Une certaine idée de la France

It's always annoying to find out how much better Mark Steyn says it than me. Steyn on the French referendum / European constitution vote:

"Commies, Fascists, racists, eco-nutters, union thugs, subsidised farmers, middle-aged "students", Trotskyite professors and welfare spongers win one for the, er, good guys."

Read the whole Daily Telegraph column, here.

***

Then there is the elevation of the poisonous Dominique de Villepin from foreign minister during the Iraq War to interior minister until yesterday and now prime minister. I have spoken with some kindness on this blog about de Villepin for the sole reason that he quotes the great French poet Rene Char as the title for his latest book, The Shark and the Seagull. However, we have to remember something very important about de Villepin. When he first came on the scene, I thought, a typical left-neo-Gaullist. They come, they go. And anyway, I have a deep admiration for de Gaulle, and I even admire Gaullism for its unabashed assertion of French values and interests.

Villepin is something quite different, however. He is a genuine, dyed in the wool Bonapartist. I don't just mean all the busts and portraits of the Great Man in his office, or even his weird book on Napoleon. Villepin really sees himself as the heir to Bonaparte, his reincarnation, in a way that de Gaulle never would have considered - would have found shocking, in fact, shocking to his une certaine idée de la France. Which is another way of saying that de Gaulle really was a great man - and I take that on board despite his deep anti-Americanism - while Villepin is a popinjay, but a dangerous one in power. Camus wrote in The Rebel about the dangers of the dandy in politics, carrying his romanticism and cult of personality into relations between nations - this is Villepin. Ambitious, ruthless, and a romantic dandy, cultifying Bonaparte in a way that even Julien Sorel would have found odious because he hopes to reincarnate him. For Villepin, the European constitution is an integral part of the Napoleonic project for France - France's neo-imperialism within Europe itself - and hence particularly annoying to be betrayed by the citizens of France in their Sunday vote.

I love to visit the de Gaulle museum in Paris - I took my daughter there last year. Napoleon's tomb, on the other hand, gives me the creeps.

O France, you have your modern day Bonaparte; where is your modern day Mme de Stael?

As I've written before here about Dominique de Villepin, he almost perfectly encapsulates Stendhal's remark about Julien Sorel in the Red and the Black:

"Julien fell asleep, dreaming of honors for himself, and liberties for everyone else."

(Then there is the minor issue that Villepin never owned up to in all those acrimonious Security Council sessions before the Iraq War - that through the oil-for-food program, Saddam seems to have believed that he had bought off France and Russia, and hence he was safe. Saddam and France miscalculated, believing that the US, obedient to the line put out by all those liberal internationalists, would not dare attack Iraq without Security Council approval. The oil for food bribery nearly worked - even as French diplomats dismissed any possiblity of a financial stake for France by saying that they had written off Iraq's debts to French companies long before.)

And if de Villepin can quote Rene Char, so can I, from Char's WWII Resistance journal, Leaves of Hypnos, No. 20 (this translation by Cid Corman):

"I think of that army of cowards with their appetites for dictatorship that will perhaps be seen again in power, in this forgetful contry, by those who survive this time of damned algebra."

(Update, Wednesday, June 1, 2005: Anne Applebaum, in her column today on the Washington Post opinion page, points out as well that France's new prime minister, de Villepin, has never stood for any electoral office, never stood in any democratic election. That was not, of course, true even of de Gaulle - but was true, so far as I remember, of Bonaparte. First Citizen, indeed.)

What Euro grandees do when their voters tell them "non"

(Update, Tuesday, June 21, 2005: Mark Steyn on the divergence between Euro-elites and Euro-voters after the French and Dutch no votes, here.)

(Update, Monday, June 6, 2005: See this superb article by the Weekly Standard's Christopher Caldwell on the meaning of the French and Dutch no votes, here.)

Well, if you are Peter Mandelson, formerly Blair's close advisor and currently EU minister for trade, you look stern and say ... "One country, even France, does not have a veto, but this vote cannot be ignored." (From the Guardian, via RCP, here.)

But of course, since the treaty requires that each and every EU country pass it, whether by referendum or parliamentary action, one country, indeed every country, does have a veto. As with so many matters in the EU, "democracy" turns out to be a one way ratchet - if you approve what the Euro grandees want, that's great, but if you don't approve, well, we'll just ignore you and continue the long march through the institutions. Hence the reaction of the president of the EU parliament, the president of the EU council, and the president of the EU commission, here, via EU Web Log, here:

"We fully respect this expression of the popular vote, which comes as a result of an intense debate. The result of the French referendum deserves a profound analysis, first and foremost by the French authorities. They need to be allowed sufficient time for this analysis. For their part, the European institutions will also have to consider, in due time, the results of all ratification processes.

Let us recall that nine Member States, representing almost one half (49%) of the EU population, have already ratified the Constitutional Treaty, including in one case through a largely positive popular vote, and that the majority of Member States have not yet had the opportunity to complete the ratification process."

So what do we make of this? On the one hand, the Euro grandees, we are told, respect the popular vote. On the other hand ... nine member states, with 49% of the population, have already ratified - although only one of those was actually a popular vote. The issue for the Eurocrats, it appears, is how to steamroll ahead with the project while not appearing to disrespect the French "non" vote. My guess is that the grand constitutional gesture will be put aside, and all the central aims will be done by some sort of deal-making in the backrooms of Brussels and Paris and Berlin.

It all has the air of Saint-Juste, arguing in the French assembly for the execution of the king. He recognizes that the merely popular will would spare the king but, taking a page from Rousseau, argues that the general will, the abstract will of what the people would do if they were fully rational, demands that the king lose his head.

(In one sense, the idea of the general will over the popular will is extremely, inevitably French, because Rousseau never really caught on with the Anglo-American democrats. On the other hand, there is a pronounced version of it in America today - it is what folks such as Amy Guttman, Dennis Thompson, and Cass Sunstein argue as "deliberative democracy" - the bold philosophical stroke by which merely popular sovereignty is ignored in order to do what the elites wanted done in the first place.)

Could it be that Jeb Rubenfeld's arguments for popular sovereignty, which he treated (consistent with all the evidence) as a fundamental difference between American and Continental political traditions, actually have some resonance even in Western Europe?

(Update, Sunday, June 4, 2005: Simon Jenkins, The Peasants' Revolt, here.

Nonprofit law and international NGOs (slightly off-topic)

I have been reading my way through Bruce R. Hopkins' new book, Nonprofit Law Made Easy (Wiley 2005). In another part of my professional life, I'm actually a nonprofit law lawyer, specializing in international NGOs and international philanthropy - this goes back to my days as general counsel for George Soros' Open Society Institute, and it continues with my work on the board of the Media Development Loan Fund and other groups.

Hopkins is a leading light on US nonprofit law - his treatise is the standard work on US charities law. This new volume is directed at nonlawyers - people contemplating formation of a nonprofit, nonprofit board members, and so on. It covers the basics in an extremely readable fashion - it explains the law and puts it into the context of how real world organizations have to deal with such issues as executive compensation, unrelated business activities, conflicts of interest, etc. Interestingly, it offers no footnotes, no citations to authority - but Hopkins is so reliable that for the non-lawyer there is no need. Even for an experienced nonprofits lawyer like me, I found it a refreshing overview to reread, a sort of checklist of issues to think about in dealing with an organization. From my own parochial point of view, I would have liked more about international philanthropy, but that's a very specialized topic.

In general, I believe that US nonprofit law has become too permissive in the area of what counts as a charitable activity, and has essentially blessed activities that are essentially campaigning as falling within the law. I would sharply curtail the ability of nonprofits to engage in political advocacy, even under the rubrics of "informing" and "researching" public policy issues, and press the model back to the actual delivery of charitable services, rather than the endorsement of a model that is largely about advocacy to get government to deliver services.

The power of the nonprofit lobby as a political force for its own interests is also very troubling, and it cuts across the usual political lines. I recall a few years ago the subpoena issued by some Congressional committee seeking information and transparency on nonprofit political activities - the nonprofit world responded, from the leftwing ACLU to the rightwing NRA by simply saying, we won't comply, and we have such important people on our boards of directors and such clout that you can't make us, being merely the people's elected representatives and all. There was such an element of outraged virtue - hey, we're civil society, we're the virtue organizations of society, and you're just a bunch of elected boobies, and y'all can go'n fuck yourselves. The ability of the nonprofit world to protect itself against the kind of transparency and accountability that exists even in the for profit world utterly amazes me. There are some moves toward greater accountability, but in general it is a very protected world.

Rational choice theory and laws of war

In setting out versions of realism in the just war debate, a question is arising in my mind as to whether the academic literature is yielding a separate version of realism in both jus ad bellum and jus in bello based around rational choice theory. I am thinking in particular of Eric Posner's writings on this subject, such as his 2002 jus in bello paper, A Theory of the Laws of War, at SSRN, here, or his 2004 jus ad bellum paper, with Alan O. Sykes, Optimal War and Jus ad Bellum, at SSRN, here.

