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	<title>Comments on: Limits of International Law</title>
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		<title>By: Nathan Ketsdever</title>
		<link>http://www.outsidethebeltway.com/archives/limits_of_international_law/comment-page-1/#comment-143402</link>
		<dc:creator>Nathan Ketsdever</dc:creator>
		<pubDate>Sun, 26 Aug 2007 00:34:47 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/2007/08/crooked_timber_the_sources_of_international_law/#comment-143402</guid>
		<description>Isn&#039;t research on mininukes in violation of the CTBT?  Although I don&#039;t know if we are actually funding it.  And my understanding is that all that is involved is a &quot;testing moratorium&quot; which is radically different from being in the treaty.  My argument that it increases our hegemony is based on that it locks in our military superiority so that other would-be prolifers (ie india and pakistan, etc) would be detered (norming) from developing nuclear weapons if they sign on.

The ICC...not sure how thats counterfactual.  The current state of affairs is that the ICC has universal jurisdiction, which means that theoretically our soldiers can be brought under it--a system where we help nominate judges and provide other logistical resources seems to suggest that we would have more control over this.  Also, we could help define the norms of what genocide is and not to ensure the system wasn&#039;t abused.  Second, norming non-intervention is good for our hegemony.  Third, if genocide escalates--particularly near oil, SLOCs, or scare resources, thats a threat to our hegemony.  Fourth, the arguments I previously advanced for multilateralism enhancing hegemony.  For instance, multilateralism solves balancing (like people saving shove off in the WTO), solves burden sharing which is critical in a world of scarce resources post-iraq, allows us to have bases for quick deployment, equals information sharing and global collaboration, and the UN/Nato empirical example post WWII.  Also, multilateralism solves the problems associated with overstreach and the pre-emptive doctrine--ie norming the intervention is good &amp; legitimate.</description>
		<content:encoded><![CDATA[<p>Isn't research on mininukes in violation of the CTBT?  Although I don't know if we are actually funding it.  And my understanding is that all that is involved is a "testing moratorium" which is radically different from being in the treaty.  My argument that it increases our hegemony is based on that it locks in our military superiority so that other would-be prolifers (ie india and pakistan, etc) would be detered (norming) from developing nuclear weapons if they sign on.</p>
<p>The ICC...not sure how thats counterfactual.  The current state of affairs is that the ICC has universal jurisdiction, which means that theoretically our soldiers can be brought under it--a system where we help nominate judges and provide other logistical resources seems to suggest that we would have more control over this.  Also, we could help define the norms of what genocide is and not to ensure the system wasn't abused.  Second, norming non-intervention is good for our hegemony.  Third, if genocide escalates--particularly near oil, SLOCs, or scare resources, thats a threat to our hegemony.  Fourth, the arguments I previously advanced for multilateralism enhancing hegemony.  For instance, multilateralism solves balancing (like people saving shove off in the WTO), solves burden sharing which is critical in a world of scarce resources post-iraq, allows us to have bases for quick deployment, equals information sharing and global collaboration, and the UN/Nato empirical example post WWII.  Also, multilateralism solves the problems associated with overstreach and the pre-emptive doctrine--ie norming the intervention is good &amp; legitimate.</p>
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		<title>By: Matthew Stinson</title>
		<link>http://www.outsidethebeltway.com/archives/limits_of_international_law/comment-page-1/#comment-143330</link>
		<dc:creator>Matthew Stinson</dc:creator>
		<pubDate>Sat, 25 Aug 2007 11:17:53 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/2007/08/crooked_timber_the_sources_of_international_law/#comment-143330</guid>
		<description>Nathan, the problem is that the strongest international institutions are organized &lt;em&gt;around&lt;/em&gt; American power, rather than merely having America as a participant, and this is why international institutions that do not directly or indirectly put the US in a &lt;em&gt;primus inter pares&lt;/em&gt; position are weaker.  The WTO may seem to contradict this assertion, but the hegemonic stability theorist would say that because the US is structuring the international market to benefit itself, then the WTO is a tool of the hegemon.

