A MORAL CRITIQUE OF U.S. FOREIGN POLICY INTERNATIONAL LAW AND GENUINE COMMUNITY

I Pledge Allegiance to.... Sanford Levinson’s encounter with the Constitution... Was this the Constitution without the Bill of Rights? Was this the Constitution without the Bill of Rights? Without the Civil War Amendments? Without the Civil War Amendments? Without the 19 th Amendment that guaranteed women the right to vote? Without the 19 th Amendment that guaranteed women the right to vote? Given the moral gravity of these changes, he had to ask himself whether he could commit himself to the current Constitution? Given the moral gravity of current affairs, we must carefully explore and reawaken our appreciation for our deepest values.

Reclaiming our Values As children, we are raised to believe that our country is on the side of justice and goodness. As children, we are raised to believe that our country is on the side of justice and goodness. However, the moral goodness of the United States is not a necessary proposition. Nor is it a permanent condition. However, the moral goodness of the United States is not a necessary proposition. Nor is it a permanent condition. As adults, we are required to make that determination on the basis of evidence. And now is an especially important moment. As adults, we are required to make that determination on the basis of evidence. And now is an especially important moment. The core values of the United States are consistent with, and perhaps ever require, a radically different international stance—one based on equal membership in a community of nations under the rule of law. The core values of the United States are consistent with, and perhaps ever require, a radically different international stance—one based on equal membership in a community of nations under the rule of law.

International Affairs at a Paradigm Crossroads TRADITIONAL PARADIGM Nation-States with Strong Sovereignty Nation-States with Strong Sovereignty Weak Regime of International Legal Institutions Weak Regime of International Legal Institutions Bilateral or multilateral treaties--Mutual Protection Associations and cooperative arrangements for mutual benefit Bilateral or multilateral treaties--Mutual Protection Associations and cooperative arrangements for mutual benefit Lip service towards human rights Lip service towards human rights Just War Tradition Just War Tradition

Challenges to the Existing Paradigm of Positivism and Sovereignty Pure legal positivism insufficient to justify Nuremberg indictments Pure legal positivism insufficient to justify Nuremberg indictments UN Declaration of Human Rights and the growing focus on individual natural rights UN Declaration of Human Rights and the growing focus on individual natural rights Humanitarian Interventions—Somalia, Rwanda, Bosnia and Kosovo, East Timor Humanitarian Interventions—Somalia, Rwanda, Bosnia and Kosovo, East Timor Maturing of International Law--International Criminal Court and the European Court of Human Rights Maturing of International Law--International Criminal Court and the European Court of Human Rights Terrorism—non-state actors using violence on a war-like scale against civilians Terrorism—non-state actors using violence on a war-like scale against civilians

New Era? Given these and similar challenges, we are told that we are entering a “new era” in international relations. Given these and similar challenges, we are told that we are entering a “new era” in international relations. If we are at the birth of a new paradigm, we must recognize: If we are at the birth of a new paradigm, we must recognize: 1.That there are ALTERNAITVES, 2.That these paradigms are human constructs, and 3.That we have the responsibility to build the best system that we can. Here is my view of the choice that we face...

American Imperialism or Moral Community? American Imperialism American Exceptionalism American Exceptionalism Weak international law Weak international law Inequality Inequality Positivism Positivism Unilateralism Unilateralism Moral Community Equality Equality Rule of Law Rule of Law Equal Concern and Respect Equal Concern and Respect Natural Law and Human Rights Natural Law and Human Rights Multilateralism Multilateralism

Wild West Analogy When evaluating the Bush administration’s preferred paradigm, the best model is to imagine a 19 th century town on the American western frontier dominated by a thug who considers himself immune from the nascent legal order in that community. For Example... LIBERTY VALANCE

There are good reasons to cast the U.S. as an international outlaw In the 1986 Nicaragua case, the US declared itself an international outlaw when it terminated its acceptance of the compulsory jurisdiction of the International Court of Justice. In the 1986 Nicaragua case, the US declared itself an international outlaw when it terminated its acceptance of the compulsory jurisdiction of the International Court of Justice. In April of 1990, the US violated our extradition treaty with Mexico when we kidnapped Dr. Humberto Alvarez-Hachain. In April of 1990, the US violated our extradition treaty with Mexico when we kidnapped Dr. Humberto Alvarez-Hachain. In the 1998 case of Paraguay v. United States, the U.S. ignored an order of the International Court of Justice requiring that it “take all measures at its disposal to ensure that Angel Francisco Breard is not executed.” In the 1998 case of Paraguay v. United States, the U.S. ignored an order of the International Court of Justice requiring that it “take all measures at its disposal to ensure that Angel Francisco Breard is not executed.” AND we declare ourselves an outlaw when we assert that we will “go it alone” if the UN fails to authorize force. AND we declare ourselves an outlaw when we assert that we will “go it alone” if the UN fails to authorize force.