This is a bit of a pedantic exercise, I suppose; the rational choice modeling in this papers is just a version of realism, instrumentalism with a specialized vocabulary. Intellectual writing about war has always had this kind of theorizing - it's hard to see how very different it is from Thucidydes or Hobbes or Machiavelli or Morgenthau. To call rational choice theory in just war argumentation a separate form of realist argument might really be thought merely to be elevating a technical vocabulary over results. And, anyway, there is a certain sense that the standard template of law-and-economics tools - to a man with a can opener, everthing looks like a can - has simply been shifted to this new area, with something like cookie cutter results. Even the sophisticated technical game theory has already been done ad infinitum by game theorists, philosophers, mathematicians, and so on in the modeling games over nuclear war during the Cold War - I'm not sure that rational choice will add that much to the modeling already worked out then.

If there is a new element to it, it seems to me to lie particularly in the jus in bello area - an area neglected in any case by realist instrumentalists - and even more particularly in the concept of reciprocity in the laws of the conduct of war. Rational choice theory naturally emphasizes reciprocity as a condition of stable laws of war - it flows out of its instrumentalism most obviously, but also out of its underlying contractualist way of thinking, and in that there is both an instrumentalist impulse and a genuinely normative one.

Reciprocity has fallen into disfavor among those who regard themselves as the moralist-guardians of the laws of war - the ICRC, the human rights NGOs, de-militarized Western European governments - on the grounds that the laws of war are to be regarded as individual human rights, existent and enforceable as inalienable individual rights, without regard to whether the organized parties to a conflict, states or non-state actors such as Al Qaeda, follow them. It doesn't matter that the other side violates them, you must follow them because they are rights of the individual fighters, their human rights in war. This seems to me a recipe for instability in the laws of war, and their eventual decline into irrelevance - and this is a conclusion which rational choice theory would seem to support.

But of course rational choice theory understands the importance of reciprocity not as a moral theory, but rather as a theory predicting the decline and eventual irrelevance of non-reciprocal standards. The question is whether one should make out the argument for the substantive content of jus in bello, at least in broad outline, on grounds of reciprocity. I increasingly believe it should be made on grounds not just of predictive rationality, for what will happen, but that it is a necessary element of the moral argument - moral realism that says, stable and agreed upon laws of war are morally important, and hence reciprocity is essential because without it, they will fall into disuetude. NYU law professor Noah Feldman's essay against the Bush administration on torture, interrogation, and the laws of war, in the New Republic this week, here (reg. req.), seems to me to fall exactly into the moral trap that reciprocity cannot matter - Feldman walks into it quite knowingly and quite deliberately, as a kind of moral argument, but it does not seem to me that he solves in any meaningful way the problem of reciprocity and the laws of jus in bello. I'll blog more on that article later - it is a profound article, despite my disagreements with it, and requires more space.

So, in a proper survey of varieties of argument over the ethics of war, does rational choice theory need its own separate niche as a version of realism? Given the direction of the academic literature, likely yes.

Memorial Day with Mark Steyn

Mark Steyn's Memorial Day column, from 2004, here:

"Memorial Day in my corner of New Hampshire is always the same. A clutch of veterans from the Second World War to the Gulf march round the common, followed by the town band, and the scouts, and the fifth- graders. The band plays "Anchors Aweigh," "My Country, 'Tis of Thee," "God Bless America" and, in an alarming nod to modernity, Ray Stevens' "Everything Is Beautiful (In Its Own Way)" (Billboard No. 1, May 1970). One of the town's selectmen gives a short speech, so do a couple of representatives from state organizations, and then the fifth-graders recite the Gettsyburg Address and the Great War's great poetry. There's a brief prayer and a three-gun salute, exciting the dogs and babies. Wreaths are laid. And then the crowd wends slowly up the hill to the Legion hut for ice cream, and a few veterans wonder, as they always do, if anybody understands what they did, and why they did it.

Before the First World War, it was called Decoration Day -- a day for going to the cemetery and "strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion." Some decorated the resting places of fallen family members; others adopted for a day the graves of those who died too young to leave any descendants.

I wish we still did that. Lincoln's "mystic chords of memory" are difficult to hear in the din of the modern world, and one of the best ways to do it is to stand before an old headstone, read the name, and wonder at the young life compressed into those brute dates: 1840-1862. 1843-1864.

In my local cemetery, there's a monument over three graves, forebears of my hardworking assistant, though I didn't know that the time I first came across them. Turner Grant, his cousin John Gilbert and his sister's fiance Charles Lovejoy had been friends since boyhood and all three enlisted on the same day. Charles died on March 5, 1863, Turner on March 6, and John on March 11. Nothing splendid or heroic. They were tentmates in Virginia, and there was an outbreak of measles in the camp.

For some reason, there was a bureaucratic mixup and the army neglected to inform the families. Then, on their final journey home, the bodies were taken off the train at the wrong town. It was a Saturday afternoon and the stationmaster didn't want the caskets sitting there all weekend. So a man who knew where the Grants lived offered to take them up to the next town and drop them off on Sunday morning.When he arrived, the family was at church, so he unloaded the coffins from his buggy and left without a word or a note to anyone. Imagine coming home from Sunday worship and finding three caskets waiting on the porch. Imagine being young Caroline Grant, and those caskets contain the bodies of your brother, your cousin and the man to whom you're betrothed.

That's a hell of a story behind the bald dates on three tombstones. If it happened today, maybe Caroline would be on Diane Sawyer and Katie Couric demanding proper compensation, and the truth about what happened, and why the politicians were covering it up. Maybe she'd form a group of victims' families. Maybe she'd call for a special commission to establish whether the government did everything it could to prevent disease outbreaks at army camps. Maybe, when they got around to forming the commission, she'd be booing and chanting during the officials' testimony, as several of the 9/11 families did during Mayor Rudy Giuliani's testimony.

All wars are messy, and many of them seem small and unworthy even at the moment of triumph. The sight of unkempt lice-infested Saddam Hussein yanked from his spider hole last December is not so very different from the published reports of Jefferson Davis’ capture in May 1865, when he was said to be trying to skulk away in women's clothing, and spent the next several months being depicted by gleeful Northern cartoonists in hoop skirts, petticoats and crinolines (none of which he was actually wearing).

But, conquered and captured, an enemy shrivels, and you question what he ever had that necessitated such a sacrifice. The piercing clarity of war shades into the murky greys of post-war reconstruction. You think Iraq's a quagmire? Lincoln's "new birth of freedom" bogged down into a century-long quagmire of segregation, denial of civil rights, lynchings. Does that mean the Civil War wasn't worth fighting? That, as Al Gore and other excitable types would say, Abe W. Lincoln lied to us?

Like the French Resistance, tiny in its day but of apparently unlimited manpower since the war ended, for some people it's not obvious which side to be on until the dust's settled. New York, for example, resisted the Civil War my small town's menfolk were so eager to enlist in. The big city was racked by bloody riots against the draft. And you can sort of see the rioters' point. More than 600,000 Americans died in the Civil War -- or about 1.8 percent of the population. Today, if 1.8 percent of the population were killed in war, there would be 5.4 million graves to decorate on Decoration Day.

But that's the difference between then and now: the loss of proportion. They had victims galore back in 1863, but they weren't a victim culture. They had a lot of crummy decisions and bureaucratic screw-ups worth re-examining, but they weren't a nation that prioritized retroactive pseudo-legalistic self-flagellating vaudeville over all else. They had hellish setbacks but they didn't lose sight of the forest in order to obsess week after week on one tiny twig of one weedy little tree.

There is something not just ridiculous but unbecoming about a hyperpower 300 million strong whose elites -- from the deranged former vice president down -- want the outcome of a war, and the fate of a nation, to hinge on one freaky jailhouse; elites who are willing to pay any price, bear any burden, as long as it's pain-free, squeaky-clean and over in a week. The sheer silliness dishonors the memory of all those we're supposed to be remembering this Memorial Day.

Playing by Gore-Kennedy rules, the Union would have lost the Civil War, the rebels the Revolutionary War, and the colonists the French and Indian Wars. There would, in other words, be no America. Even in its grief, my part of New Hampshire understood that 141 years ago. We should, too."

(The Chicago Sun-Times, May 30th 2004)

The ever tiresome Mark Malloch Brown slamming the US

(Update, Monday, June 20 2005: Report from the NY Sun of Malloch Brown renting a house from and next door to George Soros, here.)

I am no fan of Mark Malloch Brown's - UNDP chief now elevated to chief of staff to Kofi Annan, and chief pr flack in charge of rescuing Annan and the Secretariat from their own faults and unethical dealings. I understand why fans of an ever expanding notion of global governance are infatuated with him. What I do not understand is why anyone serious about UN reform thinks that he is part of the solution, rather than a glib, silver tongued part of the problem. He has his fans, yes; snake oil salesmen usually do.

His latest speech, a commencement speech at Pace University, is filled with such usual pious vacuities as the "global neighborhood" and complaints about the US not respecting international law - a complaint which is, to be sure, quite right, so long as one understands international law to mean what Mark Malloch Brown understands it to mean which is, roughly, what Mark Malloch Brown understands it to mean.

Well, the Associated Press report on the speech is here, and it is evident that Malloch Brown believes ever more firmly that the problem of UN reform is to make it accountable to the world's peoples, to the UN's own agencies and elites, and to like-minded international NGOs, as the Washington Post and Wall Street Journal reported last year. This is what passes for reformist vision within the UN itself, and is one of the nearly endless number of reasons why UN reform is doomed to failure. The policy issue is not really UN reform anymore, but what policy the US should adopt given the failure of UN reform. Getting rid of Malloch Brown would be a start, I suppose, even if a small one.