You claim that we would heighten our hegemony with accession to the ICC, but this is a counterfactual in need of more exploration.  (I will also set aside the realist objection to the ICC on the grounds that the forerunner to the ICJ has (a) been horribly slow and ineffective and (b) inevitably applies &quot;victor&#039;s justice.&quot;)  Hegemons are, after all, fairly jealous of their power, and only surrender some sovereignty (as in the WTO case) when the payoffs can justify it.  Furthermore, your invocation of the CTBT doesn&#039;t fit with the ICC example, as the US is a functioning member yet her membership in that organization has not prevented defections or cheating, especially as the barriers to entering the nuclear club have gone down.  (I presume that you intended to argue in the ICC example that the presence of the hegemon as a member would add pressure to malcontents to follow the organization&#039;s rules.)</description>
		<content:encoded><![CDATA[<p>Nathan, the problem is that the strongest international institutions are organized <em>around</em> American power, rather than merely having America as a participant, and this is why international institutions that do not directly or indirectly put the US in a <em>primus inter pares</em> position are weaker.  The WTO may seem to contradict this assertion, but the hegemonic stability theorist would say that because the US is structuring the international market to benefit itself, then the WTO is a tool of the hegemon.</p>
<p>You claim that we would heighten our hegemony with accession to the ICC, but this is a counterfactual in need of more exploration.  (I will also set aside the realist objection to the ICC on the grounds that the forerunner to the ICJ has (a) been horribly slow and ineffective and (b) inevitably applies "victor's justice.")  Hegemons are, after all, fairly jealous of their power, and only surrender some sovereignty (as in the WTO case) when the payoffs can justify it.  Furthermore, your invocation of the CTBT doesn't fit with the ICC example, as the US is a functioning member yet her membership in that organization has not prevented defections or cheating, especially as the barriers to entering the nuclear club have gone down.  (I presume that you intended to argue in the ICC example that the presence of the hegemon as a member would add pressure to malcontents to follow the organization's rules.)</p>
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		<title>By: Nathan Ketsdever</title>
		<link>http://www.outsidethebeltway.com/archives/limits_of_international_law/comment-page-1/#comment-143318</link>
		<dc:creator>Nathan Ketsdever</dc:creator>
		<pubDate>Sat, 25 Aug 2007 09:44:35 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/2007/08/crooked_timber_the_sources_of_international_law/#comment-143318</guid>
		<description>I seem to be in a bit of a sticky wicket if I understand Matthews answer.  First, Matthew is correct to point out the distinction between two types of multilateralism, however the fact that both require responsibilities and constrain willy nilly unilateralism is pretty undeniable.  And many folks would say they are more similarities than differences to the extent that the US still is pretty hegemonic in the UN and would probably heighten our hegemony if we joined the International Criminal Court.  By being on the security council we also get to decide who gets peacekeeping missions and who doesn&#039;t.  In other words we can choose to fund and support PKOs that are valuable to our economics interests (not sure how this theory plays out in practice)  To the extent that we benefit from the &quot;free trade&quot; the IMF imposes via structural adjustment...its hegemony...just of the economic variety.  I think there&#039;s certainly as much similarity between these two as there are between the Vietnam war and say the Iraq war.

Here&#039;s the sticky wicket part.  I think that NATO and multilateralism allows for an archimedian point for US hegemony, or as Greenspan might refer to it a &quot;Goldilocks&quot; hegemony.  NATO certainly allows us some military and economic advantage in Europe, but not to the extent that it would provoke hostility.  Multilateralism, like the ICC and the CTBT allows us to maintain our position as police power without becoming the vigilante who uses either military intervention in the case of the ICC or mini-nukes (or at least tests for mini-nukes) in the case of the CTBT.  Does that answer your question?</description>
		<content:encoded><![CDATA[<p>I seem to be in a bit of a sticky wicket if I understand Matthews answer.  First, Matthew is correct to point out the distinction between two types of multilateralism, however the fact that both require responsibilities and constrain willy nilly unilateralism is pretty undeniable.  And many folks would say they are more similarities than differences to the extent that the US still is pretty hegemonic in the UN and would probably heighten our hegemony if we joined the International Criminal Court.  By being on the security council we also get to decide who gets peacekeeping missions and who doesn't.  In other words we can choose to fund and support PKOs that are valuable to our economics interests (not sure how this theory plays out in practice)  To the extent that we benefit from the "free trade" the IMF imposes via structural adjustment...its hegemony...just of the economic variety.  I think there's certainly as much similarity between these two as there are between the Vietnam war and say the Iraq war.</p>
<p>Here's the sticky wicket part.  I think that NATO and multilateralism allows for an archimedian point for US hegemony, or as Greenspan might refer to it a "Goldilocks" hegemony.  NATO certainly allows us some military and economic advantage in Europe, but not to the extent that it would provoke hostility.  Multilateralism, like the ICC and the CTBT allows us to maintain our position as police power without becoming the vigilante who uses either military intervention in the case of the ICC or mini-nukes (or at least tests for mini-nukes) in the case of the CTBT.  Does that answer your question?</p>
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		<title>By: Matthew Stinson</title>
		<link>http://www.outsidethebeltway.com/archives/limits_of_international_law/comment-page-1/#comment-143317</link>
		<dc:creator>Matthew Stinson</dc:creator>
		<pubDate>Sat, 25 Aug 2007 09:33:26 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/2007/08/crooked_timber_the_sources_of_international_law/#comment-143317</guid>
		<description>James wrote:
&lt;blockquote&gt;[W]ith incredibly rare exceptions, the United States or the EU or China will adhere to adverse rulings made by the WTO or other international tribunals so as to ensure that others will do the same.&lt;/blockquote&gt;
However, this leaves out those myriad cases (for example, IPR in China) where a WTO member violates the rules yet nobody has the desire to actually press the issue because the WTO bureaucracy moves slow or because it invites counter-filings by the targeted parties...

