
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Old 09-07-2013   #12
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Default From NPR...

Debate: Does The U.S. Have A Dog In The Fight In Syria?
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Old 09-07-2013   #13
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Originally Posted by Tukhachevskii View Post
And who exactly, has used them? That chemical weapons were deployed has been proven. WHO deployed them has not. Jumping the gun as usual, JMA.
5 days ago I posted this:

http://council.smallwarsjournal.com/...0&postcount=34

Listen son, the rule is if you want to take a cheap shot at least get your facts straight.
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Old 09-07-2013   #14
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Default Correct - as far as you go, Ulenspiegel...

but you don't go far enough IMO. In a situation of international anarchy norms - not laws - will be enforced by those who can and have the will. If they are not enforced, the norms lose their status as norms (incidentally one of the few times I agree with my President even though I don't believe he has any intent or will to enofrce the norms he verbally champions). If the norm not to use chemical weapons is upheld by the US - not very likely at the moment - then it will be a long time before a state or leader is tempted to risk the consequenses by using them again and by extension other WMD. If, on the other hand, there is little or no cost to Assad for using chmical weapons he will likely use them again and others will be tempted to push against the limits of other treaties like the NPT and, perhaps use other unacceptable weapons.

Let me return to the prior point: All international law is ultimately consensual and enforceable only by the strong in coalition or alone. the highest legitimacy in enforceing IL against a transgressor is gained if the UNSC is able to act - that is the Great Powers agree and are joined by enogh lesser powers on the UNSC. Then, and only then, is the "law" enforced. Otherwise, a norm is enforced by one or a coalition of powers.

Cheers

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Old 09-07-2013   #15
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"very long"? Sorry, but this sounds like fairy tale to me.
Only ten years ago Americans invaded a neighbour of Syria under the pretence of WMDs, and still don't leave that neighbour fully alone. Syria knew this fully well and still there's now this Sarin incident.

Face it; the U.S. is not the super cop who can make all baddies cower in fear if he's just ruthless and violent enough.
That's merely the story as fed by warmongers.
---------------------------
And one power or a coalition there of cannot enforce a norm. It can only go rogue and violate a couple norms while doing so, all the while pretending to uphold some specific norm.
Vigilantism doesn't enforce laws.
---------------------------
The problem is that the United States want it both ways; it wants others to obey IL and itself not be restricted by it.

Its veto right in the UNSC is welcome when it serves U.S. policy, but when others veto a UNSC action this just gets disrespected and the weasel lawyers in Washington DC make some BS up about how blatant violation of rules is legal under some BS doctrine they just pulled out of their seat cushion.
The most natural consequence of such immature behaviour is a perpetual conflict, disrespect and hostility in the world.

There was a time when the United States helped construct IL and establish the rule of law internationally, thus helping to tame the savage wars which crippled the Western civilisation twice.
Sometime during the Cold War, this was thrown overboard, and post -'91 it became increasingly obvious that the political and cultural forces in the U.S. which disrespect obligations, rules, other countries, the UN and generally the rule of law dominated U.S. foreign policy and UK foreign policy.

It's hideous and ridiculous that the obvious pro-rule of force faction still makes up BS legal justifications for its actions.


There will be backlash again and again as long as the US/UK punish others for not obeying IL while violating it themselves at will, usually even in the act.
It's a grand strategy worthy of an eight year old school yard bully.
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Old 09-08-2013   #16
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Default Case For Inaction: Economics

Not being as eloquent as most of the previous posters, just wanting to add a little more fuel of a different type to the fire:

As known:

01 The American people are not in support of "POTUS's Great Adventure". And it's not even close. The polls are showing that simple fact. It's Not Even Close

02 Congress is not on board. When leadership on both sides comes out in favor, but they're not willing to push on their membership to follow their lead, that's a 'tell' in that each member gets to make up their own mind, and so far, it's a rout.

03 The economics of this could totally blow up in our face:

Quote:
According to the U.S. Treasury, foreigners now hold approximately 5.6 trillion dollars of our debt. Over the past couple of decades, the proportion of our debt owned by foreigners has grown tremendously, and today we very heavily depend on nations such as China to buy our debt.

At this point, China owns approximately 1.275 trillion dollars of our debt, and Russia owns approximately 138 billion dollars of our debt.

So what would happen if China, Russia and other foreign buyers of our debt all of a sudden quit purchasing our debt and instead started dumping the debt that they already own back on to the market?

In a word, it would be disastrous.

As has been written about previously, the U.S. government will borrow about 4 trillion dollars this year.

Close to a trillion of that is new borrowing, and about three trillion of that is rolling over existing debt.

If China and other big foreign lenders quit buying our debt and started dumping what they already hold, that would send yields on U.S. Treasuries absolutely soaring.
Better think long and hard about the economics

04 Lastly, I'm starting to wonder how much of this is really still about Syria, and how much of this has become a pissing contest between the US and Russia/China?

If it's become more about Russia/China, then POTUS needs to step back and re-assess his strategy (assuming a coherent one exists).
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Old 09-08-2013   #17
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The bond interest rate concern is bogus.

The interest rates may rise, but they are bound to rise from almost nothing to something sooner or later anyway.

I doubt that foreigners could/would stop buying U.S. treasury bonds and cause rates to rise significantly beyond said "something" for a meaningful duration.