Amnesty International report slamming US

Read Peggy McGuinness and Julian Ku at Opinio Juris on Amnesty International's US-slamming report. The report (update: actually, its press releases) is noteworthy for two things - first, calling Guantanamo the "gulag" of the 21st century and, second, calling for foreign jurisdictions to arrest and try a long series of current or former US government officials for complicity in torture. I agree with the Washington Post's editorial today that calling Guantanamo a gulag profoundly distorts history - and I would add dishonors Stalin's victims. (Not that AI, these days, would care.) And I agree with Julian Ku that Amnesty International is sliding over the edge into that dubious territory occupied by Noam Chomsky and Ramsey Clark. In fact, I would say that AI has managed to slither right over the edge.

Can Human Rights Watch be far behind? After all, viewed merely as oligopolists in the NGO-virtue market, in competition for headlines and column inches in the MSM, HRW and Amnesty tend to egg each other on. The even bigger question is ...

Can the ICRC be far behind? Memo to the ICRC: You too can slither right over the same edge as AI, and the crazy heart of that kind of craziness is you'll never recognize that you've even gone over the edge. Trapped in the adulation of your fans, intoxicated by your own sense of virtue ... virtue-rhetoric has a dangerous tendency to create its own path.

(Update, Friday, June 3, 2005: See this defense of US Guantanamo policy by Charles Krauthammer, via RCP, here. And even EJ Dionne takes Amnesty to task, here, via RCP.)

(Update, Friday, June 3, 2005: I have an article on this topic, "An American Gulag," appearing in next week's edition of the Weekly Standard. It should be up on its website by Saturday, June 3, 2005.)

UN blue helmet forces using tougher war tactics - and a media double standard on criticism

The Monday, May 23, 2005 New York Times carried a very interesting front page story by Marc Lacey, "U.N. Forces Using Tougher Tactics To Secure Peace." Here, reg. req.

The article describes how the UN, responding over the course of a decade to criticism of its inability to prevent slaughters in Rwanda, Bosnia, and Somalia, has allowed its blue helmets to engage in far more robust military operations than before. The trend is especially noticeable in what has been the worst conflict in the world during several years, the multi-party war in Congo. It has the largest UN troop deployment in the world ... "Peacekeepers in armored personnel carriers, facing enemy sniper attacks as they lumber through rugged dirt paths ... are returning fire. Attack helicopters swoop down over the trees in search of tribal fighters. And peacekeepers are surrounding villages in militia strongholds and searching hut by hut for guns."

Sound familiar? Sound a little like Afghanistan and Iraq in terms of combat troops dealing with irregular fighters?

The article quotes a Bangladeshi colonel, "If we hear they are somewhere, we move in," he said. "We don't get them all the time, but they have to run. Their morale is shattered, and from a military point of view, that is everything."

Sound familiar?

"As they root out the insurgents ... United Nations soldiers ... have at their disposal tanks, armored personnel carriers, Mi-25 attack helicopters, mortars, and rocket-propelled grenade launchers - all of which are getting heavy use ... In March, after an ambush that killed nine Bangladeshi peacekeepers, the United Nations raided a crowded market near Loga to root out fighters preying on the local population. The peacekeepers also conduct what they call 'cordon and search' operations, which are essentially hunts for weaponry in remote villages."

Sound familiar? Lacey is fond of characterizing the insurgents as "preying on the local population" - he does it twice in the article, and while it is true, it is also true that the incident described above could be described as UN troops raiding a market after an attack on their forces, not the local population.

Who are these UN soldiers? In 1998, the article notes, "about 45% of peacekeepers came from Western armies. The figure is now less than 10%; most now come from the developing world. In Congo, most of the peacekeepers are Indians, Pakistanis, Bangladeshis and Nepalese."

***
It is a very good article. If the NYT's articles showed the same general benefit of the doubt toward US military forces in its wars, the NYT would be a more credible paper. The difference between Lacey's account and the usual NYT reporting on Iraq is a pervasive difference in acceptance of the legitimacy, at bottom, of the war. Lacey's reporting carries no sense - as there is in so much Times reporting on Iraq and Afghanistan - that the true purpose of reporting on the actual, on the ground conduct of forces, is actually driven by a second agenda, viz., to de-legitimize the conflict itself. Lacey comes across, if anything, as a little too credulous about the UN - he doesn't really question it except in the accepted terms of moral failure in Rwanda and Bosnia which it is progressively moving to remedy. It is the NYT's sacred "UN=Progress even when it screws up and allows child rape" narrative at work here.

Nor does Lacey adopt, in his assumptions about the UN military mission, the usual NYT strategic premise about Iraq, viz., that insurgents cannot really be defeated by conventional military forces. Instead he quotes a positive-thinking UN colonel in Congo about how his forces are defeating the insurgents' morale - but does anyone think the NYT would run an equivalent story on Iraq and simply leave it at that?

So where is the media scrutiny of the tactics and strategy of these UN forces from the standpoint of the laws of war? Does anyone besides the NYT or MSM really think that the national militaries making up the peacekeeping troops pay anywhere near as much attention to law of war issues in the planning and execution of military operations as the US does in Afghanistan or Iraq? Where is there any media attention to this question? Or is it the case, rather, that the fact that these soldiers happen to wear blue helmets confers a sort of media-immunity on them, at least until something comes out that especially shocks sophisticated Western media consciencies - the sexual abuse of women and children? The questions of collateral damage that might occur when you surround and search a village or neighborhood or crowded market that so preoccupy Western media in Iraq and Afghanistan do not seem to be on anyone's minds in reporting on Congo - exempt from criticism, as it were, because of the UN stamp of legitimacy in the minds of the media.

Lacey makes one reference to a local NGO, Justice Plus, which raised questions about collateral damage - according to the NGO, civilians died in the market incident, but Lacy does not follow it up, does not tell us how many died, nor does he tell us any other facts about an operation that might plausibly be characterized as a response to an ambush against UN forces and in which revenge might at least figure as a possibility. Instead, he immediately drops that in favor of telling a story about a girl horribly abused by militias two years before. It is a horrific and important story.

But let's be honest here. Would the typical NYT story on combat in Iraq have skipped the details about civilians deaths in a US operation that followed on an ambush of Americans, and instead immediately followed it up with a story about atrocities from two years before by Saddam's regime? Hardly.

My point, then, is that Western media has a double standard as between US forces and UN forces. It is not that Lacey's article is wrong - it is that it is nowhere as critical or questioning or skeptical as the equivalent MSM article on US forces in Iraq or Afghanistan would be.

(I should add that I support the UN's deployment in Congo, and the robustness of the engagement, very strongly. It is doing a generally good and necessary job. My concern is, rather, with the media double standard in coverage of these different conflicts.)

Irwin Stelzer on China's economic power; Martin Jacques on US-China fault line; Mark Steyn says nope

Irwin Stelzer, in a Weekly Standard article mostly about problems in the Euro-economies, here, adds this thought about China as a rising economic power:

"Which brings us to China, clearly a rising economic power. But there is an emerging view that the Chinese will grow old before they grow rich, such is the age distribution of the population."

Is this true? I don't know enough about the demographics to say, but it is thought-provoking.

(Update, Sunday, June 19, 2005: Martin Jacques in the Guardian, here, on why the US-China fault line will define global patterns of conflict in coming decades. Mark Steyn on why China won't, here.)

Renovation costs of UN headquarters buildings

As a former New Yorker, and someone who was involved in a massive office renovation in Manhattan, I have been fascinated with this developing story. There have been several posts around the blogosphere, but this story in the Weekly Standard by Powerline's John Hinderaker is a good place to start, here:

"In the midst of these controversies, the United Nations is proceeding with plans to upgrade its Manhattan headquarters. The organization's headquarters at Turtle Bay were completed in 1950 and renovated in the 1970s. The United Nations now believes that another renovation project is necessary, and has prepared a $1.2 billion plan to carry out the work....

If ... estimates are correct, only around 1,029,000 square feet will be renovated under the U.N.'s proposal. At a total cost of $1.2 billion, the project would then weigh in at over $1,100 per square foot.

Either of these figures is regarded by local real estate developers as stunning. The New York Sun reported on February 4, 2005:

'The United Nations has said its plans to renovate its headquarters at Turtle Bay will cost $1.2 billion.

That strikes Donald Trump as far too much. "The United Nations is a mess," the developer said yesterday, "and they're spending hundreds of millions of dollars unnecessarily on this project."
And he's not the only one. Several Manhattan real-estate experts told The New York Sun this week that renovating premium office space should cost a fraction, on a per-square-foot basis, of what U.N. officials expect to pay.

An executive managing director at the commercial real-estate firm Julien J. Studley Inc., Woody Heller, said a thorough renovation of an office building would probably cost between $85 and $160 per square foot.

An executive vice president at Newmark, Scott Panzer, said renovation prices could range between $120 and $200 per square foot. Mr. Panzer, who works with many corporations to redevelop their buildings for future efficiency and energy cost savings, put a price of $70 to $100 per square foot on infrastructure upgrades. Those would include heating; ventilation; air conditioning; replacing the central plant; fenestration (specifically, switching from single-pane to thermal-pane windows); upgrading elevator switch gears, mechanicals, and vertical transportation; improving air quality, and making security upgrades. On top of that amount, another $50 to $100 per square foot would take care of the inside office improvements.
The chairman of global brokerage at commercial real-estate firm CB Richard Ellis, Stephen Siegel, said high-end commercial renovation usually runs $50 to $100 per square foot. For a renovation that does not include new furniture--according to the 2002 Capital Master Plan, the United Nations' will not--but does provide for improved heating, ventilation, and air-conditioning equipment, as well as work on the building exterior, the cost would be closer to the $100 end of the range, Mr. Siegel said. Even accounting generously for upgrades that might be peculiar to the United Nations, Mr. Siegel added, he would set $250 per square foot as the absolute maximum.