So it&#039;s one thing to say that people listen to the authorities after a decision has been made, and the historical record agrees with that, but in the WTO (as in the UN), there&#039;s strong disincentive to declare that rule-breaking has actually occurred, since it &quot;makes too much work&quot; (for lack of a better term) for all involved.  A case in point:  according to the UN, will there ever be a &quot;genocide&quot; in Darfur?</description>
		<content:encoded><![CDATA[<p>James wrote:</p>
<blockquote><p>[W]ith incredibly rare exceptions, the United States or the EU or China will adhere to adverse rulings made by the WTO or other international tribunals so as to ensure that others will do the same.</p></blockquote>
<p>However, this leaves out those myriad cases (for example, IPR in China) where a WTO member violates the rules yet nobody has the desire to actually press the issue because the WTO bureaucracy moves slow or because it invites counter-filings by the targeted parties...</p>
<p>So it's one thing to say that people listen to the authorities after a decision has been made, and the historical record agrees with that, but in the WTO (as in the UN), there's strong disincentive to declare that rule-breaking has actually occurred, since it "makes too much work" (for lack of a better term) for all involved.  A case in point:  according to the UN, will there ever be a "genocide" in Darfur?</p>
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		<title>By: Matthew Stinson</title>
		<link>http://www.outsidethebeltway.com/archives/limits_of_international_law/comment-page-1/#comment-143315</link>
		<dc:creator>Matthew Stinson</dc:creator>
		<pubDate>Sat, 25 Aug 2007 09:15:19 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/2007/08/crooked_timber_the_sources_of_international_law/#comment-143315</guid>
		<description>Nathan, is NATO really the multilateral institution you&#039;re saying or is it really a modern  suzerainty whereby the US may project militarily into the European and Central Asian theater by buying off a portion of member-states&#039; sovereign rights in exchange for security guarantees?  Which is to say, a hegemonic stability theorist (or an old-fashioned realist) would look at NATO very differently than a liberal internationalist, and putting it into the same basket as other international institutions (e.g. the UN, the IMF, etc.) for the purposes of stressing cooperation is fitting a square peg to a round hole.</description>
		<content:encoded><![CDATA[<p>Nathan, is NATO really the multilateral institution you're saying or is it really a modern  suzerainty whereby the US may project militarily into the European and Central Asian theater by buying off a portion of member-states' sovereign rights in exchange for security guarantees?  Which is to say, a hegemonic stability theorist (or an old-fashioned realist) would look at NATO very differently than a liberal internationalist, and putting it into the same basket as other international institutions (e.g. the UN, the IMF, etc.) for the purposes of stressing cooperation is fitting a square peg to a round hole.</p>
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		<title>By: Nathan Ketsdever</title>
		<link>http://www.outsidethebeltway.com/archives/limits_of_international_law/comment-page-1/#comment-143261</link>
		<dc:creator>Nathan Ketsdever</dc:creator>
		<pubDate>Fri, 24 Aug 2007 21:39:45 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/2007/08/crooked_timber_the_sources_of_international_law/#comment-143261</guid>
		<description>Just because the US isn&#039;t constrained now, doesn&#039;t mean that it won&#039;t be under a democratic president or even a more moderate GOP president.