Active Opposition to the Emergence of Effective International Legal Order The U.S. has refused to ratify the treaty creating the International Criminal Court, AND The US has threatened to suspend military aid to countries who won’t agree not to extradite US citizens to this courtThe US has threatened to suspend military aid to countries who won’t agree not to extradite US citizens to this court The US threatened to veto reauthorization of UN peace keeping missions if US personnel were not granted prosecutorial immunityThe US threatened to veto reauthorization of UN peace keeping missions if US personnel were not granted prosecutorial immunity

Active Opposition to the Emergence of Effective International Legal Order We have also refused to ratify: We have also refused to ratify: Vienna Convention on the Law of TreatiesVienna Convention on the Law of Treaties Law of the Sea TreatyLaw of the Sea Treaty The American Convention on Human RightsThe American Convention on Human Rights And we refused to substantively participate in the Johannesburg Conference on Sustainable Development And we refused to substantively participate in the Johannesburg Conference on Sustainable Development

The principle the Bush administration appears to be advancing is: American Exceptionalism The idea is that international norms, rules, principles, and laws should apply to everyone “except” Americans. The idea is that international norms, rules, principles, and laws should apply to everyone “except” Americans. What else would you expect an outlaw to advocate?

Other Elements of the American Imperialist Paradigm Inequality—our interests trump the needs, desires or rights of othersInequality—our interests trump the needs, desires or rights of others Positivism—Strong sovereignty (for us) and there are no rules that limit us except those that we have explicitly acceptedPositivism—Strong sovereignty (for us) and there are no rules that limit us except those that we have explicitly accepted Unilateralism—our WILL alone determines what we can or ought to doUnilateralism—our WILL alone determines what we can or ought to do Hegemony and Empire

Alternative to American Imperialism EQUAL MEMBERSHIP IN A COMMUNITY UNDER THE RULE OF LAW UNDER THE RULE OF LAW Multilateralism Multilateralism Rule of Law Rule of Law Human Rights Human Rights Equality Equality Reason and Universalizability Reason and Universalizability

The Community Paradigm constitutes a moral critique because It seriously acknowledges: The duties of community that are based on fairness and the long term common good The duties of community that are based on fairness and the long term common good The full equality of all members The full equality of all members Individual human rights as absolute limits on power Individual human rights as absolute limits on power Pluralism, diversity, and sustainability Pluralism, diversity, and sustainability Reason or Universalizability—consistency in principle, and Reason or Universalizability—consistency in principle, and The Rule of law The Rule of law

In the Community, multilateralism will show up as... A genuine discourse among equals. Bush will not be able to act as if public debate is good only because it is cathartic for those who have a problem with what we have decided to do.Bush will not be able to act as if public debate is good only because it is cathartic for those who have a problem with what we have decided to do. Or that negotiation has occurred when you express your needs and concerns and then listen and obey when I tell you what I’ve decided to doOr that negotiation has occurred when you express your needs and concerns and then listen and obey when I tell you what I’ve decided to do 1. No nation will have a veto and no one will have legitimate recourse to violence, except in legitimate self-defense 2. There will be a deeper sense of democracy and citizen participation in the process

Multilateralism will show up as... Limited Sovereignty Just as Ohio retained its sovereignty when it joined the Union, so too the U.S. will retain its sovereignty within the community of nations. Just as Ohio retained its sovereignty when it joined the Union, so too the U.S. will retain its sovereignty within the community of nations. This sovereignty will, however, be limited. The powers and jurisdiction of the Community will be limited, but their will be a supremacy clause. This sovereignty will, however, be limited. The powers and jurisdiction of the Community will be limited, but their will be a supremacy clause.

Fairness will show up as... Equality– each member of the community will have the same powers, privileges, and immunities. Equality– each member of the community will have the same powers, privileges, and immunities. Global Citizenship—We cannot be free riders in the global community. If we benefit from the cooperation of others, we must fulfill our duties of membership. Global Citizenship—We cannot be free riders in the global community. If we benefit from the cooperation of others, we must fulfill our duties of membership.

Duties of Community It is sometimes suggested that corporations ONLY have duties to the investors. This is countered by those who suggest that there are positive duties of membership in a community The international community paradigm is committed to the view that nations are not just a collection of individuals each pursuing their own separate interests. Rather they are equal members in a collective endeavor.