It would appear, then, that hundreds of millions of dollars are unaccounted for, even on the most generous assumptions.

Trump has gone further, expressing the view that the expenses projected by the U.N. can only be the result of graft or incompetence.'"

Another ICRC issue - the new customary humanitarian law study

There is another matter related to the ICRC that needs also to be taken up - this is its new study of what constitutes customary international law, available online, here, or from Cambridge University Press.

The study has been released after years of preparation. The ICRC and the study's authors are making a round of universities and other venues - Chatham House, for example, in the UK - to present the study. It is a very long work, put together over years, and I am slowly going through it.

What I have understood of its methodology thus far - (only) 200 pages in so far - indicates that it is magnificent scholarship - if you accept all the stuff that the study takes as evidence of customary international law, of which I am highly skeptical. It includes, in particular, a vast amount of written material by such bodies as the UN Human Rights Commission, and states which have many opinions about war and its conduct but which never actually fight them, relying instead on the US security umbrella while seeking to tell the US how to fight. The premise seems to be that customary international law of war is established by he who writes the most and longest memos.

What I have read thus far is a long, long way from the canonical notion that customary law is established by state practice - what states actually do, and in particular what states actually do who engage in the activity in question - and opinio juris, the considered opinions of states as to what they consider to be legal obligations apart from the main body of international law obligation, treaties.

I will blog more on this subject as I read more - but, as always, the uncoordinated US government does not seem to understand that by saying nothing and allowing its response to drift with the wind over decades, it effectively ratifies the study's questionable views.

Moreover, the Bush administration does not understand that the central importance of this study is not about the actual conduct of US armed forces. It is instead about its use as evidence of customary international law by federal judges hearing Alien Tort Statute cases, which require as a predicate a violation of international law. This immensely expansionary work will make it much, much easier for a judge to conclude that there is a violation of non-treaty, customary international law - a violation of a kind that the US government might well reject as being part of international law. But the US will not have anywhere expressed its view. Where is the awareness of the US government of the ways in which this kind of material leaks across the bureaucratic lines of government?

(Update, Tuesday, May 24, 2005: I received a thoughtful email from Diogenes - I'm not sure where he/she blogs, and it hasn't yet been received as a comment here or at Opinio Juris, which has a related post by Peggy, here. Diogenes notes that I've read only 200 pages - well, now 300 - out of the what, four or five thousand total pages in the study - and that I should be careful about commenting. Fair enough, and I will spend much time over the summer going through the full text. And I will look forward to reading Diogenes' review of it in the New York Law Journal (s/he didn't say which issue, but I'll try to keep an eye out for it and reference it here. However, I did want to respond to one comment that does not require having read the entire study in order to comment - Diogenes says that the study was not intended as a commentary to be used in US court cases, such as Alien Tort Statute cases. Maybe that's right as far as the authors go - although I would be surprised if a lawyer as smart, savvy and connected as Louise Doswald-Beck was not perfectly aware of what it would be used for in the United States. Because I have had many conversations with people over the years about the study - NGO folks - who, once they got a sense of where things were going with the ICRC, made no bones about saying, "When is that ICRC study coming out? We need it for our ATS cases." (There was, to be sure, a period in which the unofficial NGO reaction from places like HRW was fear that it might tie their hands, but that passed as they figured out where it was headed.) Intended by the authors or by the ICRC for use in US courts or not - and I rather suspect that the ICRC knows perfectly well what effect it intends it to have in US litigation, whether ATS or Guantanamo habeas corpus or anything else - it will get used to strong effect in litigation, unless US courts take a bold and improbable step, in the absence of any coherent response by the US government, to restrict its application. It isn't really a matter of what was intended by the authors or the ICRC, but what the Center for Constitutional Rights thinks it can do with it, that matters. And that is irrespective of what the study says. In any case, I do think, even 300 pages in, that there is a strong observable tendency - and frankly undenied - in the study methodologically to privilege as sources things that are a long, long ways from state practice. This has been noted, too, by commentators already, such as some of the gently critical comments at the Chatham House meeting. But I will look forward to reading Diogenes' review.)

Wall Street Journal editorial on the ICRC

The editorial page of the Wall Street Journal today ran a sharp criticism of the International Committee of the Red Cross (ICRC) and its dealings with the US over detainees in Iraq, Guantanamo, and elsewhere, here.

I am a strong supporter of the ICRC and, in particular, at least at this point in time reject calls for the US Congress to reduce or condition funds for humanitarian relief work undertaken by the ICRC in some of the world's most desperate circumstances, as the Wall Street Journal, David Rivkin and Lee Casey, and others have done. Nevertheless, the internal culture of the ICRC is, I believe, in dangerous drift towards simply becoming another yapping Euro-NGO, competing with Human Rights Watch and Amnesty International for the same praise from European elites and the New York Times. The ICRC should understand that it can try to be Human Rights Watch or it can be the ICRC - it can't be both. And in any case, it will never succeed in being HRW or AI - and for the best of reasons.

It can't be those organizations because, unlike them, the ICRC has to deal with the real world of aid and relief and transportation of supplies and field hospitals and water supplies. HRW and AI limit themselves to talk and, increasingly, ideology. The ICRC will never be as clever, as nimble, as media-savvy and connected, as ... well, cool as those organizations. It will, however, save a lot of lives, over decades and indeed centuries, if it can resist the temptation to fashionableness. Problem is, alas, on current evidence, it is not resisting at all.

***
As the WSJ says:

As Bad as the Nazis? What the Red Cross thinks about the U.S. military.

(Monday, May 23, 2005 12:01 a.m. EDT)

The International Committee of the Red Cross is granted a privileged status to inspect the conditions of prisoners of war and other detainees in return for confidentiality. But in recent years it has demonstrated a habit of selective media leaks damaging to American purposes. This is the backdrop for two recent incidents that make us think the U.S. should reconsider the ICRC's role.

The first concerns a story we heard first from a U.S. source that an ICRC representative visiting America's largest detention facility in Iraq last month had compared the U.S. to Nazi Germany. According to a Defense Department source citing internal Pentagon documents, the ICRC team leader told U.S. authorities at Camp Bucca: "You people are no better than and no different than the Nazi concentration camp guards." She was upset about not being granted immediate access shortly after a prison riot, when U.S. commanders may have been thinking of her own safety, among other considerations.

A second, senior Defense Department source we asked about the episode confirmed that the quote above is accurate. And a third, very well-placed American source we contacted separately told us that some kind of reference was made by the Red Cross representative "to either Nazis or the Third Reich"--which understandably offended the American soldiers present.

We called the ICRC last Wednesday for its side of the story, and a spokesman in Geneva confirmed that "there was a serious misunderstanding between the ICRC's team leader and [Coalition] authorities during our last visit to Camp Bucca." The ICRC also confirmed that "the team leader subsequently decided to leave the Iraq assignment."

The spokesman added, however, that he "can categorically say that the team leader did not in any sense compare the detention regime in Iraq to what happened in the Third Reich." Pressed as to whether he could rule out those terms having been used, the spokesman declined, citing the ICRC's practice of confidentiality when it comes to relations with the governments with which it works.

However, a second episode later last week shows that the ICRC is only too happy to throw that same confidentiality rule out the window when it suits its ideological purposes. It did so in the wake of the false Newsweek report about the treatment of the Quran at Guantanamo Bay. The ICRC's Washington office volunteered to the world's media that it had given the Pentagon "multiple" reports from Guantanamo detainees about mishandling of the Quran, after which the detainee complaints had ceased. Pentagon officials confirmed the news, adding that the incidents had been both "minor" and "inadvertent."

In other words, the ICRC hides behind the confidentiality rule when being candid might embarrass its own officials. But it drops the same rule when it is in a position to embarrass the United States, however unfairly. News of the ICRC Quran reports last week came just as the U.S. was scrambling to undo the damage in the Muslim world from the discredited Newsweek story.

This behavior has unfortunately become an ICRC pattern. A pair of earlier ICRC reports on U.S. detention policies in Iraq and at Guantanamo were leaked to the press, and readily confirmed by ICRC officials in Geneva. The Guantanamo report, moreover, called the practice of indefinite detention at that prison "tantamount to torture," a phrase that has since been repeated everywhere by people wanting to damage the U.S.

As we pointed out at the time, that statement was absurd, given that the ICRC's main complaint about the Gitmo detainees is that they were not granted prisoner of war status. POWs are explicitly allowed by the Geneva Conventions to be held indefinitely--that is, for the duration of a conflict. Another problem has been the ICRC's pretense that its policy document called Protocol 1--once dubbed "a shield for terrorists" by the New York Times--is settled international law and applies to the U.S.

Which brings us back to the "Nazi" reference by that ICRC official at Camp Bucca. We wouldn't normally report the remarks, however offensive, of a single official. But after we started asking about the incident, we began to hear from other sources that someone was attempting damage control by alerting the ICRC's friends in the media and State Department about what we might report. One media proponent of the "torture" allegation against the U.S. warned on the Internet that we were out to smear the ICRC (which, we should add, is not the same as the American Red Cross).

