Daughter Renee and Ken biking up Shadow Canyon into the lower White Mountain foothills.

The brooding, mysterious White-Inyo mountains, that form the other wall of the Owens Valley - the highest peak, White Mountain, is only 200 feet lower than Mount Whitney, yet geologically these folded desert, Great Basin range mountains could not be more different from the glacially shaped Sierra Nevada.

The eastern Sierra from Bishop, California, along highway 395. We took this photo while out mountain biking across the valley floor.

Photos of vacation in California's empty quarter because coming home is hard to do

Okay, I know it is not precisely academic and intellectual and all that, but frankly coming home from California, both Palo Alto and the Eastern Sierra has been depressing beyond belief. Washington DC is a horrible, horrible climate - there's no other way to put it - and I've decided I never want to go outside again. And since the painters - all excellent Polish craftsmen, but barely a word of English between them - managed not to finish painting the downstairs of our house, and the plantation shutter people managed not to put on the shutters around the house, and the refrigerator seems to be on its last legs - well, all is not for the best in this best of all possible worlds.

So despite the fact that there are so many fascinating things to blog about, I am going to skip the international law stuff for a bit and post a couple of pictures from vacation. Off topic, but presumably Glenn Reynolds would be impressed to know that my twelve year old daughter, Renee, learned to shoot a gun for the first time - her idea, too, to my surprise (she hates loud noises). We hiked and biked, and Renee went rock climbing up an intermediate route with an expert guide, Chris, from Sierra Mountain Center, Bishop, California, up something called Premier Buttress, out of Whitney Portal.

Plus, classes begin a week from today, and although I actually love my students and my faculty at Washington College of Law, and although I further know it is a good idea to finish the semester by early December, starting classes in mid-August seems, well, perverse.

Ten days vacation in the eastern Sierra Nevada

Spend ing ten days on genuine vacation in the eastern Sierra Nevada in California - the town of Bishop in the Owens Valley, California, along the unbelievably gorgeous highway 395 between Reno and Mojave. We go hiking up in the mountains, biking around on the desert floor, and my twelve year old kid is on her way back from rock climbing up some buttress in the Mount Whitney area. It's hot in Bishop, hundred degrees mid afternoon, but very dry, and much cooler up in the mountains. So I'm not paying attention to anything - congratulations to John Bolton, but I'm not actually reading any newspapers other than the Inyo Times. My daughter is going to spend the day after her big climbing day getting a manicure and pedicure with my wife - not much point in doing that before climbing - and then Saturday we are going to learn about shooting guns from a friendly off-duty police officer here. Here - not Washington DC - is where my heart is, and has been since I was young and used to come up here from home in Claremont, just east of Los Angeles.

I am doing some reading - a very interesting book on Lincoln's diplomacy - really, the diplomacy and foreign relations of both North and South in the civil war - Abraham Lincoln and a New Birth of Freedom: The Union and Slavery in the Diplomacy of the Civil War, by Howard Jones (U Nebraska 1999), a professor at the University of Alabama (whose scholarly work on the Amistad provided the basis for the Hollywood film). I'm midway through it and learning a great deal - much of it quite startling because I had never in all my reading been clued in to the extent of European imperial aims that might have lead Britain or France to intervene in the Civil War.

I should add that we had a wonderful time at the Hoover Institution - I found it wonderfully productive on the UN reform book that I am in the midst of writing and the staff and folks there are the perfect hosts. I was able to meet again someone I have long admired, Victor Hanson, as well as get in touch again with an old friend and fellow Telos editor, Stanford professor and Hoover senior fellow and now, following the sad death of Paul Piccone, editor of Telos, Russell Berman. It was great to be able to both work and play with Tod Lindberg and his family, and to hang out with Christopher Hitchens and Carol Blue and their daughter Antonia in Palo Alto. It was great, and we were sorry to leave it so soon. However, the drive from Reno down 395 to Bishop in the afternoon and sunset was spectacular, and we're very happy to be here and away from everything - which actually includes the computer.

A couple of weeks at the Hoover Institution, Stanford University

I am currently at the Hoover Institution, Stanford University (photo of Ken and Renee in front of the Hoover buildings), working on a short book manuscript tentatively titled "United Nations reform and the Limits of Global Governance," to be published by Rowman and Littlefield/Hoover Institution next year. The book is really a sort of extended essay between hard covers on the conceptual contradictions involved in serious UN reform and arguing, in effect, that UN reform at the level of the trees depends on how one sees the forest, which is really the forest of global governance. Your vision of global governance will powerfully influence how you see UN reform. So it is tying together a sort of grand conceptual discussion of global governance with a certain amount of nitty-gritty work on the details of UN reform as is now under discussion at the UN.

I've tentatively set out a number of contradictions in UN reform, centered around the question of sovereignty-democratic sovereignty-liberal internationalism divides as the heart of debates over global governance. I've tentatively divided these into two broad categories - good guys versus bad guys, and good guys versus good guys. What I mean by that division is that there are certain unavoidable controversies that arise in an organization that accepts good guys and bad guys at the same table - the Human Rights Commission is one such, but there are others, all fundamentally arising from the fact that an organization that accepts the good and the bad always has deep moral limitations. On the other hand, there are also certain unavoidable controversies that arise from the differences in vision even between the good guys - competing visions of global governance. UN reform has to begin from the understanding that some of these controversies are intractable - some of them good guy versus bad guy controversies and some of them good guy versus good guy controversies - and cannot be made to go away by artful and diplomatic forms of words. These intractable differences must be accepted as a matter of differences of power and values, realism and idealism, and therefore represent irreducible limits upon the scope, power, prestige, legitimacy, possibilities of action, and aspirations of the UN family of organizations. UN reform is partly about understanding possibilities of reform, but mostly about understanding reform as the acknowledgment of limits.

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Well, that said, the fact is that Stanford is the loveliest place on earth - paradise, with perfect weather, warm and low humidity. To think that a few days ago my family and I were in the decidedly unparadisical weather of DC. The folks at the Hoover Institution are fabulous - it has many interesting people around, but also the ability to lock oneself away with a laptop, or go sit outside in the wonderful weather with a laptop. It's a great place to get around on a bike. It's the kind of place where either you get no work done whatsoever - or else you win the Nobel prize. And people are so ... so civilized here. (I say this as a Californian, but UCLA graduate.) But Stanford feels like everything Adam Ferguson and Adam Smith called for in civil society - a polite and polished commercial people. Best of what David Brooks called the bobos, the bohemian bourgeoisie.

Do I ever have to go home??

Mark Steyn on Sandra Day O'Connor's embrace of foreign law

I realize I put in too much Mark Steyn here, and I confess that it annoys the hell out of me when it turns out that he - nonlawyer, indeed, never went to college - puts the leading problem of foreign law in US constitutional law better than I do:

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A few months later, Sandra Day O'Connor profiled the way ahead for America's constitutional court - EU precedents! I wrote about her strange view of her role in National Review in November 2003:

Did you see what Sandra Day O'Connor said the other day? Swingin' Sandra is the fifth vote on all the 5-4 decisions setting the course for this great Republic, the one the lawyers pitch their arguments to, which isn't as easy as it sounds, given the lack of discernible legal principles governing her erratic pendulum. Clarence Thomas has a sign on the wall of his office: "Please do not emanate into the penumbra." But over at Sandra's pad it's all penumbra: The trick for counsel is figuring, in this constitutional twilight zone, which particular degree of gray tickles her fancy on any given day.

Even so, it comes as a shock to discover that Sandra's now swingin' not between left and right but between the U.S. Constitution and Belgian law. As she told her audience in Atlanta: "Over time we will rely increasingly -- or take notice, at least, increasingly -- on international and foreign courts in examining domestic issues." Doing so "may not only enrich our own country's decisions, I think it may create that all-important good impression."

Until recently, U.S. courts declined to consider foreign courts [this is not quite so - KA]. But, as Justice O'Connor was happy to report, that's all changed: In "the famous or perhaps infamous case" on Texas sodomy she and her colleagues relied on a series of decisions by European courts.

Wow. That penumbra stretches a lot farther than it used to. Speaking as a foreigner myself, I've always found it one of the more charming features of the American scene that "progressives" are obliged to find justification for their radicalism in a piece of old parchment. In Europe, they can simply say: We need to get with the beat, daddy-o. But in the U.S. the Left at least observes the niceties and pretends that the powdered-wig guys had somehow ingeniously anticipated the need for a constitutional right to gay marriage or a partial-birth abortion. Perhaps recognizing that this particular penumbra is pretty well tapped out, Justice O'Connor is now saying that there's gold in them thar Scandinavian hills.

No prizes for predicting which way the emanations are going to go once they take the foreigners into account. In considering the pros and cons of sodomy in Texas, the Supreme Court did not rely on the large body of Nigerian sharia precedents and Taliban jurisprudence in this area. No, the only countries the Supremes seem to have taken under consideration are those in (as Justice Breyer suggested) the Western tradition -- i.e., white Europeans.

Given that this is the court that elevated "Celebrate Diversity" from a bumper sticker to a bedrock constitutional principle, it's a little bewildering to find that they cheerfully accord the white European a unique monopoly on the judicial consultancy positions. Heartening though it is to know the white man still has his uses, this privileged access is, alas, unwarranted. For one thing, the fact that the U.S. Constitution is older than the French, German, Italian, Greek, and Spanish constitutions combined suggests that this member of "the Western tradition" is more traditional than others. For another, can you imagine any judge in France, Denmark, or New Zealand taking U.S. court decisions into account when deliberating on, say, gun ownership or capital punishment?