The system is rigged and rigid enough to prevent that.

The Federal Reserve bank already keeps the interest rates close to zero with its policies, and it can continue with this racket.

The foreign powers such as the PRC cannot simply cut off this kind of capital stream without serious repercussions.
Capital export = goods and services export + transfers.

The Chinese lend USD to the USA so the very same USD can be used to purchase the Chinese export surplus with the USA.
They may stop to lend USD to the U.S.government, but it would need to still lend USD to some Americans, or else they couldn't pay the net imports with them. And it's not important whether the Chinese lend the money to the US gov directly or through some intermediates. In the end, the Chinese can only maintain their trade (and thus their industry, employment, postponing of social conflicts et cetera) if they keep lending.
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Old 09-08-2013   #18
John T. Fishel
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Default Your understanding of the world of international relations

is more than a little skewed, Fuchs. Go back to 1648 in the Germanies. The end of the 30 years war created the world that we know today, only slightly modified. The world is Westphalian (Realist in Hans Morgenthau's term) with some modification brought about by Wilsonian Idealism (but damned little). The critical fact about the Wilsonian institution of the UN is that the UNSC reflects Realist view of the world. In many ways, the UNSC is the Concert of Europe expanded to include China. But for the Wilsonian vision to work the Great Powers must agree. When they don't, the biggest dogs will act and will be driven by their own interests whether seen narrowly or expansively. Ranting against the US and UK has as much utility as King Canute ordering the tide to stop rising - well perhaps a little more because those democracies (and a few others) sometimes listen to their critics. Try ranting against Putin's Russia or the PRC if you want to see what Canute was really up against.

As i said in an earlier post, IL is a weak reed to lean on. It ain't domestic law; in fact it isn't even law in the sense that law exists in all nation-states. It is a set of consensual norms made up of treaties (that apply only to signatories), regulations established by organizations created by those treaties, and customary behavior. No IL can be enforced against a state without either its consent or the power of a major state power or 2 or 5 or 9.If IL must be enforced by a major power(s) it will be done by an act or acts of war. That is true whether it is done with UNSC sanction or not.

Here is a little something to think about: Between 1933 and 1939 the League of Nations remained a functioning organization and Britain and France were Great Powers. In 1936, the Leader of Germany (another Great Power) flouted the treaty that ended the Great War and remilitarized the Rhineland in violation of international law; the other Great Powers did nothing. In 1938 Germany annexed Austria and threatened Czechoslovakia. Britain and France responded with the Munich Agreement for "peace in our time." In 1939 Germany invade Poland (incidentally in violation of IL just as in all the other cases) only this time Britain and France upheld their treaty and IL but it was nearly too late -especially because the other real Great Power, Russia (the USSR) had a non-aggression pact with Germany and opted to seize half of Poland for herself. And the other Great Powers - Japan was busy trying to carve up China and the US couldn't be bothered! The League Council (like the UNSC) was paralyzed and had been so since 1931 when Japan invaded China through Manchuria. Note that all of this took place outside of or in violation of IL. What does this ancient history have to do with today? If IL is not enforced by "acts of war" that are relatively small, the next act of war is likely to be a hell of a lot bigger and a hell of a lot more destructive. Oh, as Saint Carl suggested, the outcome of war is never certain. And, I would add, the outcome of a big war is far less certain with much greater consequences than the outcome of a small one. (I use small here in both its literal and Small Wars meaning.)

On that note,
Cheers


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Old 09-08-2013   #19
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Nice analogy, so befitting of Godwin's law.

There's a problem, though: Think about which country is a serial offender in regard to aggressions and bullying lately.

Sometimes the U.S. government is really not the solution to our problems; it is part of the problem.


It's still ridiculous and takes a lot of Kool-aid to think of the U.S. government as enforcing international rules. The hypocrisy-meter exploded long ago.

And one note to you and others here; the lowest respect for International Law among internet users can reliably be found amongst Americans. Other nationalities tend to be much more willing to give it a chance by respecting it more.
The problem isn't a lack of enforcement as you imply. The problem is a lack of respect. Some people have difficulties with this concept, but it really is possible to respect something without being threatened into it.

Again; try to understand your bunch is a major part of the problems in IL, not a major part of any solutions to problems in IL.

----------------

The good side of this all is probably that -lead by the lower chamber of the UK's parliament - the renewed age of racket interventions is probably nearing its end, with popular majorities finally reigning in on the warmongering through their representatives.
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Old 09-08-2013   #20
John T. Fishel
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Default Respect for law

Fuchs--

One reason that small powers, medium powers, and former Great Powers fall back on IL is that they do not have the tools to enforce the norms they want to see enforced and IL is one of the few tools left. As someone else pointed out, this crisis - if it is indeed a crisis - is a conflict between the real Great Powers and their allies. The actual protagonists in the Syria case are the US and Russia along with Iran and their allies with the US unable to make a solid case to convince its allies that there is a real threat. Our President can't even convince his own countrymen so it is no wonder he can't convince a "hard head" like you!

In any case, my point stands: for "law" to be LAW it must be enforced. To be enforced, there must be agencies to enforce it. In the international community the only such agency is one or more of the Great Powers whether collectively in the UNSC or individually or in ad hoc coalitions.

Cheers

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