No. We are trying to understand how a representative of an organization pledged to neutrality and the honest investigation of detainee practices could compare American soldiers to the Nazi SS. And considering the timing and content of several ICRC confidentiality breaches concerning the U.S. war on terror, it's fair to ask if similar views aren't held by a substantial number in the organization.

The world needs a truly neutral humanitarian body of the sort the ICRC is supposed to be. But the Camp Bucca incident--in addition to the leaked Gitmo and Abu Ghraib reports--is evidence it isn't currently up to the task.

Peter Berkowitz on new books on international law and sovereignty

Peter Berkowitz, of George Mason law school and the Hoover Institution, has written an important review of three leading books on the intersection of international law and sovereignty, here, in Policy Review:

Anne-Marie Slaughter. A New World Order. Princeton University Press. 341 pages. $29.95

Jack L. Goldsmith and Eric A. Posner. The Limits of International Law. Oxford University Press. 262 pages. $29.95

Jeremy A. Rabkin. Law Without Nations? Why Constitutional Government Requires Sovereign States. Princeton University Press. 350 pages. $29.95

"Among american law professors, international law became in the 90s and continues to be today what American constitutional law was in the 70s and 80s — the fashionable front line for advancing progressive social change. Yet even more than constitutional law, international law’s sources and authority are open to dispute. Even more than constitutional law, international law has an ineliminable and robust political dimension. And even more than constitutional law, international law invites an appeal to debatable moral principles in the controversies that arise under it. Despite these vexing features, the dominant view in the legal academy — which closely resembles the consensus among European elites and is associated with the European Union’s self-understanding — is that international law has an identifiable content and that its content corresponds to a progressive interpretation of government’s obligations at home and abroad.

The view is theory-driven and flies commonly under the flag of liberal internationalism. According to the liberal internationalists, a good portion of the structure and content of international law can be derived from reflection on our common humanity or, more precisely, our nature as free and equal rational beings. Such reflection generates an increasingly dense list of human rights that apply to all states everywhere; favors the strengthening of international institutions — such as the International Court of Justice, the International Criminal Court, and the un General Assembly and Security Council — to promote these rights; seeks an increased role for multilateral initiatives; and applauds the growing role of transnational nongovernmental organizations. In the United States, the liberal internationalist view draws support from the writings of America’s preeminent political theorist, John Rawls. In Europe, it gains intellectual heft from Germany’s foremost philosophical voice, Jürgen Habermas. Both theorize about the principles under which rational individuals, freed from partiality and prejudice, would choose to live and from which they can derive binding laws and equitable public policy. To be sure, international human rights lawyers are less likely to invoke the abstractions of Rawls and Habermas than they are to look to developing state practice, or the achievements of international institutions and the fruits of diplomacy, as evidence of what international law requires. Nevertheless, it is theory — or, perhaps more accurately, it is a moral and political conception to which Rawls and Habermas give theoretical expression — that determines for the scholars and jurists which examples of state practice, international institutions, and diplomacy they will appeal to as evidence of the structure and content of international law.

Critics raise a number of serious objections. First, officials of international institutions (to say nothing of ngos) charged with promulgating international law lack democratic accountability: Either they come from democracies but operate at several levels of remove from voters or, far worse, they come from autocracies in which the people whom they supposedly represent have never had a chance to vote for them in free and fair elections. Second, as most international institutions — possessing neither police force nor military — lack the capacity to enforce their rulings and resolutions, their legal pronouncements are impotent and make a mockery of the rule of law. Third, international institutions rely on the dangerous misconception that individuals do, or will come to, place a premium on global citizenship, and that states do, or will come to, place their obligations under international law and to global norms of justice ahead of their own national interest. In reality, the critics contend, individuals are inclined to put state, ethnic group, religious community, or tribal loyalties ahead of global citizenship. And considerations of raw power and refined national interest will, for states, always trump obligations that arise under international law."
***
I strongly recommend the whole review.

Are war and armed conflict in decline?

Gregg Easterbrook has an important and controversial article in this week's The New Republic here (sub req'd), arguing that war and armed conflict are in decline. Part of the basis of his argument comes from this study, Peace and Conflict 2005: A Global Survey of Armed Conflicts, Self-Determination Movements, and Democracy, by Monty G. Marshall and Ted Robert Gurr (you can download the pdf from the linked site).

I'm still reading the study, so I'm not yet ready to comment on whether I think it or Easterbrook is right in asserting that conflict has been in long term decline since the end of the Cold War. Nor am I ready to comment on what, if that is so, are the reasons for decline. But the article is fascinating, and so is the study, even if there is ground for skepticism. But Julian Ku at Opinio Juris has very interesting comments, here.

As for my view of the Newsweek scandal, well ...

I'm with the great Mark Steyn, here.

Update, Monday, May 23, 2005. Best of the Web (May 23, 2005) reports, here, on Newsweek's corrected version of treatment of the Koran at Guantanamo:

"Newsweek has followed up its retracted story alleging that U.S. servicemen had flushed a Koran down the toilet at Guantanamo Bay. It turns out that there is a record of Koran-flushing, but it wasn't Americans who did it:

'In three cases, detainees tried to stuff pages from their Qur'ans down their toilets, according to the Defense Department's account of what is in the guards' reports. . . . Prison commanders concluded that certain hard-core prisoners would try to agitate the other detainees by alleging disrespect for Muslim articles of faith'.

And what about "abuse" of the Koran by soldiers? Well, here's what Newsweek was able to document:

'In fewer than a dozen log entries from the 31,000 documents reviewed so far, said [Pentagon spokesman Lawrence] Di Rita, there is a mention of detainees' complaining that guards or interrogators mishandled their Qur'ans. In one case, a female guard allegedly knocked a Qur'an from its pouch onto the detainee's bed. In another alleged case, said Di Rita, detainees became upset after two MPs [military policemen], looking for contraband, felt the pouch containing a prisoner's Qur'an. While questioning a detainee, an interrogator allegedly put a Qur'an on top of a TV set, took it off when the detainee complained, then put it back on. In another alleged instance, guards somehow sprayed water on a detainee's Qur'an'.

That's it. What's more, after a December 2002 incident in which "a guard inadvertently knocked a Qur'an from its pouch onto the floor," the Guantanamo commanders "issued precise rules to respect the 'cultural dignity of the Koran thereby reducing the friction over the searching of the Korans.' "

Globalization and convergence in the international law community?

I was sitting through commencement at my law school today - congratulations to all the Washington College of Law graduates today and especially to all my students! - thinking a little bit about the claim by an increasing number of law schools in the United States to be "global law schools."

Partly it's a desire to jump on the bandwagon created by NYU law school, under the leadership of Professor Norman Dorsen, to create a global law faculty.

Partly it's an exercise in branding - globalization is a useful marketing slogan. That's true whether you are Pepsicola (although it helps if you don't deliberately spit in the eye of the sovereign state that makes possible your global hegemony, as Pepsi's president recently did at Columbia University in a commencement address, see controversy here) or whether you are a law school. After all, who wants to go to a law school that advertises itself as "parochial" or "narrow minded"?

Partly it's a business model - believing that a law school needs to tap into the global revenue stream, particularly as it both perceived as true and is true that educational quality at American law school's is higher than other places in the world, generally speaking.

Partly it's a strategy of high quality law schools - Duke, for example, in North Carolina or Washington University, in Missouri, or even Michigan - that are national in academic rank but regionally located - to make themselves relevant on the national stage by positioning themselves as "global" law schools, by hiring lots of European and other faculty internationally.

At bottom, it increasingly seems to me, this movement within law schools should be seen sociologically as an instance in the growth of the global bourgeosie - global elites of professionals in various fields, moving toward horizontal "global" connection - frequently with a corresponding disconnection, however, from the vertical relationships to their particular societies, nations, states, and even regions, that created them. Being bourgeois elites, they can't see that this is anything other than a good thing. I'll save for a later post why it has significant social downsides. (But I will suggest that this discussion about law school faculties unsurprisingly has cognates witht the argument over global elites and the use of global law in US constitutional adjudication, about which I have written much on this blog.)

More interesting to me, in connection with law school faculties, and was my topic of thought during part of commencement today, was whether the internationalization of law faculties - bringing in these global superstars, professors from the European Union, especially, to mingle with their international law colleagues in the United States, paradoxically produces greater homogenization of thought, intellectual work, academic work, rather than greater diversity. Apparently bringing together people from around the world, especially across the Atlantic divide, should increase the points of view, should increase the range of academic discussion, should increase the range of scholarly debate. But is this actually true? Suppose one were to figure out some clever way to analyze, for example, the intellectual output of the school most advanced in this regard, NYU law school - would one find that its massive increase in the number of foreign legal scholars had increased the range of its intellectual output, diversified it in any way?

Or, as an alternative hypothesis, might it turn out to have made it more homogenous - ever more brilliant restatements of conventional academic wisdom about international law? If you take seriously the idea that these globalization efforts by law schools are about the creation of a horizontally interlinked global bourgeoisie, one which is transgeographic and yet which shares significant intellectual and cultural assumptions, then globalizing the faculty might actually lead to less, not more, divergence of thought.