Let me come at it this way. I love borders, the more the merrier -- town lines, county, state, and, of course, national. Borders symbolize one of the few remaining constraints on government: You don't like the grade school here in town? Move ten miles up the road. You don't want to pay Vermont sales tax? Drive over the river and shop in New Hampshire. Arianna Huffington huffs against "tax loopholes for fat cats," but I'd say the ability to rent a post-office box in Bermuda or the Cayman Islands is a "loophole" in one of the original 16th-century senses -- an aperture to let in light and fresh air. The fact that there's somewhere else to go to is the ultimate limitation on government. Borders give people choices -- and, to put it in a bumper sticker, "I'm Pro-Choice and I Vote with My Feet." When starry-eyed utopians speak of a "world without borders," you can pretty much guess what kind of a place the one-world one-party state would be, with tax rates starting at more than 50 percent, where they are in Sweden right now.

That's why Justice O'Connor's indifference to jurisdictional integrity and partiality to foreigners is not just a kinky fetish but something philosophically incompatible with the job she's meant to be doing. If you wanted to construct the precise opposite of the U.S. Constitution, it would look an awful lot like "international law." The former is a document that limits the state's grip on the people, the latter is designed to ensure they can never wiggle free, no matter where they go. "International law" is the new colonialism, the imposition on the world's peoples of the moral certainties of a remote, unaccountable Western elite -- indeed, one far less tolerant of local customs and culture than the old-school imperialists. The Europeans haven't had much luck imposing their laws on Saudi Arabia and Sudan but, thanks to Justice O'Connor, other backward jurisdictions like Texas and Alabama are about to be whipped into line.
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Srebrenica

There's nothing I really have to add to everything that has been said about the massacre ten years ago. I spent a fair amount of time in Yugoslavia for Human Rights Watch during the late 1980s and early 90s, in all parts of what was then still one country, from Slovenia to Kosovo. I was present at a number of Milosevic rallies in Serbia, and travelled with Jeri Laber, the head of Helsinki Watch, to some demonstrations that turned out, seen in retrospect, to have been the beginning of the Croatian phase of the war. We were present at police stations and armories looted of their weapons that started getting real use not long after; we drove late one night through the Croatian countryside, finding trees downed across the roads. I spent many, many hours with nationalists in Croatia and Slovenia and Kosovo urging breakup and many, many hours with the polished, travelled, cosmopolitan Yugoslav intellectual elites that feared breakup more than anything else.

I must have been young and very naive - I never really believed, until the fighting started in earnest, that all this would lead to open war, and then massacre, ethnic cleansing, Srebrenica, and the rest. I heard the warnings, but it all seemed unreal to me. Yugoslavia seemed far too civilized. I don't just mean its intellectuals and elites - I spent much time talking to peasants and farmers from all over the country, and they no more seemed likely to get into a fratricidal, genocidal war than northern and southern California.

The Serbs before the fighting started and even once it was going? When I saw the crowds at the Milosevic rallies in Belgrade, they struck me not so much as inflamed as sullen. And the sullenness I took, I now see, as essentially passive. But it wasn't. It was sullennness that blossomed into a very active resentment, that expressed itself in violence of an extraordinarily deliberate kind - not the explosion of mad political passion, but instead a cold blooded, cold hearted decision about what was "necessary." There was that strongly "logical," "necessary" sense on the Croatian side in the early part of the war, too, that created the conditions for their own acts of ethnic cleansing, yes. But on the Serb side the resentment seemed much more a force. It reminds me, today, of the attitude of one of those racist Italian football hooligan groups (someone wrote a book about them), who sing their theme song, "no one likes us, we don't care." Which is essentially resentment and sullenness, but passive - until you give them a bunch of automatic weapons.

The late Christopher Lasch wrote, in his last long book, The True and Only Heaven, in favor of a certain form of populism. He praised it for representing the relatively good sense of the common man against elites that would remake and remake and remake him according to their passing, authoritarian and often totalitarian fancies. He was, however, well aware of what populism, in the hands of demogogues, can lead to. So he spent a good deal of time in that book arguing for what he called the "spiritual disciplines against resentment." The resentment he had in mind was, I believe, very close to the resentment that I sensed so strongly among the Serbs who backed Milosevic. There were no disciplines, spiritual or otherwise, to defang, temper, and denature that resentment in Serbia. It is the same resentment, too, that seems to animate Muslim extremists today.

The Israelification of Europe - Mark Steyn

Mark Steyn argues in the New York Sun, here, that Europe stands at risk of gradually becoming the new Israel with respect to the Muslim world:

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I mean by Israelification: the jihadists understand that Europe is up for grabs in a way that America isn’t. Israel/Palestine is,in the old joke, the twice promised land — a western democracy and a disaffected Muslim population exist in (for the most part) two solitudes but claim the same piece of real estate. As it happens, that’s also how more and more Muslims see Europe.

And as their numbers grow it seems likely that wily Islamic leaders in the Middle East will embrace the cause of the rights of European Muslims in the same way that they claim solidarity with the Palestinians. When France began contemplating its headscarf ban in schools, it dispatched government ministers to seek the advice of Egyptian imams, implicitly accepting the view of Islamic scholars that the Fifth Republic is now an outlying province of the dar al-Islam. As the Zionist Entity can testify, that’s not a club you necessarily want to be signed up for.

Few European leaders have a clue what to do about this, but, as that French headscarf law and Britain’s Incitement to Racial Hatred bill and Dutch responses to the murder of Theo van Gogh all underline, mediation between what Tony Blair called on Thursday “our way of life” and Muslim values has already become a central dynamic of European political culture — a remarkable achievement for a minority few Europeans were more than vaguely conscious of pre-9/11. Meanwhile, across the borders pour not primarily suicide bombers or suitcase nukes, though they will come in the end, but ideology — fierce, glamorous and implacable. That’s the final irony of the Israelification of Europe: distressing as it may be to Continental anti-Semites, in this scenario they’re the Jews.
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Anthony Dworkin of Crimes of War Website responds to my earlier post on war or law enforcement

(Sorry about the duplicated photos! I was trying to get a smaller size - I'll work on deleting the big one.)

Anthony Dworkin, a good friend and the superb editor of the Crimes of War website, has posted a comment to the previous post on whether the response to terror should properly be conceptualized as war or as law enforcement. It's an outstanding, thoughtful comment, which I am reposting as a separate post here (I will respond to Anthony and add some additional material here, and if you haven't visited Crimes of War, you should):

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I read this post with interest since I'm writing on this subject myself just now for the Crimes of War website (www.crimesofwar.org).

I agree entirely that the threat to the US from al-Qaeda as displayed on 9/11 was too great to be met with the conventional tools of law enforcement alone. But equally I can't accept the idea that there could in any meaningful (i.e. non-rhetorical) sense be a "war" between the US and al-Qaeda since war has always been understood as a formal relationship between two equal parties with corresponding rights and responsibilities.Is there a middle way between these two extremes? It might help a little to break down the claims that proponents of the "war" view use to back their case.

Here there is a curious aspect of Ken Anderson's argument: all the strategic advantages he ascribes to the war view have been endorsed and vigorously pursued by the British government which has at the same time resolutely refused every opportunity to say it is at war with al-Qaeda (let alone terrorism more broadly).

1) A forward strategy: the UK government has passed legislation to put control orders on suspected terrorists without accusing them of any crime. To do this it derogated from Article 5 of the European Convention on Human Rights on the grounds that the UK faced a "public emergency" from terrorism.

2) An anticipatory strategy: no one has been more consistent that Tony Blair in talking of the importance of preventing weapons of mass destruction falling into terrorist hands, and of course he backed the war against Iraq for precisely this reason.

3) The denial of safe haven to terrorists -- well, Britain was a full backer and supporter of the attack on Afganistan -- again for precisely this reason.All these strategic tools are not at all dependent on any notion that there is a "war" with terrorists -- only that the nature of the terrorist threat is "real and existential" (Blair's words).

There is another argument for the importance of the war paradigm that is sometimes made: that it allows you to treat someone as an enemy simply because of his affiliation with an enemy group, not based on any individual guilt. This is of course meaningful in a conventional war with a regular army but is close to meaningless in the case of global terrorism -- as Judge Green's example of the little old lady in DC District Court showed. A membership criterion that is precise enough to avoid such obviously unacceptable outcomes would probably collapse down to the kind of evidence that could be needed to obtain control orders or similar measures on an individual basis.

Against this, what are the dangers of the war paradigm? Principally, as implied above, that it supposes a situation where the enemy threat is clearly bounded in time and represented by a clearly defined group of people. The dangers of allowing the government to detain indefinitely (or in theory shoot to kill) individuals who in most cases dispute the grounds on which they're being held is simply not acceptable in a society that regards itself as ruled by law.

Finally, I'm not sure I see the force of Ken's argument about terrorists challenging the legitimacy of the society. After all the same would be true of an anarchist political agitator. The argument must also assume that they are in a position to threaten the security of the society whose legitimacy they reject. It is true and important I think that al-Qaeda marks the emergence of terrorism that can pose a threat to national security in line with the threat posed by other states in war. That is why I agree that states harbouring the terrorists or supplying them would be legitimate targets for wars of self-defence. But I can't see why the threat can't be adequately handled by a combination of contained wars against countries that support terrorism and (where absolutely necessary) public emergency measures at home that are nevertheless still in line with the domestic rule of law.
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War or Criminal Law in War on Terror?

London 7/7 has again raised the question of whether acting against global terror is best conceptualized, and best conducted, as war or instead as law enforcement.

My own view has long been - since I first wrote about this in the Times Literary Supplement [pdf courtesy of Bard College of that article here, What Kind of War Is It?: Language, law and terror: Policemen or soldiers: the dangers of misunderstanding the threat to America, TLS, No. 5138, September 21, 2001] following 9/11 - is that it is a matter of war in the first place. But it is indeed a different kind of war - a war involving intelligence assets more than most. Law enforcement is not irrelevant, of course, but it is essentially tactical, not the way strategically to conceive the situation; it was, to be sure, how we did conceive the situation throughout the Clinton years and right up until 9/11, and look what that got us.