The Rule of Law will show up as An equal limitation on both bad actors AND those who stand for justice. Neither the outlaws nor the sheriffs will be able to exercise dictatorial powers. Whatever may be appropriate action toward Saddam Hussein... George W. Bush cannot act as a vigilante. Nor can he be permitted to lead a lynch mob. He can ONLY do what he is legally authorized to do by Congress AND the United Nations Security Council.

The Rule of Law is about Subordinating Power to Reason This view was poignantly expressed by Justice Jackson in his opening remarks at the Nuremberg Tribunal, when he said: That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

Rule of Law No one is above the lawNo one is above the law Everyone is equal under lawEveryone is equal under law No one can take an action which threats to undermine the legal systemNo one can take an action which threats to undermine the legal system Consistency in Principle—The principle that justifies your action must be part of a coherent theory which, together with other principles, can justify the majority of your past actions any of your expected future actions.Consistency in Principle—The principle that justifies your action must be part of a coherent theory which, together with other principles, can justify the majority of your past actions any of your expected future actions. Precedent– Similarly situated others can use your principles to justify their actions.Precedent– Similarly situated others can use your principles to justify their actions.

Precedent captures the moral requirement of universalizability 1. If you are unwilling to permit others to act in accordance with the rule, principle, or policy that you are offering as a justification for your action, and 2. They are similarly situated. 3. Then, you are behaving immorally.

Precedent under the Rule of Law If we want the Somali’s to treat our soldiers as prisoners of war in the “Blackhawk Down” episode, then WE must respect the treaties that establish those rights. If we want the Somali’s to treat our soldiers as prisoners of war in the “Blackhawk Down” episode, then WE must respect the treaties that establish those rights. If we want China to resist regime change in Taiwan or if we want due process for our soldiers who crash their crippled airplane at their airbase, WE must limit our aims and grant such rights in a like manner. If we want Russia not to invade Georgia, then we must not invade others willy-nilly.

Equality will show up as a diminution of nationalism Nationalism is a narcissism of minor differences – Michael Ignatieff Nationalism is a narcissism of minor differences – Michael Ignatieff Nationalism is a fiction that requires a willing suspension of disbelief Nationalism is a fiction that requires a willing suspension of disbelief

Human Rights We create our own reality. If enough people speak within the narrative of human rights, then they become a reality that must be acknowledged. We create our own reality. If enough people speak within the narrative of human rights, then they become a reality that must be acknowledged.

From within the community paradigm: Our criticism of sharia-based stoning of adulterers and female circumcision would be acknowledged just as we acknowledge the call for us to abandon the death penalty. Saddam Hussein might be able to go to the World Court and obtain a restraining order against the threat of U.S. military action

Pluralism I am not suggesting that we have pluralism concerning human rights. Those are basic and not negotiable. I am not suggesting that we have pluralism concerning human rights. Those are basic and not negotiable. But the overall package of our values that we are pushing on the world is simply UNSUSTAINABLE. But the overall package of our values that we are pushing on the world is simply UNSUSTAINABLE. It is vital that we encourage a wide diversity of social systems and experiments in ways of living, because our way is, ecologically, utter folly. It is vital that we encourage a wide diversity of social systems and experiments in ways of living, because our way is, ecologically, utter folly.

Conclusions The Community Paradigm is morally superior to the Empire alternative. It acknowledges others as equalsIt acknowledges others as equals It subordinates power to reasonIt subordinates power to reason It is faithful to the deepest American valuesIt is faithful to the deepest American values It acknowledges natural and human rights and the duties of community membershipIt acknowledges natural and human rights and the duties of community membership It would treat acts of terrorism as crimes, not acts of war which are used as a pretext for domestic violations of constitutional rightsIt would treat acts of terrorism as crimes, not acts of war which are used as a pretext for domestic violations of constitutional rights

Conclusions The Community Paradigm has superior policy implications. Thus, from within that paradigm, the U.S. will sign and ratify: 1.Vienna Convention on the Law of Treaties 2.The International Criminal Court Treaty 3.The American Convention on Human Rights 4.The Treaty to Ban Landmines 5.The Law of the Sea Treaty

Conclusions From within the Community Paradigm, we will: 1.Permanently submit ourselves to the jurisdiction of the World Court. 2.Promote and strengthen international law and its institutions. 3.Neither threaten nor act outside the authority granted to us by the United Nations Security Council. 4.Participate in and fully cooperate with efforts to deal with global problems such as war, environmental degradation, poverty, hunger, refugee relief, human rights violations, biodiversity, and cultural diversity.

Important points to preserve 1. The US retains the natural right of proportional genuine self-defense. Neither the UN Charter nor the Constitution should be interpreted so as to make them a suicide pact. 2. We must preserve individual liberty within community. Maoism or Borg-like collectivism is not acceptable. 3. We are morally permitted to show a limited bias in favor of our family, friends, and fellow citizens.