Calling Eric Posner: how do you devise an empirical measure of diversity of thought on international law topics by which to measure a faculty's output?

(Of course, this discussion also relates to the question of intellectual diversity on law faculties in the sense of liberal and conservative - the accepted, canonical position on law faculties is liberal internationalism, and the heterodox, particularly American counter-revolt is the movement to defend democratic sovereignty. These don't always and necessarily divide along liberal - conservative lines - e.g., a stalwart liberal such as Jeb Rubenfeld defending democratic sovereignty - but much of the time they do. Where at NYU does one find someone on the international law faculty willing to defend democratic sovereignty?)

Zarqawi justifying civilian deaths in Iraq terror attacks?

I am very curious about this short AFP article, here, which says Zarqawi seeks to justify the deaths of Iraqi Muslim as "human shields" and as, seemingly, not the deaths by terrorism as they obviously are, but instead permissible collateral damage under shari'a law:

***
Anti-US attacks in Iraq which also kill Muslim civilians do not violate Islamic law, Al-Qaeda's feared frontman in Iraq, Abu Musab al-Zarqawi said in a purported tape posted on the Internet.
The recording emerged as the US military said that leaders close to Zarqawi had ordered a recent car bombing campaign that has killed hundreds in Iraq.

"Our fighters only take the initiative of carrying out such operations in line with the principles of the sharia," said the voice attributed to the fugitive leader who has a 25-million-dollar price on his head.

"It is legitimate to shoot all infidels with all the kinds of arms that we have," said the voice, similar to those in earlier recordings attributed to Zarqawi.

"Killing Muslims who are serving as human shields (for the Americans) is allowed by the sharia," he said, backing his arguments with statements from several Muslim clergymen.

In the audiotape, Zarqawi mentioned the death of Pope John II -- which indicated that the message was recorded after April 2.

Many have been criticising the fact that guerrilla attacks in Iraq have been inflicting more victims among Iraqi civilians than US-led forces.

***
From the standpoint of Western moral theory, this version of "collateral damage" doesn't work - even if you were to treat them as military actions rather than simply for the terrorism that they are - because, after all, most of the attacks have not been on US forces with attendant collateral damage to civilians. They have instead been aimed at civilians as such.

Call me culturally insensitive, but it does not appear to be the case that Islam has worked out a systematic ethics of warfare. It is not alone in that - Buddhism, for example, doesn't need one as a religion of nonviolence; Judaism historically has had one only in certain respects, as the historical consequence of a diaspora people who until recently haven't had a state to run and, with it, an army. Christianity's development of an ethics of war was the result of a peculiar circumstance of inheriting state power, and then inheriting a bunch of squabbling kingdoms all with nominally the same religious commitments. And, of course, it is possible to say that Christian just war ethics, secularized into such moral concepts as "permissible" collateral damage, are just immoral accommodations with power, although I, for one, certainly don't believe that.

There is a scramble among Muslim clerics underway to formulate war ethics - but there will always be a difficulty with an ethics that begins, as so many of them seem to, with a proposition that it is not okay to kill and make war against fellow Muslims - independent of considerations of justice and just cause - but it is okay to make war against the infidel, at least if the cause is independently just.

I also find it interesting that during the Iraq war, several prominent Muslim clerics essentially rejected the collateral damage principle - essentially, the doctrine of the double effect - as a kind of sophistry to ease one's conscience about the killing of innocents. Fair enough - many have made that criticism consistently. But if you do that, then you have two choices. Either you can reject the use of force that might lead to innocent collateral damage - which is, practically, to say, renounce war and accept, also, that great injustice (such as the annexation and rape of Kuwait) might be maintained by the use of human shields and other means to force you to the choice of collateral damage or not fighting. Or, alternatively, you can say, let's be honest, we intend to fight, and we will abandon all pretense of justification of collateral damage - we will simply kill as seems to us effective, period.

Zarqawi has opted for the latter, of course, using terror against civilians in particular as what he sees as the most effective means of pressuring his enemy. But it is striking that even he sees some obligation to justify even terrorism aimed directly at civilians as being simply the killing of "human shields," civilians who happened to be in the way.

Notes on democratic sovereignty, post 1/3

(Notes on the nature of democratic sovereignty, drawn from a brief talk at a symposium on sovereignty at the University of Texas law school, April 2005. Three posts.)

1. What is "sovereignty" in relation to, and as against, "global governance"?

I will not attempt here to define sovereignty and variations in the concept of sovereignty – in the way that, for example, Krasner does in his realist book. Instead, I will simply take at face value Lincoln’s classic definition of sovereignty as “a political community, without a political superior.”

2. It is tempting, but a sleight of hand, to define away the problem of sovereignty by suggesting, as some writers writers have done, that sovereignty is compatible with strongly transnational and supranational notions of global governance if only we think of a “new” sovereignty, a concept of sovereignty that relies on the idea that we express our sovereignty by getting rid of it. It might very well be the case that a nation state benefits, net, by getting rid of its sovereignty – net gains in wealth, security, and so on – but it is still a loss of sovereignty, even if offset by benefits.

3. Sovereignty, in the traditional literature of international relations, has been associated with realism, for the reason that realists have asserted, as a matter of descriptive fact, that states seek (material) power and that sovereignty is an expression and channel of that power. Internationalism that undermines sovereign power, by contrast, has traditionally been associated with international law and idealism about law and international society, on the view that states do not merely seek to maximize their power and hence their sovereignty. It is important to note, however, that although the IR realist proposition that states seek power and, hence, typically aim to preserve their sovereignty is a descriptive proposition, the defense of sovereignty is usually a normative one, normative in the same way that the defense of internationalism at the expense of sovereignty is normative.

4. Despite the traditional divide of sovereignty/power realism and internationalism/legal idealism, the debate over global governance and sovereignty has actually shifted to a debate among forms of idealism. Idealism about global governance and order is no longer limited to the idealism of a kind of legal internationalism, international law internationalism, eroding-sovereignty idealism. At least within the United States, a new idealist movement is growing that supports, on normative and idealist grounds, the value of sovereignty. It does not regard it merely as an observable trait of nation states, but instead puts it forth as a proposition – sovereignty, or at least a certain species of sovereignty, is a good thing; it, rather than some for of transnational or globalizing order, is the right form for organizing and governing political communities on the planet.

5. In my review of Anne-Marie Slaughter’s 2004 book, A New World Order, here, I lay out a continuum of available idealist positions on the question of global governance. In summary fashion, they are: pure sovereignty, democratic sovereignty, sovereign state multilateralism, multilateral pooled sovereignty (looking toward global federalism), global governance through public private global policy networks, liberal internationalism, and parliamentary world government.

6. Each of these is an idealist position, a normative position. None depends on the realist-idealist debate; indeed, it is striking to see how much the realist position is today subordinated to the debate among these idealisms. I say this despite the fact that the hot new book is Jack Goldsmith and Eric Posner, The Limits of International Law – it purports to be a realist account of international law. Yet it is quickly evident that its version of realism goes so far beyond merely “material” power of states to incorporate the values of states and societies that this “realism” winds up being in support of one or another form of idealism. And, for that matter, perhaps the best explanation of the evolution of the views of a longtime realist such as Secretary Rice is that she has come to the conclusion that some form of idealism is the “new” realism – the old realism of stability was no longer stable, and the “realist” position could only work with an infusion of values and ideals, and treating them as the ground of a new form of stability. One may disagree with either the values or the ability to make them efficacious in the circumstances, say, of Iraq, but it might be thought the best explanation of this mysterious conversion apparently from realism to idealism. We are all idealists now – even if we are realists in the service of one or another idealism.

7. The central debate is between a particular version of the sovereignty positions and a particular version of the internationalist positions. That is, the central debate is between democratic sovereignty and liberal internationalism. What makes the democratic sovereignty position “democratic” is its insistence that democracy – constitutional democracy, including counter-majoritarian institutions such as courts – is the only acceptable basis for the legitimacy of a modern political community. What makes it “sovereign” is its insistence that sovereignty – the requirement that this democratic political community have no political superior – is the protective shell of power within which the true value, the one that really matters, democracy, is sheltered.

8. What makes liberal internationalism “liberal,” by contrast, is its insistence on universal liberal values, values of human rights. What makes it “international” is its insistence that the way to universalize these universal values is through international, and ultimately transnational and supranational, institutions of global governance.

Professor Slaughter, in her book, has ingeniously and heroically proposed a means to resolve the tension between these two positions, by proposing – normatively as well as descriptively – a new world order based on global government networks to enable the necessary global governance while preserving the democratic legitimacy of local political communities. I have argued, contra Slaughter, that this effort finally collapses in favor of liberal internationalism, at the expense of democratic sovereignty, but I will not repeat my argument here.

Notes on democratic sovereignty, post 2/3

(Second of three posts on the nature of democratic sovereignty.)

9. The defense of democratic sovereignty as a matter of political and constitutional theory as against liberal internationalism has been given with blistering brilliance by Jed Rubenfeld, and I will not recite his arguments here, except to say that I firmly agree with them. (For those familiar with Professor Rubenfeld’s earlier work on constitutionalism and time, the past and present binding the future in the work of such writers as Jefferson, I increasingly understand his views on democratic sovereignty to be deeply linked to this matter of time and constitutional theory. And I eagerly await Professor Rubenfeld’s next book on this subject.)