But this has been hotly contested, of course, since 9/11, and the London attacks put the debate front and center again.

Consider two diametrically opposed articles on this question, each of them intelligently written by intelligent commentators. The first, by Andrew McCarthy, appeared in NRO, here (thanks, Julian Ku at Opinio Juris; see his commentary on it here). It is the "war" view, straightforwardly so. The second is by the eminent British commentator Timothy Garton Ash, in the Los Angeles Times, here, arguing that it is law enforcement, and that British police were correct to describe the sites as crime scenes.

Of course, treating the sites as crime scenes, to be investigated as crime scenes, need not be inconsistent with a strategy of war, a war of intelligence, and using powers and forces not available to law enforcment, either domestically or abroad. What makes it war is the willingness not to be limited solely to the powers of investigation and action that limit police powers. Timothy Garton Ash - unlike so many American liberals - acknowledges plainly that one cannot have one's cake and eat it, too, and that civil liberties and the ability to gather the intelligence necessary both to prevent and defeat terrorist groups present a classic tradeoff of social goods.

I disagree with many of the places where he draws the line. Garton Ash draws the tradeoff by essentially treating the terrorists as people who must be pursued as though they were ordinary domestic criminals, with all the many rights that the United States guarantees even to criminal deviants. That seems to me fundamentally wrong. There is a distinction to be drawn even between ordinary criminals and those who are criminally at war with a free society - those who have made themselves simultaneously criminals and enemies, enemies at war with free society and yet who further conduct themselves criminally in pursuit of that war. We owe something to criminal deviants within out domestic society that we do not owe to terrorists, and it is that something that marks the limit of what domestic policework and domestic criminal prosecution and process can offer.

What does the "war" view strategically offer?

(1) A forward strategy, one which takes the offensive to the enemy, rather than always being reactive and waiting for the strike, then looking backwards in the manner of a 90s style Clinton-era criminal investigation of terror. As one US military blogger remarked, in the matter of war, away games are always better than home games. A criminal law strategy rules out any anticipatory, forward, or offensive strategy out almost by definition; criminal law enforcement in a settled, legitimate, free society is after the fact, not before the fact - and with ordinary criminals, that's how it should be, but terrorists, alas, are not ordinary criminals.

(2) An anticipatory strategy that looks not only to existing forms of terrorist attacks, but looks ahead to what would be far, far, far worse - the combination of terrorist-rogue state-weapons of mass destruction. One may argue over the Iraq war, or see it as a disaster as Garton Ash does, but its aim at preventing what might well have been, under Saddam or his even crazier sons, the fatal combination, was and is not irrational. Again, the criminal law approach, as strategy, cannot even conceive of something so forward looking - conceptually, it looks for the bad guys after the dirty bomb has gone off.

(3) The denial of safe haven to terrorists. The Clinton administration once in a while was willing to use military force against terrorists - in ways that convinced the terrorists, to be sure, that the US was unwilling to act against them and increased their confidence levels immensely. But it was willing to aim the occasional cruise missile at Al Qaeda training camps, at least when likely to be empty. What characterizes the Bush military strategy is not the willingness to use military force against terrorists, but the strategically far more important and far more radical willingness to use military force against regimes that harbor terrorists, to deny them safe haven (and in this, following on Richard Clarke's notable memo while still in government, I include Iraq, as the place to which, according to Clarke, Osama would finally flee).

Put another way, terrorism is typically (though not entirely) a logistical raiding strategy that targets civilian morale as a logistical necessity in democratic warfighting. As with all logistical raiders - of which guerrilla warfare is a prime example - their ability to fight longterm is enhanced enormously by the ability to retreat to safe bases, bases which cannot be counter-attacked for reasons of technology, geography, or politics. Defeating guerrillas or terrorists usually involves denial of safe havens, and in that regard this war is no different from others. It is the placement of this often politically awkward fact in the front line of policy that the Bush administration has made its stand. Criminal law enforcement cannot begin to contemplate this - conceptually, it has no place in criminal law.

These three are examples of the strategic thinking about the war on terrorism as a war that cannot be conceived within the paradigm of law enforcement. There are others - the fundamental political bet occasioned by the Iraq war, for example, that democracy can be a tool, a wedge, against terror.

And yet this is no besmirchment of the virtues of law enforcement. Law enforcement is about the use of force in a settled, legitimately ordered society, dealing with social deviancy within a society whose fundamental legitimacy is not at issue. Ordinary domestic criminals are deviants from that fundamentally legitimate society and its norms; they do not challenge that fundamental legitimacy even when they act criminally. Terrorists are different; they are a challenge to that legitimacy itself. Challenges to the fundamental legitimacy of a society cannot really be understood or conceived by law enforcement, which presumes that legitimacy precisely in order to be able to restrict and curtail the violence which it is legally entitled to use to maintain public order and peace. Garton Ash says many important things about the virtues of law enforcement, but - wrongly believing that the transnational religious terrorism of Al Qaeda can be modelled on the geographically local terrorism of the IRA - ignores these fundamentals.

(A good place to look for academic discussion of these distinctions is the Journal of Terrorism and Political Violence, edited by my old professor and mentor David Rapoport, and on whose editorial board I've been for a long time.)

All that said, the war on terror is a different kind of war. I recommend highly the short essay by the ever remarkable University of Texas professor Philip Bobbitt in today's Sunday New York Times Week in Review section (behind a registration wall). As he says - writing from London where he was living on 7/7 - this is a war whose strategic concepts shade quickly into political grand strategy, and in which intelligence plays a vital role. Obtaining that intelligence from a local population that has radical terrorists in its midst does require that intelligence officers and police officials have legitimacy with that population, and that requires a belief that the society itself is fundamentally legitimate and that its procedures for dealing with its citizens are fundamentally fair and just - in that Garton Ash is not wrong and is right to demand it.

I also recommend Julian Ku's comments on how the war on terror itself has to adjust to the requirements of intelligence, here.

Thoughts and prayers with the London victims

Thoughts and prayers with the victims of the 7/7 attack. My brother and his wife, who live in Central London and use the Russell Square station frequently, as well as my close friend John R and his family, were all okay.

Mark Steyn on July 4, 2002; Julian Ku on founding fathers as liberal internationalists?

Mark Steyn's July 4, 2002 column, here. (We hosted a bbq for folks on our little DC cul-de-sac; I overcooked the burgers, as usual, visions of e coli dancing in my head, but otherwise things went fine. Also read over the Declaration of Independence with my daughter - the phrase that kept coming back to me, in relation to Steyn's column, is "consent of the governed.")

Julian Ku (photo at left) has a lovely July 4th note at Opinio Juris here - he is concerned about coming off all geeky on a holiday made for pool or beach. Okay, let me join the geeks (my wife and daughter would say no need to join, been there all along). In addition to Eugene Kontorovich's erudite exposition on how the phrase, "decent respect to the opinions of mankind" has morphed into such a meme for liberal internationalism, I expressed my own view of it in part of an article in Policy Review, here, that was actually about foreign law in US constitutional adjudication:

"Jefferson was referring ... not to justification of the practices of a settled constitutional order of several centuries, but instead to a society that was about to undertake revolution, rebellion, sedition, treason, confiscation, secession, and war against its lawful sovereign. The moment indeed warranted an explanation for why all that was justified, in terms that the rest of mankind might understand. Nine generations later, Justice Breyer might more accurately have said that consideration of the opinions of mankind was appropriate at, not from, the moment of the nation’s birth."

Beyond that, the idea of the founding fathers as liberal internationalists must take account of the ever more profound differences in the scope and, really, imperial pretensions of international law - its profound intent to reach ever more deeply into the affairs not merely of states, but of individuals - the very term international law, or law of nations, or any such term, cannot be taken out of the context in which its limitations or expansions are understood. The term did not mean to them what, for liberal internationalists, it means today. To say that the founding fathers were comfortable with the idea of international law is not to say very much with respect to international law today, because it is doubtful indeed that they would recognize what it purports today to mean in the hands of liberal internationalists - or, as the Declaration of Independence would have it, they would not recognize in the imperial claims of liberal internationalism's version of international law "the consent of the governed."

Without much doubt, however, confronted with that vision of unconsented international law, they would recognize Europe, the Europe left behind.

"Comfort Women" ATS case

I've finally had a chance to read the DC Circuit's opinion on the ATS case concerning WWII "comfort women." I agree with Julian Ku' comments on it, at Opinio Juris, here. Excerpt:

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"In an important decision on treaty interpretation and the political question doctrine, the D.C. Circuit yesterday affirmed the dismissal of a lawsuit brought by a number of Korean, Taiwanese, and Filipino women who alleged rape, torture, and other abuse at the hands of Japanese soldiers during World War II. The lawsuit was brought under the Alien Tort Statute and had been originally dismissed by the district court on sovereign immunity grounds. The Supreme Court remanded, however, for reconsideration and the D.C. Circuit has a new reason for dismissal: "the case presents a nonjusticiable political question: namely, whether thegovernments of the appellants’ countries foreclosed the appellants’ claims in the peace treaties they signed with Japan."

"As I've noted earlier, Japan is still facing serious fallout in Asia from its WWII behavior, especially in S. Korea and China. And my own belief is that Japan is still responsible in some way for the serious crimes their army committed in the WWII. But, as a legal matter, both Korea and China (and Taiwan and the Philippines) may have waived any claims by their nationals via peace treaties with Japan.