Second, its a question of is vs. ought.  Even if it doesn&#039;t constrain us, it doesn&#039;t mean that we shouldn&#039;t follow it or that other countries shouldn&#039;t follow it or that its not useful.  International law creates a norm, which even if its not perfect, creates a baseline to talk, evaluate, and create accountability for countries in the international sphere.

Third, international law matters.  Our engagement of multilateral institutions is critical for coalitions of the willing to solve issues of genocide, proliferation, poverty, and every other conceivable international problem including terrorism.  Professor John Ikenberry at Georgetown University makes a very convincing case for this line of thinking in Foreign Affairs in the fall of 2002 (he&#039;s had some follow up articles elsewhere as well).  

Shake and Becker in Policy Review make additional arguments that are devastating to unilateralists who would keep us out of international institutions like international law.  Its pretty undeniable that unilateralism leads to overstretch.  For instance this administration has been radically hemmed in dealing with important issues of national security in Iran, Sudan, and Asia (I don&#039;t think even Levey and Brown take this into consideration in their manifesto).  In fact, it was overstretch that led to the decline of the Roman empire (thanks Christopher Layne).  Further, the formation of NATO has been critical to the economic prosperity, US leadership, and relative stability post WWII.  A world without Nato would have been far worse and its hard to calculate how its serve to solidify the economic relationship that maintains about 1/3 of world trade.  Thats a pretty convincing record of a nearly a hemisphere of prosperity that probably would not have existed otherwise.</description>
		<content:encoded><![CDATA[<p>Just because the US isn't constrained now, doesn't mean that it won't be under a democratic president or even a more moderate GOP president.</p>
<p>Second, its a question of is vs. ought.  Even if it doesn't constrain us, it doesn't mean that we shouldn't follow it or that other countries shouldn't follow it or that its not useful.  International law creates a norm, which even if its not perfect, creates a baseline to talk, evaluate, and create accountability for countries in the international sphere.</p>
<p>Third, international law matters.  Our engagement of multilateral institutions is critical for coalitions of the willing to solve issues of genocide, proliferation, poverty, and every other conceivable international problem including terrorism.  Professor John Ikenberry at Georgetown University makes a very convincing case for this line of thinking in Foreign Affairs in the fall of 2002 (he's had some follow up articles elsewhere as well).  </p>
<p>Shake and Becker in Policy Review make additional arguments that are devastating to unilateralists who would keep us out of international institutions like international law.  Its pretty undeniable that unilateralism leads to overstretch.  For instance this administration has been radically hemmed in dealing with important issues of national security in Iran, Sudan, and Asia (I don't think even Levey and Brown take this into consideration in their manifesto).  In fact, it was overstretch that led to the decline of the Roman empire (thanks Christopher Layne).  Further, the formation of NATO has been critical to the economic prosperity, US leadership, and relative stability post WWII.  A world without Nato would have been far worse and its hard to calculate how its serve to solidify the economic relationship that maintains about 1/3 of world trade.  Thats a pretty convincing record of a nearly a hemisphere of prosperity that probably would not have existed otherwise.</p>
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		<title>By: Dave Schuler</title>
		<link>http://www.outsidethebeltway.com/archives/limits_of_international_law/comment-page-1/#comment-143237</link>
		<dc:creator>Dave Schuler</dc:creator>
		<pubDate>Fri, 24 Aug 2007 17:04:24 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/archives/2007/08/crooked_timber_the_sources_of_international_law/#comment-143237</guid>
		<description>I think that the greater challenge is actually one that is completely outside of international, national, or even local law:  that every day more economic decisions are being made by companies and individuals, fundamentally without the knowledge of government.  Governments are on the horns of a dilemma.  Either they can put controls and restrictions on this commerce, running the risk of killing the goose generating golden eggs for so many countries or they can allow these decisions to be made freely, rendering themselves irrelevant.</description>
		<content:encoded><![CDATA[<p>I think that the greater challenge is actually one that is completely outside of international, national, or even local law:  that every day more economic decisions are being made by companies and individuals, fundamentally without the knowledge of government.  Governments are on the horns of a dilemma.  Either they can put controls and restrictions on this commerce, running the risk of killing the goose generating golden eggs for so many countries or they can allow these decisions to be made freely, rendering themselves irrelevant.</p>
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