10. I emphasize, however, that Professor Rubenfeld’s position is a “meta” one – it does not imply a particular policy position with respect to the ends of American unilateralism, the goodness or badness of the war in Iraq, or the final result of any other policy question. On the contrary, it is, as I understand it, a meta-position about the “internal” nature of democratic legitimacy that is consistent with either a strongly unilateralist approach to world affairs or a robustly multilateralist approach. What it does demand is fidelity to a certain vision of constitutional democracy as conceived by a particular political community, faithful to the internal vision of that democratic community, fidelity to democratic means, and a commitment to the sovereign power necessary to make it real and to protect it from outside intervention – again, ‘a political community, without a political superior’.

11. In thinking about democratic sovereignty in these ways, we tend to think about war, peace, security issues. But the principles of democratic sovereignty apply with equal force to economic issues – attempts to circumvent domestic democratic processes in such matters as free trade treaties are fully as suspect for the principled democratic sovereigntist – the democratic sovereigntist for whom democracy and not merely a set of (usually conservative) policy outcomes is the point - as issues of war and security.

I am, for example, on policy grounds as devoted a Ricardian free trader as they come; nevertheless, on still more important grounds of democratic sovereignty, I find attempts to go around the normal constitutionally provided mechanisms for passing legislation – both legislative houses and a presidential signature – through such vehicles as “fast track” to be extremely troubling and frankly illegitimate even if they have been approved by courts. I understand fully the policy difficulties in getting complicated trade legislation through the usual process – however, that’s why we have a process.

In the same vein, I think an important question is the limit of the treaty power – what are the US constitutional limits on what can be done through a treaty that has the approval of only the Senate? We have various long-standing doctrines about self-executing and non-self-executing treaties and agreements, but I believe that these doctrines will come under great pressure from different sides, pressing to limit what can be done by treaty without further legislation and what cannot be done.

My broader point is that it is not a principled democratic sovereigntist approach to say, well, trade is really special for economic efficiency (or even alternatively, well, trade is just trade, it’s very minor and not very important the way security is), therefore we have to set aside our democratic procedures to accommodate globalization, whereas security issues are a different question. Democratic sovereignty is not in principle a conservative or liberal position. It is, rather, a question of whether a political community looks inward to itself or outwards to something else to validate its political legitimacy.

Notes on democratic sovereignty, post 3/3

(Third part of a three part post on the nature of democratic sovereignty.)

12. The discussion has thus far suggested a kind of symmetry between democratic sovereignty and liberal internationalism. I mean symmetry in the sense that in order to satisfy the ideal of democratic sovereignty, you must give up the world federalism implicit in liberal internationalism, and vice versa. The two positions are apparently obverse with respect to each other in their justifications and demands.

This does not seem to me quite accurate, however; it seems to me there is an important asymmetry as between these two. The claim of democratic sovereignty is that democracy matters for its own sake. Whereas the claim usually made by liberal internationalism is a more instrumental one, viz., that some form of global federalism is necessary in order to solve certain problems of the world that require supranational regulation, coordination, and authority – problems of the global commons, environmental problems, international peace and security, and so on.

(You can also make a non-instrumentalist claim for liberal internationalism on purely ideal and normative grounds, on the basis of the international being the historical “bearer” of the universal, but apart from noting that this position is subject to a number of attacks on the presumed identification of the merely “international” and the “global” with the transcendental “universal,” as in “universal values,” I will not deal with this further position.)

13. The democratic sovereigntist will not be satisfied with anything short of, well, democratic sovereignty in satisfaction of its claim for what constitutes political legitimacy. However, democratic sovereignty can also be quite comfortable with a robust form of sovereign state multilateralism that can, in theory, provide for mechanisms of coordination of genuinely sovereign power – and sovereign power constrained by genuinely transparent and democratic mechanisms – that can address many of the issues that the liberal internationalist believes require supranational solution. These mechanisms may be less efficient, less workable, and incomplete, but it does not seem to be the case that supranationalism is required in fact to address the long list of global issues.

(This is precisely Professor Slaughter’s point in calling not for supranationalism and global federalism, but instead “global government networks” to create mechanisms of common authority. My difficulty with her solution on this issue is not the robust multilateralism that undergirds it, but instead that it deliberately relies upon and empowers bureaucrats and judges to create this system of governance – and it does so precisely because they are less democratically accountable and, further, because the aim, it seems to me, is to undermine the unitary sovereignty of the state in favor of something ultimately becomes supranationalism created through a kind of vanguard class of global elites.)

In this sense, the two idealisms are not symmetrical because while liberal internationalism, in its instrumentalist mode, could perhaps achieve its instrumental ends with mechanisms short of giving up sovereignty, democratic sovereignty is a non-instrumentalist position, that cannot achieve its ends if it gives up sovereignty – and, moreover, has a pretty good chance of achieving most of the instrumentalist goals of liberal internationalism through robust but still sovereign multilateralism – but only if that is what the internal democratic community chooses through its democratic mechanisms.

14. The sine qua non of sovereignty, in dealings with the outside world, is the ability to withdraw from common regimes. Democratic sovereignty recognizes certain limits on this – the limit of genocide, for example. But it does not recognize the open-ended expansion of the universally binding, unconsented to, non-withdrawable from, category of customary international law, because that merely represents an end run around democratic sovereignty.

(The new ICRC study on customary international humanitarian law (which I have only had a short time to study, so this view is subject to revision) has significant methodological difficulties in that its reliance on statements rather than actual state practice of militarily significant legitimate democratic sovereigns – the United States, Britain, India, for example – gives fantastically open-ended possibilities, if taken seriously, for states which write a lot of memos to bind states which actually fight and yet attempt to take the rules of customary law of war seriously.)

15. The concept of sovereignty in relation to withdrawal is well explained in Lincoln’s First Inaugural Address, delivered as southern states were seceding and shortly before the beginning of the American Civil War. Ordinarily I agree with the view that American exceptionalism precludes the Civil War from saying much in the way of broader political theory, but in this case I believe Lincoln does, for precisely the reason that the First Inaugural studiously avoids the real issue – slavery – and concentrates on the abstract issue of sovereignty and withdrawal. He makes the famous case that an unlimited right of withdrawal by a state on its own authority undercuts democracy by chopping the democratic polity into smaller and smaller pieces through each dispute. But he rests his case for indivisible union on an argument from commercial partnership law – once in a partnership, an individual member can withdraw only with the consent of the other partners, because they have placed reliance on that member’s on-going participation, commitment to remain, and consent to withdraw only with permission from other partners. Sovereignty, Lincoln notes, is not like that. Democratic sovereigns take their legitimacy from their internal political community, and their commitments to external communities of states are always contingent so long as they are sovereign, no matter how compelling those commitments may be on moral, political, practical, or other grounds.


16. The points made thus far are all broadly in the realm of political theory. But there is another kind of approach to this issue of sovereignty, democratic sovereignty, liberal internationalism and global governance. I have hinted at it in my comments about Professor Slaughter’s proposed new world order. This other approach is to look at sovereignty, liberal internationalism, and global governance from the sociological standpoint of the emergence of global elites that are committed to global governance and some version of liberal internationalism/world federalism from an ideological standpoint. Professor Slaughter makes the socialization of this new global elite – the socialization necessary to its formation and expansion – a central goal of her account of the rise of global government networks. Seen from the standpoint of what has been said above, it is the development of a global class that has power within particular societies and states but has significant, if not exclusive allegiance, to transnational institutions, ideals, and structures.

17. We are going to have to revive (and I will end with this thought) theorizing about the formation of bourgeois and professional class consciousness as a specifically sociological and social theory enterprise if we hope to understand what is going on and what many advocates hope to see go on. It is time to revive the theory of the New Class, this time applied to the rise of global elites. Political theory, indispensable as it is, will not be enough to understand the process of elite and professional formation at the global level that underlies the pressures that lead to these debates in political theory. We will need sociology and social theory, and quite a lot of it.

UN Security Council membership

Like Julian Ku at Opinio Juris, here, I was puzzled by the New York Times' story on how the US is supposedly particularly in opposition to expanded Security Council membership with additional permanent seats and vetoes. Actually, to be honest, I thought it was a silly story. I've been serving as an expert on a major UN reform report, have listened and read a zillion things about Security Council reform from leading players in all this - and to argue, as the NYT article did, that it was the US that was specially in opposition to new permanent vetoes flies in the face of everything I have read or heard from folks around the UN.

The Times' story read as a sort of yet-another-act-of-US-obstruction, whereas the truth is more prosaic. None of the existing veto-holders favors expanding that little club - and why should they? What would the existing club have to gain from new members? And everyone and everything that I've had contact with on UN reform says flatly that if the US is opposed, its opposition is modest compared with the opposition of Russia (whose great power status consists of aging nukes and the permanent veto), China (give Japan a veto - you must be joking), and France (with no other countries more representative of the global south, it has automatic relevance, plus the aging nukes and permanent veto status as great power). Of course the US is opposed, for national interest reasons but also because expanding the veto makes the Security Council less workable than it is already.

Did I call the Times' article silly? Stupid is closer to it, I'm sorry to say, and I'm surprised that the second writer listed was the Times' UN person.