"What is interesting here is that the D.C. Circuit refused to resolve whether or not the claims have in fact been waived by the treaties. Instead, it has invoked the always murky "political question" doctrine to dismiss the case on the theory that interpretation of the treaties here would interfere with the executive's conduct of foreign affairs. Usually, the question of treaty interpretation is a matter of deference to the executive branch's interpretation, at most, but here the D.C. Circuit went farther. It noted that if it adopted an interpretation of a treaty between two other countries like a treaty between Japan and Korea, it might unduly upset foreign relations with one or both of those countries."
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Martti Koskenniemi's From Apology to Utopia to be reissued in December 2005

A former student of Martti Koskenniemi's has posted a comment that notes that the very great theoretical work of international law, From Apology to Utopia, is to be reissued in December 2005. I wasn't aware that it was difficult to find for purchase, as I've had the same copy since it first appeared. But for those coming to the field in recent years, this is good news.

I should also add, re the comment, I'm not sure that "sociologist" is the the best way to describe the iconoclastic Koskenniemi, either. I chose it not so much in the technical sense of sociologist, but to emphasize that Koskenniemi is studying the profession itself, as something that professes, and not merely examining the intellectual contents that it produces. Social theorist of international law might be a better way to put it - but clearly, Koskenniemi is doing something more than international law as such, more than an intellectual history of international law as such - the third layer in his work, the most important, connects to the actors qua actors, and not simply to their intellectual products.

My thanks for that comment - it caused me to think more deeply about how to catergorize Koskenniemi's work:

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"I agree with many of your comments on Martti Koskenniemi, a brilliant theorist and intellectual historian (and my dissertation advisor) who somehow balances the practical commitments of an international lawyer with meta-theory. I would quibble with your assessment of him as a "sociologist" however, since he seems to struggle to put vocational concerns front and center.

You will be happy to hear that last I checked Apology/Utopia, which has been notoriously difficult to find, is set to be reissued in Dec. 2005."
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David Rieff on what Live Aid wrought in Ethiopia 1985 - a warning flag

The ever astute, often contrarian David Rieff - friend and co-author - has an important essay, Dangerous Pity, in Prospect magazine, July 2005, pointing out the unintended horrors created by Live Aid 1985. Here. Excerpts:

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"[Subtitle:] The millions donated to Ethiopia in 1985 thanks to Live Aid were supposed to go towards relieving a natural disaster. In reality, donors became participants in a civil war. Many lives were saved, but even more may have been lost in Live Aid's unwitting support of a Stalinist-style resettlement project."

"Isn't it better to do something rather than give in to despair or cynicism and do nothing? This is the reproachful question familiar to anyone who has criticised organisations that view themselves as dedicated to doing good in the world. To those UN agencies, relief organisations and development groups working in crisis zones from Afghanistan to Aceh, any "non-constructive" criticism, especially the kind that implies that it might have been better for the would-be Samaritans to refrain from acting at all, is so much nihilist piffle. Edmund Burke's dictum that for evil to triumph all that is required is "for good men to do nothing" (a favourite quotation of Kofi Annan's) encapsulates this view. The standard argument is that to do nothing is to acquiesce in whatever horror is unfolding, from Saddam Hussein's Iraq to the mass killings in present-day Darfur. Whether it derives from the missionary impulse, so ingrained in western culture, or the purported lesson of the Holocaust—"never again"—this view of what the American legal philosopher John Rawls called "the duty of assistance" has become virtually unassailable. Yet an alternative case can be made: in the global altruism business it is, indeed, sometimes better not to do anything at all.

"Of course, those who believe it is always better to do something tend to believe that the negative consequences of their action arise from not doing enough. The most frequently heard complaint of activists is that western countries, both on a government and a popular level, remain too indifferent to the crises of hunger and debt that make life hell for several billion people. For most activists, the appropriate question does not concern the value of action, but rather how to mobilise people and focus pressure on the governments of rich countries so that more gets done. For over 30 years—as long as humanitarian action has been a principal response in the west to the crises of the poor world—a favourite metaphor has been to "wake people up" to what was really going on. Thus, in the Guardian in July 2004, the paper's media correspondent, Matt Wells, could write that the reporting of the BBC's Michael Buerk in 1984 had "woken the world to the famine in Ethiopia." The particular nature of the "wake-up call" in question was that Buerk's reporting got picked up by hundreds of media outlets the world over and is generally agreed to have inspired the Irish pop singer Bob Geldof to launch his Band Aid and Live Aid charity projects on behalf of famine-stricken Ethiopians. (Band Aid was the name of the group set up by Geldof and Midge Ure in 1984 to perform the single "Do They Know It's Christmas?" which raised around £8m. The Band Aid trust then organised the Live Aid concerts in July 1985—held at Wembley stadium in London, the JFK stadium in the US and and several other international venues. The total sum raised is said to be between £50m and £70m.)

"Activists who bemoan what they see as the selfishness and self-absorption of life in the rich world often point to Live Aid as a sign of how compassion fatigue can be beaten. In the words of one aid worker: "Humanitarian concern is now at the centre of foreign policy. We may not have an ethical foreign policy, but no political leader can fail to respond to the humanitarian constituency. Bob Geldof deserves a lot of credit for that."

"This is certainly Geldof's own view. He believes that the Live Aid "experience" was a profound social innovation that helped to shape the views of those western politicians who have shown real interest in addressing the crisis of development, above all in sub-Saharan Africa. As he put it late last year: "We have a Live Aid prime minister who sat in and watched it on TV all day. Tony Blair and Gordon Brown are served notice that Britain, through its greatest artists, wants the situation [poverty and famine in Africa] changed."

"That said, Geldof, to his credit, has bridled at all the "Saint Bob" talk that has surrounded him since Live Aid days, and has often insisted that it was a disgrace that he had to carry the torch for Africa. But Geldof was, and still is, more than just a campaigner. His view of what Live Aid accomplished—and his critique of what has happened in Africa since the 1980s—is so mainstream that Geldof was not only made a member of Blair's Africa Commission (along with the current Ethiopian prime minister, Meles Zenawi, and 15 others), but even sat next to Blair when the commission's report was launched on 11th March.

"For many relief professionals who work in the field, media coverage and the involvement of celebrities has always been crucial. This is hardly the way the relief establishment would wish things to be, but it is the seemingly unalterable reality of contemporary celebrity culture to which they have largely reconciled themselves. "Ethiopia would not have got the attention it did without Live Aid," Joanna Macrae, the former co-ordinator of the humanitarian policy group at the Overseas Development Institute, acknowledges. Macrae, however, has grave reservations about what she has dubbed "quick, loud responses." Such notes of scepticism are in short supply. Bob Geldof might say on television at the time, "just give us your fucking money," and justify the demand with his oft-stated line that "Live Aid was about people losing their lives." But every seasoned aid worker knew at the time, as they know now on the eve of Live 8, Geldof's long-awaited successor to Live Aid, that there is no necessary connection between raising a lot of money for a good cause and spending that money well, just as there is no necessary connection between caring about the suffering of others and understanding the nature and cause of that suffering.

"And yet, as the excitement about the latest Live 8 concert in support of debt relief for Africa has shown, Live Aid became the prototype for a new style of celebrity activism—from Richard Gere campaigning for Tibet to the proliferation of benefit concerts for the Asian tsunami. Live Aid also pioneered the idea of the pop star as interlocutor with government officials. In the wake of the 1985 concert, Geldof went to see Margaret Thatcher and, by his account, it was he who did the lecturing about what was to be done in Ethiopia. Anomalous in the 1980s, such meetings are now routine.

"But did the mobilisation of public opinion through celebrity endorsement really play the positive role with which it is now credited? To ask this question is emphatically not to turn hagiography on its head and to demonise either Geldof or Live Aid. There is no smoking-gun evidence demonstrating that Live Aid achieved nothing, or only did harm. But there is ample reason to conclude that Live Aid did harm as well as good. It is also arguable that Live Aid may have done more harm than good."

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Critique of Live 8: Simon Jenkins & Niall Ferguson & Mark Steyn

(Update, July 5, 2005: Actually, the most blistering and the best is Mark Steyn, here, from the Daily Telegraph.)

Not everyone is entranced by Live 8. I have mixed views, although they lean heavily towards the critique by Niall Ferguson (photo at left) that appears below. However, here is one of the most trenchant and blistering, by Simon Jenkins in the Sunday Times of London, Sunday, July 3, 2005. Excerpts:

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"Live 8 is clearly an echo of Live Aid, Geldof’s money-raising spectacular for Ethiopian famine in 1985. Live Aid was a spontaneous response to what television presented as a crisis. Its outcome has been hotly debated, most recently by David Rieff in this month’s Prospect magazine. Showering money, trucks and food on Mengistu’s Ethiopia entrenched a vicious regime and aided one of the most cruel forced migrations in history. Ethiopia was never short of food.

"Live 8 seems to acknowledge this critique. The £20m it raises will go not on poverty but on itself. Not a penny will go to Africa. Indeed a potential fundraising opportunity, which might at least have bought a planeload of anti-Aids drugs, has become an exhibition of high-tech media co-ordination and a celebrity fiesta. Geldof has given up on money. He rephrases Lennon’s “All you need is love” as “All you need is awareness”.

"All this asks to be taken seriously as politics. So let’s do so — and as more than background schmooze for Blair’s G8 spectacular at Gleneagles. The G8 is not a decision-making body but a “conversation” between rich nations. It has no constitution and no executive. The United Nations, not the G8, is the proper forum for collective action onworld poverty.

"Targeting the G8 is in truth a hangover from 1960s left-wing agitprop, which held that the evils of the world were due to capitalism and colonial exploitation. Conventional wisdom was to dump the West’s surplus savings and produce on Africa, and then to wail when the continent was predictably corrupted. At a rough estimate some $500 billion was tipped into Africa over the past 40 years. Most observers maintain this contributed to political instability and a negative growth rate.

"Geldof disagrees. He is a big-time interventionist. He claims legitimacy not by democratic mandate but by the dubious franchise of rock concert attendances. He tells his audiences that they do not need to give money or think. They can feel better just by chanting a mantra like monks. Awareness is self-defining. It accepts no responsibility for any political outcomes. Blame is transferred to elected politicians.

"Buried behind these antics are two strongly contrasting arguments. Live 8’s demand is apparently that governments should up the Sixties game and assume the mantle of global welfare. Voluntary giving to charity should become compulsory. The humanitarian urge should be nationalised. In addition, outcomes do not matter. Geldof is quoted in the International Herald Tribune as claiming that something must be done “even if it doesn’t work”. For him, doing something useless even if harmful is a moral advance on doing nothing.

"On this argument it does not matter if the West merely gives money to power. Too bad if it distorts markets, inflates currencies and depletes incentives. Too bad if, as an IMF report suggested last week, aid does not lead to higher growth in most of Africa and possibly the reverse. In Ethiopia Geldof appeared to agree. Aid must somehow trickle down from power to poor. Hence the continued demand to “double aid”. It is like the Pentagon strategy for bombing Iraq. Some of it must hit a target.

"The second argument responds to this implied criticism by demanding that aid be “smart”. It should be conditional on countries engaging in political and economic reform, as according to George Bush. Aid should go only to those who mean to help themselves. Africa should be a continent on workfare. There should be no subsidies to corruption. Aid is a tool of the global democratic crusade.

"Thus one speaker last week demanded that debt relief — aid by another name — should depend upon monitored elections, anti-corruption courts and “green” audits. All this would need the revival of Africa’s old ruling class, the unemployed offspring of Europe’s rich. The Lugard tradition of Britain’s indirect imperialism returns as expatriate NGOs in white 4x4s.

"I go along with neither argument. Yet my response is unlikely to be heard amid the din. If $500 billion has done Africa more harm than good, how can doubling it possibly do more good than harm? We know that aid induces dependency. The idea of aiding only those governments of whose policies we approve is what happens when charity is nationalised. It denies the humanitarian imperative, which by its nature is ad hoc and personal.

"Helping only those that help themselves is a contradiction in terms. A child dying on television may be distressing, but children are dying “off television” the world over. Western peace of mind may be a worthy goal of policy, but it cannot justify a new age of imperialism in Africa."

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(Update, Sunday, July 3, 2005: See also this excellent critique by Niall Ferguson, in the Sunday, July 3, 2005 Daily Telegraph, here. Note his comments on Sachs and on the naivete of the Live 8 enthusiasts:

"It may come as a surprise to Live 8 fans, but the top three reasons why most African countries are economic basket cases are not lack of aid, excessive debt service payments and protectionism by developed countries. They are in fact chronic misgovernment, recurrent civil war and the high incidence of diseases such as malaria and Aids. It is just possible that more aid, debt relief and freer trade could mitigate these problems. But experience is not encouraging.
Between 1975 and 1984, real net aid from the Organisation of Economic Cooperation and Development to Sub-Saharan African countries grew at a rate of nearly 8 per cent, two and a half times faster than in the past 10 years. Yet African growth was 2 per cent a year, compared with more than 3 per cent since 1995. With the exception of the compulsively optimistic Jeff Sachs - Bono's new best friend - most economists today acknowledge that higher growth in Africa will only come when there is real political reform in countries such as Zimbabwe, and real peace in countries such as the Congo.

"Will Live 8 put pressure on Robert Mugabe to step down? Will it put pressure on Congo's warring factions to lay down their arms? Hm, that's funny; those demands don't seem to have made it into Sir Bob's manifesto. And it's easy to see why not. It's so much more satisfying for the Jellybys to make believe that Africa's woes are the responsibility of those "eight (white, terminally uncool) men" who lead the G8 countries.

"So yesterday's feel-good / do-good extravaganza was fundamentally misconceived. But it was also - and hence my allusion to Dickens - deeply anachronistic. A century ago, it made some sense for Victorian Britons to believe that they could help Africa. Britain in those days was the workshop of the world - the first industrial nation, but also the first financial nation.

"Britain was in a position to do more than dispense aid to Africa. British warships stamped out the Atlantic slave trade. British capital built the railways and ports that encouraged more benign kinds of trade, not to mention the mines that remain central to South Africa's relative prosperity. British missionaries built an impressive network of schools."
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Views on foreign law in US constitutional law - questions for Supreme Court nominees

One lurking question in the Supreme Court appointment fight is where any of the possible candidates stand on the question of foreign (and unratified international) law in US constitutional adjudication. As numerous previous posts on this blog have argued, it is an absolutely essential question of judicial philosophy, and one in which the President has a chance to change the Court's direction, given that Justice O'Connor has been a strong proponent of the trend. Yet I have read nothing that gives any indication of where possible nominees stand on this vital matter.

Charles Krauthammer's "Realist Neoconservativsm"

Charles Krauthammer has an intriguing essay in this month's Commentary, titled "The Neoconservative Convergence," here.

Krauthammer argues that during the Bush I, Clinton, and Bush II administrations, we have seen unusually clear examples of three different visions of foreign policy in action - classical realism during Bush I, liberal internationalism under Clinton, and neoconservatism in Bush II.

The account of the differences between those visions - or ideologies, if you will - are striking in Krauthammer's essay. Still more striking, however, is his description of two different strands of neoconservatism emerging and now, he says, converging. The first, neoconservative idealism, is the progeny of the movement's original thinkers - idealists about democracy. It is given full voice in Bush's second inaugural speech and in his London speech - an idealistic commitment to backing democracy around the globe, and a break with the past of stability and accommodation to American friendly dictators. (I agree with Tod Lindberg of Policy Review that the second Bush inaugural speech is one of the clearest, finest statements of American ideals in foreign policy since the Second World War.)

Yet, as Krauthammer points out, the main architects today of Bush II's neoconservative foreign policy - its press for democratization - are people with no roots in neoconservatism - Cheney, Rice, Rumsfeld. They are all realists by temperment and decades of practice. September 11, however, changed the terms of realism, made it clear that realism, and its emphasis on stability and accommodation, would no longer protect America, and that the new realism would have to take idealism as its core. Moreover, the existing realist stability was precisely that which was producing the terrorist threat to America and elsewhere, and it was that which had to be challenged. Hence, from realism, idealism.

But the new neoconservative realists have not forgotten their realism, and it tempers their approach to Saudi Arabia, Pakistan, and Egypt (and, quite wrongly, in my view, Uzbekistan at this moment). In this, it takes into account both American interests in the short and medium term, in the war on terror, in energy security, and so on, on the one hand, and the lessons of Jean Kirkpatrick's "dicatators and double standards" from the Reagan years, on the other. This new neoconservative realism converges with neoconservative idealism in putting democracy front and center, but treating it as a goal to be achieved, not a revolutionary ideology.

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(I would add to this that neoconservatism is distinguished from liberal internationalism in no small part because of its emphasis on human freedom as expressed through democratically sovereign states, rather than the liberal internationalist ideology of top-down human rights, which as ideology is remarkably uninterested in democracy as such.)

(Update, July 1, 2005: Arnaud de Borchgrave, writing in the Washington Times, here, gives a conservative realist's aggressive thumbs down to the democracy ideology.)

Reviews of Jeffrey D. Sachs' The End of Poverty

(Update, Friday, July 15, 2005: See also Roger Bate's very critical review in the Weekly Standard, here (sub req'd).)

Jeffrey D. Sachs' celebrated new book, The End of Poverty, has been reviewed nearly everywhere, of course, and I've tried to keep up with reading them alongside the book itself. The two reviews I have found most interesting are found in the Economist magazine and in the Times Literary Supplement.

The Economist's (anonymous) review is particularly helpful to those unfamiliar with the field of development economics; it is a programmatic, hard-headed review, here. It is enthusiastic about Sachs, the book, and its recommendations, with some reservations (which I entirely share):

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IF JEFFREY SACHS, itinerant adviser to poor-country governments, scourge of the International Monetary Fund, head of Columbia University's Earth Institute, United Nations' expert of choice on third-world development, and much else besides, were ever to retire (an improbable scenario, admittedly) statistics would show a perceptible downward shift in global output. The man's productivity is staggering. No sooner has the UN published its huge new report on the Millennium Development Goals, drawn up under Mr Sachs's supervision, than the phenomenon is in print again. With typical moderation, Mr Sachs has entitled his new book, “The End of Poverty”.

The book is an unusual and in some ways slightly odd mixture of personal memoir, economics textbook and development manifesto. There are chapters of economic history and analysis. These serve as a lucid introduction to the theory and practice of development. Mr Sachs tells of how he learned his business as an adviser in Bolivia, Poland, Russia, India, China and Africa—a fascinating story in its own right. In its second half the book shifts to an extended argument for new approaches to confronting disease and extreme poverty in the developing countries, and especially for far more generous aid.

Aid can work, the book argues fervently, but you have to think big. Even when conditions are such that aid is likely to succeed (when standards of governance are adequate, when supporting policies are in place, and so forth) rich-country governments have been mean, fickle and short-sighted about aid. Find those cases where aid can work, says Mr Sachs, spend generously, and sustain it. This central point is persuasively hammered home.

To be sure, the virtues of the book vastly outweigh its failings, just as the virtues of Mr Sachs dwarf his. Book and man are brilliant, passionate, optimistic and impatient. But Mr Sachs is not, as he sometimes appears to think, the developing countries' only hope. And he tends too often to accuse people who disagree with him of bad faith. Many of his economic conclusions are contested. Some people who are less keen than he is to spend more on aid may care just as much about poverty. Not everybody who thinks that corruption is widespread in Africa, and that corruption renders aid ineffective, is racist. “Pessimism about Africans' ability to utilise aid is very deep, reflecting an amazing reservoir of deep prejudices. I have heard those prejudices for years and have come to expect them, always with sadness.”