Here's what's really on offer for Security Council reform. No new veto-holders. Expansion of existing permanent members (veto-less) to take on Japan, perhaps Brazil, perhaps Nigeria, perhaps India, perhaps Germany. Or, as several prominent foreign diplomats with much distinguished UN service have suggested, no change at all - simply allow countries like Japan or Germany to negotiate their way to de facto permanent status by diplomacy (an option the US doesn't like, because it involves basically buying votes, and using such currency as overlooking human rights abuses to do it). There are other issues here - Germany believes that it deserves to be a permanent member with veto, on account of its economic clout and financial contributions, despite the fact that it brings no military assets to the table, endorses functional pacifism, and would increase the number of EU members to three. Nigeria might fall apart in a civil war - kind of embarrassing for the organization supposedly responsible for international peace and security. India has a minor problem with Pakistan.

Those of us who don't think so highly of the UN, at least in its security role, think that expansion of the Security Council with lots of new members is a dandy idea - guarantee its ineffectiveness and so make ever more important coalitions of the willing with or without SC approval. So as long as new permanent members don't have vetoes, it is both a practical measure of justice, given where the world's population lies, and a good thing to make the SC what it is, both morally and practically, a talking shop of the great powers, nothing more and nothing less.

But even these changes are doubtful. As I've suggested here before, real UN reform in matters of international security is simply impossible - there is no agreement among the great powers as to what it should look like, and people who spend their time thinking about it are wasting their time. And Julian is absolutely correct about the legal hurdles for actual Charter amendment.

What can be reformed at the UN falls into two broad areas. First, the internal machinery of human rights and democracy - abolishing the Human Rights Commission is doable. Second, reform at the technocratic and managerial level of poverty reduction and economic development - so long as the secondary role of the UN, even compared with the World Bank, let alone private sector investment, is acknowledged.

Fundamentally, though, UN reform is about pruning back the aspirations of the organization and its groupies worldwide. Replace the vision of the overarching tree of global governance with a few low, sturdy, reliable hedgerows in particular areas with no aspirations above that level.

What does this suggest about a new Secretary General? Curiously, it argues for a genuine visionary, not the safe grey technocrat most likely destined to follow Annan. But what kind of visionary? A visionary whose vision is to downsize the aspirations of the UN, and make it a grey and technocratic kind of place, a place that does not see itself as the seat of humanity's aspirations, but a functionary in discrete and concrete matters, measured solely by competency and technocratic, efficicient achievement.

Trouble in Latin America? (also about the cello!)

Latin America seems likely to push its way to the front burner over the next couple of years. I've spent a lot of time various places there over the years - Peru, Guatemala, Panama, etc. I think I'm going to start spending more time on it. I'm the classic case of someone who started out in international law and related topics like human rights and laws of war in the 1980s Central American wars, and then over time shifted other places, such as Yugoslavia, the Iraq, and Central Asia. A lot of journalists and other international hanger on types who started out in the 1980s have done exactly the same thing. But I think the pendulum is swinging back to instability in Latin America, revolving around the trouble called Chavez. It's not just Chavez, of course, but when it comes to instability across borders, it's about Chavez.

One person who has stayed with Latin America throughout all of this is David Holiday - a friend I haven't seen enough of during these years, but who has stayed on in Central America (he has just returned to Maine from Salvador). He and I have some big policy disagreements, of course, as I've tilted right over the years, but he's a great guy and I get a lot out of reading his blog, and you should read it too, to start coming up to speed on developments in Latin America. Read it here.

(I should also add - and this is much, much, much, much, much, much, much, much more important than politics - David and I share a common interest in the cello! He plays much better than I - and although he gave it up when he first went to Central America, he has acquired an electric cello, a Yamaha electric cello that you use with an amplifier, and has played with a little combo, singer, guitarist, cellist, in clubs in San Salvador. At one point, on his web site, David had posted some audio of a performance in Salvador - it was great and I admit to great envy. Check it out here.

I was never really very good - I quit at too young an age and anyway didn't practice enough even then - but took it back up a few years ago, and then got much more serious about it when I got my daughter playing it as a kid. She has taken lessons here in DC for a few years, and while we were in Spain last year, we both took lessons from a wonderful teacher who plays with the Sevilla symphony orchestra. I have a strong passion for early Baroque - I have been working (with great slowness, alas) on a couple of Corelli violin sonatas transcribed for cello, and works by the first real composer for the cello, Domenico Gabrielli, and most recently a gamba sonata transcribed for cello by Buxtehude. As I write this, I am listening to a lovely CD of Antonio Caldara sonatas, trio violin sonatas interspersed with early solo cello sonatas with just an accompanying cello as basso continuo.

But I also love cello in other settings - I love to play Broadway songs, jazz numbers when I can figure them out and they're not too hard, bluegrass, all that stuff, on cello, and I love to hear good cellists do it - I love Matt Heimovitz's version of Hendrix's Star Spangled Banner on cello. I wish some like him would do a version of Santana's Europa on cello. Also, I think a lot of older jazz and blues works well with cello playing the solo guitar parts - slower, and more melodic use of blues electric guitar. If Regina Carter and Kenny Barron can do such wonderful piano/violin jazz, why can't a great cellist do the same thing? It doesn't have to be Yo Yo Ma - there are a lot of great young cellists out there with a yen for musical adventure. (I saw a fabulous cellist when I happened to catch the American Repertory Theatre (Cambridge MA) production a year ago of Oedipus Rex - it was a stunning production, really wonderful, and yet I was distracted by the fact that the music consisted of this super-contemporary combo, with a wonderful cellist, all wired up with a pedal to switch effects - she played so well, I had trouble keeping my mind on the play, which was also great.)

And I would truly love to find/figure out, for me, a transcription of the great Argentine piece Concierto para una sola voz - if any one knows where I can obtain the sheet music, in any form, for voice, whatever, I'd love to know.

So - now you all know my secret passion. Which must remain secret because I really am a terrible cellist - this is unfortunately not false modesty.)

UN official's ties to Kerry campaign

Yet another of the hurdles in the way of UN reform is the apparently close connection between top American staff of the UN Secretariat and other key UN agencies, such as the United Nations Development Program, and the US Democratic Party. The NY Sun reports, here (thanks BOTW), on the complaint filed by senior UNDP staff about Justin Leites, the agency's internal communications chief, who took a leave of absence to work on the Kerry campaign. The complaint says that such partisanship puts UNDP staff at risk from terrorists and hostage-takers, and moreover compromises the appearance of agency impartiality in weak or failed states, where development is closely linked to improvements in governance.

(Of course, it is not as if Secretary General Annan didn't do what he could, in exquisitely timed press conferences and other meetings condemning the Iraq war as illegal, to push American voters toward Kerry.)

Julian Ku on Pasquantino v. US

Julian Ku at Opinio Juris points out, here, that the recent wire tap-foreign tax law case handed down by the Supreme Court, Pasquantino v. US, raises United States v. Curtiss-Wright, famous for the proposition that the President is the "sole organ of the federal government in the field of international relations." Read Julian's full post to understand why this is potentially important in the midst of cases - many surrounding the war on terror, detainees, and so on - in which the executive is asserting precisely this kind of authority.

I would add that it is a proposition that, if really resurrected, would have a significant impact on Alien Tort Statute cases, either if the executive began intervening more aggressively in those cases or, alternatively, if defendants (more and more often defendant corporations) began arguing more aggressively that US federal courts are required to apply the government's understanding of the meaning of international law, whether in the interpretation of treaties or customary international law.

Political asylum for Blair

This blog officially endorses Tony Blair, understanding, of course, that the British parliamentary system isn't the US presidential system - although, so far as I can tell from a distance, Blair has made the premiership much more like a US presidency. The problem is, I wouldn't want to endorse the Labour party as such nor, for that matter, the Conservatives. So the best one can do is endorse Blair, standing alone atop a peculiar and unstable political party construct that one of these days will surely tumble him down.

This is not to say that I agree with Blair on very many issues - better said, as with Bill Clinton, one half agrees, noting that the half one agrees with was something he borrowed from you and won election on as though it were his own. If I were a Briton, the seeming permanent incompetence of the government in the provision of services even amidst a generally improving economy would drive me batty. The sheer spin would infuriate me. His 'third way' stuff is dreaming the impossible dream. His drive into Europe promises to make him the last British prime minister with the power to do what Blair did.

All that said, as the great Mark Steyn points out, for all the many things on which Blair is wrong and his government incompetent, he is right on the one big issue of our time. Which excuses all the rest. Not to mention that his Tory opponents have been utter opportunists on the issue of the war on terror and Iraq - if Blair's for, I'm agin. Here in America we are well acquainted with that policy, and it's called John Kerry. Here's hoping no British Tory is permitted to darken the door of the White House during Bush's second term.

I am aware that an American declaring the "one big issue of our time" might be regarded by some as merely cynically gussying up that which matches American interests, or at least American interests as seen by the government in power. I don't think so. Still, let us be modest. Let us therefore add:

If - when - Tony Blair falls from power, and is pursued in disgrace by his accumulated enemies of the British right and left, driven from pillar to post by angry mobs of Britons, Michael Howard erecting walls before him to cut off his escape and Gordon Brown harrying him with his hounds of orthodox Laborite hell from behind and the Liberal Democrats threading nooses and the European Court of Human Rights making a special exception to the no-capital-punishment rule, without a moment's rest or place to lay his head -

Well, it behooves the United States to remember who stood by it when the rest of the world's great and good stood aside, and offer Blair political asylum.

And a rich sinecure on Wall Street with an investment banking firm and a place in the Hamptons, preferably next-door to George Soros'.