Not just with sadness, actually: people who disagree with Mr Sachs also make him angry, weary and disgusted. The author believes he is fighting not merely error but also widespread immorality. That is an odd stance for a man to take, who has himself often been unfairly accused of caring nothing for the “victims” of his policies.

The book is mostly clear and hard-headed about what works in promoting economic development. But it is briefly marred by some pretty soft-headed stuff about the evils of unilateralism, the war in Iraq and the moral and intellectual failings of the Bush administration. Mr Sachs states these views as though they follow from his hard-learned economic wisdom—which of course, whether right or wrong, they do not. On the other hand, Mr Sachs is far too kind to anti-globalisation activists, applauding their fervour and conviction while gently disagreeing with their policy ideas, which in fact he regards as ignorant and ruinous (why not extend the same courtesy to the Bush administration?).

And, frankly, it is difficult to forgive his invitation to Bono to write the introduction to the book. Describing his experience of campaigning with Mr Sachs, the Irish rock singer recalls, “I would enter the world of acronyms with a man who can make alphabet soup out of them. Soup you'd want to eat. Soup that would, if ingested properly, enable a lot more soup to be eaten by a lot more people.” Sorry, even if it sells more copies of this otherwise outstanding book, publishing such drivel cannot be right.

[Other Economist magazine links:

Recasting the case for aid Jan 20th 2005, Debt and development Economics, The UN’s Millennium Development Goals were drawn up under Mr Sachs’s supervision. He heads Columbia University’s Earth Institute.]

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The second review is much more complicated in its approach. It appears in the Times Literary Supplement, June 24, 2005, No. 5334, pages 3-4, "Band of Hope: Players From the Past Whose Spirits Should Rule the G8," by Stein Ringen, Professor of Sociology and Social Policy at Oxford (currently available online here, although not necessarily permanently).

Ringen takes the Sachs' book together with a new book by Garth Stedman Jones, An End to Poverty?: A Historical Debate - and this move to consider the most contemporary issues in international development theory and practice in the context of the centuries long debate over poverty gives Ringen important space to consider Sachs' proposals and programme against, especially, the Enlightenment legacy of Tom Paine and Antoine-Nicolas de Condorcet. Paine and Condorcet, Ringen tells us, gave a counter theory, an Enlightenment theory of progress, to the assumption during pretty much the rest of human history that poverty is permanent. Or, as Jesus put it, "Ye have the poor with you always." Ringen says:

"Through human history, poverty has been seen as a normal, natural, obvious and unavoidable fact of life. A counter theory, though, emerged only 200 years ago when the idea of societies without poverty was invented. Poverty, it was suggested, is unacceptable and something that should and could be made away with. We are entitled to call that an invention. It was an idea that had not previously been thought. The inventors were Tom Paine in Britain and Antoine-Nicolas de Condorcet in France. They took their political inspiration from the great Revolutions in America and France, and their intellectual inspiration from Adam Smith, that champion of freedom and justice. A battlefield of ideas was thereby opened up between the old – poverty is obvious – and the new – poverty is unacceptable. Two centuries on we are still fighting the same battle ...

"Paine and Condorcet were evolutionary optimists and saw history, at least post-Revolution, as a march of progress. The elimination of poverty was for them, writes Gareth Stedman Jones in An End to Poverty?, “part of a pitched battle between enlightenment and the receding powers personified by the aristocracy and the established church”. Their invention contained not only an idea but also a programme. Poverty would be eliminated by a political management of the economy so as to redistribute its surplus to everyone. Both drew up detailed blueprints of what we now call the Welfare State."

It is the idea of the welfare state that Ringen draws out of Paine and Condorcet and deploys against Sachs. It is the most original move in the essay - and indeed the most original in any of the reviews I have read. It is also, it seems to me, the most originally wrong-headed. Sachs, Ringen correctly says, is concerned with economic development, the creation of opportunities for the poor. Aid, on this model, is a means by which to produce opportunities which the poor are then able to make use of. It is not, emphatically not, intended to be the redistribution of the welfare state; income transfer from rich to poor is not the end of development policy, but merely a means by which to create conditions by which the poor can leave poverty. Sachs, whatever the weaknesses of his programme, understands that global development strategy cannot be done on analogy with income transfers within a welfare state. The world is not Sweden. "Not even Sachs," Ringen correctly says, "has really accepted the [welfare state for the world] idea as Paine and Condorcet proposed it."

To my mind, this is precisely what recommends Sachs' approach, despite my many disagreements with the programme in its details. It is thus precisely what disturbs Ringen - Sachs has not drafted Beveridge's Report on Social Insurance and Allied Services (1942) that created the British welfare state. Hence Ringen's repeated concern that rich countries have not come close to meeting the supposed target of 0.7% GDP in official development aid - it is an indication of the unwillingness of rich countries to even begin a modest amount of income transfer from rich to poor at the official level. If, by contrast and contra Ringen, you start from the assumption that aid is a means to an end, then the 0.7% goal does not really mean very much - and for that matter, it was an arbitrary figure pulled out of the air back in the sixties and bears no relation to what development might actually cost. My feeling is that it is probably more than that, and Sachs would surely agree. But the point is that income transfer is not the point of a development programme.

Nevertheless, Ringen has written a compelling essay that is well worth reading, on two books that are well worth reading.

A final thought. Lurking behind Ringen's critique of Sachs on the basis of Paine and Condorcet is an unacknowledged premise - that there is no real difference between what goes on within a particular society and particular country and state, and what goes on in the world as a whole. Because Ringen admits of no principled difference, he thinks, therefore, that Sachs should be proposing a global welfare state as though the world were a society in which something like a global Beveridge report could make sense. The world is not unitary in that way, however, and on practical and ideal grounds it makes little sense to think of solutions such as the welfare state that are tied to, well, a state. Ringen nowhere acknowledges this issue in his own critique. (Cf. Michael Walzer, Spheres of Justice.)

French books on the EU Constitution vote

The Times Literary Supplement ran in its June 3, 2005 issue, No. 5331, Page 24, an enlightening review by Robert Jackson, a former British MP, of three French books on France, Europe, and the referendum in France on the EU constitution:

Non, merci:
The battle of the European Constitution (it's about halfway down the page currently)
Robert Jackson

MANUEL CRITIQUE DU PARFAIT EUROPÉEN
Jacques Généreux
165pp. Paris: Seuil. 12euros. 2 02 080332 1

JE VOUS PARLE D'EUROPE
Elizabeth Guigou
320pp. Paris: Seuil. 18euros. 2 02 060044 7

L'HOMME EUROPÉEN
Dominique de Villepin and Jorge Sempru
239pp. Paris: Plon. 18euros. 2 259 20269 1

Jackson's graceful account of the three books is a very useful exercise for American readers, trying to get a sense of the debate within France itself - the authors are all senior, credentialed members of the French elite - a socialist economics professor calling for "non," a socialist former minister calling for "oui," and the now famous Vicomte de Villepin, a neo-gaullist calling for "oui."

Jackson stresses that whatever the differences in their political conclusions, all the authors all share three fundamental assumptions: "[A]ll are agreed that Europe’s problem is essentially an institutional one – that the European project is the indispensable political project of the twenty-first century – and that France must have the dominant voice in the working-out of this project."

By "institutional," Jackson and the authors mean the "ever closer union" within unified, federal political structures, resulting in what Genereux describes (and all would agree to) as the "reinforcement of political cooperation and social harmonization from above." Genereux and de Villepin agree that the way forward is through closer union of the "hard core" original six states, pushing political and economic integration around the French-style social model, to cut off the possibility of further encroachment of the dreaded Anglo-Saxon market model. As Jackson puts it:

"[E]ven the sympathetic reader from outside France will ask, impatiently, what sort of economic policy all this new process should aspire to deliver. Généreux is clear – he wants an end to the European market economy. De Villepin, a typical foreign minister, diplomatically passes over the question. Guigou wants “a new growth pact” – a Keynesian reflation backed up by sectoral industrial policies. There must also be staunch resistance to “the winds of liberalism and diminution of the social”.

But [Guigou] notes apprehensively that these winds “are blowing ever more strongly in Europe and the world”, and she also remarksthat one of the reasons for the failure of economic co-ordination in the 1990s was that “the economic and financial ministers were . . . suspicious of positions which were too ‘political’ in relation to economic and financial orthodoxy”. In other words, despite the authors’ agreement about the importance of European institution-building must be put the fact that there is no similar agreement about what the European institutions should actually be doing. This uncertainty did not go unnoticed by the French electorate, and must have contributed to the No vote. What, after all, is the point of paying for a new car if you do not know where to drive it?"

The other crucial meeting of minds between these authors is the indispensability of the European project to the world as a whole, and France's indispensable role in leading it. The implications for European foreign policy are nothing short of - well, fantastical:

"The other big point on which all the authors agree is that “Europe” is an indispensable project, and that France is indispensable for Europe. Indeed, the two points are interrelated: the point of Europe is precisely that it is a French project, embodying, we are assured by the Vicomte de Villepin, “the values of 1789”. This became the chief selling point in the Oui campaign. But an important reason for the victory of the Non was that the French feel, quite realistically, that the terms of trade have now turned against them: that Europe has become less a vehicle for the export of France than for the import of the rest of the world into France.

This is certainly Généreux’s view. In “consecrating the market society”, the proposed Constitution enforces “the reign of international free exchange” and thus “organizes the economic and strategic impotence of Europe and its submission to the pax americana”. Although he expressly disavows any form of nationalism, there is no mistaking the Gallic flavour of his alternative Europe – anti-American, monocentric, protectionist, ripe for harmonisation par le haut.De Villepin is more explicit – even indiscreet – in his final chapter, where his rhetoric takes wing. “France’s place is at the head of Europe.” “More perhaps than any other country, France poses the question of the European model, social, international, cultural. We do not want a liberal Europe – which would signify the victory of the British vision of Europe as a mere market, as opposed to the political version which has always guided the Franco-German couple”. Europe must move rapidly to become a “power”, “because the great international poles are now being constituted around the American continent and the Asiatic world, [and] the European continent can play the pivotal role if it gives itself the means – especially an ambitious partnership with Russia”.

What heady vistas this conjures up, of a great renversement des alliances – of Europe calling in the Old World to redress the balance of the New. Does this include, one wonders, allying with Putin against the Ukrainians as well as the Chechens, and with the Chinese against Taiwan? Would it impose sanctions on Israel? De Villepin is not a details man, so he does not tell us. Only the negative is clear – he wants to mobilize Europe against America – perhaps even against the whole world of les anglo-saxons.

Compared with this bravura performance, Elizabeth Guigou is a model of sobriety. She asks, “que faire avec les États-Unis?”. The Americans inherit a gene of “messianism” from their “puritan English and Irish” ancestors. They are also prone to unilateralism (unlike the French). Europe must therefore “cease to align its policy with that of the United States”. It must develop a military and political presence independent of America so that the Americans will respect it as “a credible strategic actor” and be constrained to multilateralism. Meanwhile, together, “France and Germany have the capacity to draw the United Kingdom into their train”."

And Jackson's conclusion, regarding Germany, is worth noting:

"Meanwhile, the German side of the “Franco-German couple” looks set for a new government which will want to repair its relations with America and Britain, to look again at costly agricultural policy subsidies to France, and to follow the Anglo-Saxons and the Scandinavians in their successful, job-creating adoption of the more flexible and indeed “liberal” social policies. Jacques Généreux has prevailed in his campaign for a Non. Perhaps his fears will also be vindicated – that Europe is finally caught in “the liberal trap”, and that it is indeed too late for France to insist, “stop the world, I want to get off”."

Kofi Annan's opposition to the Hyde UN reform-US dues bill

(Update, Friday, July 1, 2005: The Washington Post editorializes in support of Condoleeza Rice's call that UN reform not get hung up on what ultimately is likely to prove the least useful and most devisive and least achievable reform of all - enlarging the permanent members of the Security Council. Read it here. Thursday, June 30, 2005, A22.)

Kofi Annan has a long opinion piece in the Friday, June 24, 2005 Wall Street Journal, "United We Stand." (Here, sub. req'd.)

The fundamental point of the piece is to argue against the Hyde UN reform bill, which cleared the House this week (although it lacks corresponding Senate legislation at this point). That bill would condition half of US basic dues to the UN, representing 22% of the basic budget, on fulfilment of various UN reform measures. Most of those measures are part of either the Secretary General or the US Congressional Task Force (the Gingrich-Mitchell Task Force) already, although not all. What the Secretary General opposes - and in this was strongly joined by the Bush administration - is an automatic legislative club to chop off dues if the reforms are not achieved by a certain date. Rep. Hyde has responded by saying, in effect, that the UN only reforms itself under threat of something serious, and money is the only serious tool available; he also criticized high level State Department mandarins who "worship at the altar of the UN" (see my earlier post with quotes from his remarks in the Washington Times).

Annan is correct to say that:

"In Washington, the debate now centers on two documents which appeared last week: the report of the bipartisan Task Force led by former Speaker Newt Gingrich and former Senator George Mitchell, and the Henry J. Hyde United Nations Reform Act, adopted by the House of Representatives.

There is considerable overlap between the two prescriptions, as there is between both and the reforms that I myself have proposed -- or, where they are within my power, am already implementing. That is not surprising. The desire for change is widespread, not only in the U.S., but among many other U.N. member-states, and also many U.N. staff."

With regards to the differences between the approaches (and note that the Gingrich-Mitchell report does not actually say anything about withholding UN dues - it is highly improbable that the Task Force members [I was one of the experts working with the Task Force] could have agreed on language one way or the other), Annan says:

"Where there are differences -- not so much between the U.N. and the U.S., but between the Hyde Act and the other proposals on offer -- these relate essentially to two points: the method to be used to make reform happen, and the global context which makes U.N. reform so important.

For Mr. Hyde and his colleagues, reform can only be brought about by threatening a draconian and unilateral cut in the U.S. contribution to the U.N. budget.

I believe that approach is profoundly mistaken and would, if adopted by the U.S. government as a whole, prove disastrously counterproductive. It would break the reformist coalition between the U.S. and other member-states whose collective pressure could otherwise make these reforms happen.

The U.N. is an association of sovereign states, which agreed, when they ratified the Charter, to share the expenses of the Organization "as apportioned by the General Assembly." The scale of assessment, which determines the share borne by each member-state, is renegotiated every six years; and every year the General Assembly passes a resolution -- invariably supported by the U.S. -- enjoining all members to pay their contributions promptly, in full and without conditions.
The way to make changes or reforms, therefore, is to negotiate agreement with other member-states.

As the Gingrich-Mitchell task force put it, "to be successful, American diplomacy must build a strong coalition including key member-states from various regions and groups . . . many of whom share America's strong desire to reform the United Nations into an organization that works." Such a coalition will not be built by one nation threatening to cut its own contribution unilaterally. Other states will not accept such a "big stick" approach.

Fortunately, the Hyde withholding proposal is not backed by the administration, or indeed by the task force.

Even more important, however, is the global context. The U.N. does not exist in a vacuum, or for its own sake. It is a forum in which all the world's peoples can come together to find common solutions to their common problems -- and, when they so choose, also an instrument with which to pursue those solutions."

***

As I said, the Task Force does not actually take a position on the dues question.

More interesting, however, is how Annan frames the vision of what the UN is. In this particular article, in this context, he frames it as an association of sovereign states.

In other contexts, however, especially if one goes back to his speeches around 2000, to the Millenium Forum and other meetings, especially NGO meetings, it is a much more supranational vision in which the NGOs are the "public" constituency of the UN. The UN becomes the forum not for the sovereign nation states, but instead for the "peoples of the world," unmediated by their sovereign states, but dealing with the UN through "global civil society."

(This particular vision of what the UN was supposed to be hit its high water mark around 2000, when Annan saw the opportunity to present the UN system (in its broadest sense) as the alternative to both rapacious economic globalization and the crazy anti-globalization protests of Seattle 1999 and elsewhere. Then 9/11 took place and, as the very intelligent (even if often wrong) French political commentator Dominique Moisi put it in the Financial Times, suddenly security was back on the table and with it the sovereign state. That left Annan and the high UN mandarins struggling yet again to figure out their role - and, as noted in Annan's comments below, the favored role at the moment is to mediate between the security demands of the rich world and the development demands of the poor world - a crazy conflation, especially if put in the context of terrorism, but more on that later.)

A third vision of the what the UN should be is found looking at newspaper articles (some of which appear earlier on this blog) describing what senior officials such as Malloch Brown see as UN reform. This vision (sometimes described as the "modernist" vision of UN reform) aims to get away from the UN being an association of member states, serving the will of member states, to become independent of (if not immediately "above," in the supranational sense) of member states, directly responsive to something called global public opinion, the international civil society community, and other non-sovereign state actors - and this is what, in this modernizing view, will deal with the problems of incompetence and corruption, which on this view essentially trace back to the malign influence of being an association of sovereign states. Acknowledging the many problems of a sovereign state association and its inherent tendency to incompetence and corruption, it is still all too easy to see why senior UN mandarins and bureaucrats would favor a vision of the UN and UN reform that took the question of legitimacy and accountability out of the hands of nation states including - oh, let us think who - the United States and its extremely nasty Congress, threatening to cut off money.

There is, of course, another way of thinking about UN reform - not very agreeable to UN officials and bureaucrats, and that is to reduce the scope for incompetence and corruption by reducing the aims, missions, vision, scope, and political aspirations of the UN itself. The UN modernizers are right - the sovereign state association model is an invitation to incompetence and corruption. What they don't acknowledge is that replacing accountability to sovereign states with accountability to some loose idea of a global public, or global civil society, or the UN itself is just as much an invitation to incompetence and corruption.

The real issue is that incompetence and corruption on a massive scale are essentially excused by the UN's many apologists because they see those as minor diversions in the long march toward a liberal internationalist dream of the UN as the instrument of global governance. The real way to make the UN work is to scale down those dreams and reduce the UN to discrete tasks measured by technical competence alone. Some of those discrete tasks will be intensely political - peacekeeping and in some cases peace enforcement in failed states, for example. But the grandiose aims - world peace through management by the UN, global governance, grand pacts between the global north and south mediated by the UN - those visions go out the window.

(Keep in mind that these are notes, and not final formulations on the subject.)

***
Annan closes the article by going back to the theme of his own UN reform vision, the linking (in my view very dubious) of security and development, terrorism and poverty:

"Those are very serious threats to people in rich and poor countries alike. The failure of last month's review conference on the Nuclear Non-Proliferation Treaty to address them seems breathtakingly irresponsible. I hope the world's political leaders will now take up the issue, with much greater urgency.

To deal with such issues, we need, among other things, a stronger and more representative Security Council.

But the threats that seem most immediate to many people in poor countries are those of poverty, disease, environmental degradation, bad government, civil conflict, and in some cases -- Darfur inevitably springs to mind -- the use of rape, pillage and mass murder to drive whole populations from their homes.

We can only make progress if we address all these threats at once. No nation can reasonably expect cooperation on the things that matter to it most, unless it is prepared in return to help others with their priorities. And, as the U.N.'s own high-level reform panel pointed out, the different kinds of threats are closely interconnected. Neglect and misgovernment in Afghanistan allowed terrorists to find a haven. Chaos in Haiti caused attempted mass migration to Florida. And poor health systems in poor countries may make it easier for a disease like avian flu to spread spontaneously, or even to be spread deliberately, from one continent to another.
So development and security are connected -- and both in turn are linked to human rights and the rule of law. The main purpose of my "In Larger Freedom" report was to suggest things that can and should be done, by all nations working together, to achieve progress on all these fronts and to make the U.N. a more effective instrument for doing so.

Decisions can be taken this September, when political leaders from all over the world meet at U.N. Headquarters for the 2005 world summit. Over 170 have said they will come, and President Bush is expected to be among them.

The stakes for the U.S., and for the world, could hardly be higher. The opportunity to forge a common response to common threats may not soon recur. It is in that context, and for that reason, that a reformed and strengthened U.N. is so badly needed."

***
Annan is correct that the September summit is an important opportunity. It is not, however, a make or break event for the world - it is not even a make or break event for the UN, which will lurch along no matter what - and it is part and parcel of the too-high UN sense of itself which would represent what will just be, in the end, another meeting, perhaps productive, perhaps not, as a make or break thing for the whole planet. In its own minor way, such language is emblematic of what is wrong with the UN. (Compare the same sort of apocalyptic rhetoric in the language of EU senior mandarins before and, now, after the referenda.)

Which is yet another reason why the US needs a tough minded ambassador (representing US interests rather than fulfiling the Dana Milbank test of a good US diplomat, ie, one who serves the other side) - who, as it happens, is John Bolton.

What Annan does not acknowledge is that UN would be "strengthened" most not by expanding its already gassy and unsustainable vision of itself, but rather by reducing and tightening its scope, vision, aspirations, and expectations. That does not seem very likely to be the result, however, of the September summit.

Reading Richard Posner's Preventing Surprise Attacks

I have just finished reading Judge Richard A. Posner's new book, Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (Rowman & Littlefield/Hoover Press 2005). I highly recommend it to anyone trying to sort through the mess of reforms and reform proposals for US intelligence.

The fundamental message of the book is soberly realistic and frankly pessimistic - Judge Posner concludes that there are strong limits, probably already reached, on what can be done to prevent serious surprise attacks, and that the various attempts to reform US intelligence may solve some problems while simultaneously making others worse.

With respect to the 9/11 Commission Report, Judge Posner says:

"In a misguided quest for unanimity, a determination to use the political calendar, and a public relations campaign to force precipitate action on weakly supported proposals for far-reaching organizational change, the 9/11 Commission, abetted by a stampeded Congress, a politically cornered President and a press that failed to subject the Commission's recommendations to the searching scrutiny that the modern press reserves for scandals, disserved the cause of national security in a dangerous era. It did so by successfully promoting a bureaucratic reorganization that is more likely to be a recipe for bureaucratic infighting, impacted communication, diminished performance, tangled lines of command, and lowered morale than an improvement on the previous system."

The book is especially harsh on the 9/11 Commission essentially buying into reforms as proposed by relatives of the 9/11 victims, as though their tragedies somehow made them expert in the security of the country as a whole.

And with respect to surprise attacks generally - after briefly considering Pearl Harbor, the Tet offensive, and the Yom Kippur war, Judge Posner concludes:

"This gives rise to the following paradox: a surprise attack is likelier to succeed when it has a low antecedent possibility of success and the attacker is weak, because on both counts the victim will discount the danger and because the range of possible low-probability attacks by weak adversaries is much greater than the range of possible high-probability attacks by strong ones." (emphasis added)

(Update, June 29, 2005: See also this Washington Post opinion piece by William Odom, "Why the FBI Can't Be Reformed," June 29, 2005, here:)

"The problem is systemic. No one can turn a law enforcement agency into an effective intelligence agency. Police work and intelligence work don't mix. The skills and organizational incentives for each are antithetical. One might just as well expect baseball's Washington Nationals to win football's Super Bowl as believe the FBI can become competent at intelligence work.

Consider the different organizational incentives. FBI officials want arrests and convictions. They want media attention and lots of it. FBI operatives want to make arrests, to "put the cuffs on" wrongdoers. They have little patience for sustained surveillance of a suspect to gain more intelligence. They prefer to gamble on an early arrest and an intimidating interrogation that might gain a confession. To them, sharing intelligence is anathema. Intelligence is something to be used, not shared. Getting the credit is far more important than catching the spy or the terrorist.

Intelligence officials do not want public attention. They want to remain anonymous. They do not need arrest authority. They want to follow spies and terrorists secretly, allowing them to reveal their co-conspirators. Their reward comes from providing intelligence to others, not hiding it. They are quite happy to let the FBI make the arrests and take the credit."

Corporate liability not in international law, but in ATS cases - notes

In an earlier post, I discussed what is the standard, black-letter law view of corporate liability in international law - it does not exist.

That earlier post (noting the latest Talisman decision) discussed the canonical sources of international law, and pointed out that there is neither juridical entity liability nor, for that matter, civil liability. (This was in the context of quoting from an expert affidavit I had prepared for corporate defendants in the latest, and perhaps last, of the Agent Orange cases.) The question is how, given the unpromising and indeed uncompromising nature of such international law materials, US district courts in a several Alien Tort Statute cases have apparently so easily come to the conclusion that of course there is corporate civil liability. I don't think this is right, as a matter of US or international law, but if one were trying to put the arguments in favor of corporate civil liability as a matter of international law, what would they be? What kinds of arguments are made in the court decisions, party and amicus filings, and academic literature?

Synthesizing down from that mass, and leaving aside the objections that I regard as fatal, the arguments in favor come primarily to three:

First, with respect to corporate liability, there is the approach Judge Weinstein takes in the Agent Orange litigation, and one which figures at least as background in many of the other court decisions. Even though Judge Weinstein says early on in his 230 page decision that he must adopt international law standards, by the time he reaches the corporate liability discussion, he nakedly abandons any reliance on international law and simply says that in American law corporations are subject to liability and it would be a socially really bad thing if it were any other way. It's both American-centric and result oriented all at once. it has the virtue, however, of clearly articulating what is going on, and is a sentiment that with greater or lesser forthrightness appears in some other ATS decisions.

Second, with respect to civil liability, the view seems to be that since the ATS speaks of a suit in tort, essentially once you have a violation of the law of nations, then American law will permit you to proceed in civil tort for damages even if the original violation had to be a violation of the law of nations which could not itself have been civil in nature, at least with respect to individuals, since individuals are subject only to criminal liability in narrow circumstances in international law.

This line of argument will work, however, only with certain kinds of cases against individuals under the ATS - for example, a war crimes violation by an individual giving rise to an ATS tort action. But it won't work for such things as alleging violations, even by an individual, consisting of damaging the environment unless one can (improbably) bring them under war crimes, genocide, etc. Much of what is alleged in the environmental field is in effect an effort to invent, under banner of the ATS, an international civil environmental law, a law which is essentially international tort and which can be directed against private juridical entities. But if you can't get the international predicate which, in the case of non-state-actors, and even if you allow that they somehow include corporations and not just individuals, must be criminal under the narrow categories of international criminal law - war crimes, genocide, etc. - then you can't get an ATS case going in the first place, even if it, once going, can proceed in US tort law.

Third, again with respect to corporate liability, the idea seems to be that the ATS is not purporting to establish international law as such, but instead a special body of ATS-international law, that can have its own special standards, limitations, extensions, etc., which lie in the hands of US judges to develop. ATS-international law just is different from international law, thus rendering the bemused stares of foreign legal specialists such as Greenwood irrelevant. It is, on this view, by its nature an amalgam of US and international law - in some respects, substantive international law but US procedures, although that doesn't really account for how US courts behave.

It is true that the ATS takes international law, on its very face, with certain peculiarities - particularly, the statute itself refers not to treaties, but to treaties of the United States, thus limiting in certain ways the body of international law that a court may consider. There is also an important question of the extent to which US federal courts must, whether for reasons of prudence or prudent respect for executive power in foreign policy or even from Constitutional mandate respect the firmly expressed interpretation of the executive as to the content of international law. And there might be an originalism question - one acknowledged even by the majority in Sosa - that the ATS must be limited to the actions contemplated with respect to international law at the time of its enactment - Blackstone's three conditions, and so on.

But those limitations aside, the language of the ATS refers to the law of nations and treaties of the United States as the applicable body of international law. It does not refer to any kind of special judge-created body of special-purpose international law for purposes of ATS cases. There must be a violation of the law of nations or treaties of the United States - subject to these special limitations - in order to get an ATS case going. That means, at a minimum, that the alleged violator of international law must be the kind of thing that can, under the law of nations or treaties of the United States, be a violator of international law.

Even after reading all these cases, pleadings, amicus briefs, and law review articles, I am still having unbridgeable problems in understanding how one leaps over that gap to arrive at the position that because US law has concluded that corporations must be subject to liability, the same must be true when US courts try cases that require as a predicate a violation of international law. This gap simply seems papered over to me in this voluminous literature - and with the growth of US cases that have already made that leap, no one bothers to make the argument de novo, but simply prefer to cite to the (logically flawed) cases that have gone before.

(Update, July 3, 2005: Here, btw, is a google search by someone who wound up on this blog on the topic of corporate liability for war crimes. Not precisely the same issue - if you talk about corporate liability for war crimes, you are speaking more narrowly than what I address in these posts, because you limit yourself to criminal acts, not civil acts. But it is a useful guide especially to what the buzz among the NGOs is about. One of the better articles in that list is this 2002 discussion of the Unocal standard on aider and abettor liability, here. Also this list of academic articles, at laborstandards.org, here.)