The Obama "To Make Important Middle East Speech" MEGATHREAD

[Pat]

And then the other state(s) becomes angry, because it broke the law.

[Pat]

This freedom to break arrangements does exist under Intl. law but is not absolute. Like in the Vienna convention on treaties (quote from wiki):

"A party may claim that a treaty should be terminated, even absent an express provision, if there has been a fundamental change in circumstances. Such a change is sufficient if unforeseen, if it undermined the "essential basis" of consent by a party, if it radically transforms the extent of obligations between the parties, and if the obligations are still to be performed. A party cannot base this claim on change brought about by its own breach of the treaty. This claim also cannot be used to invalidate treaties that established or redrew political boundaries."

[MadImmortalMan]

International Law is a living document. 

[Neil]

And then the other state(s) becomes angry, because it broke the law.

They tend not to, because states appreciate that international law isn't like real law.

[The Minsky Moment]

You are essentially saying it is the state that is sovereign, it is the state that wields power, it is the state that exists, and everything above states are metaphysics. I say nothing else, except that states should be bound by their word . . . the principle of pacta sunt servanda has existed for many thousands of years and it has been denied and broken by the powerful but always made it's return, and though denied by some today I'm sure it will be back soon.

States don't have a "word" to break or be bound by.  States are agglomerations of people in a political community and are delineated by their self-definition and their action.  The essence of the state is its own preservation as such, the protection of the individuals within it, and the effectuation of the aims and goals of those individuals.  That is what drives all interaction of a state with the outside world.  So pacta sunt servanda not only does not accurately describe how states really behave, it is also (prescriptively) as a principle inconsistent with the very concept of a system of independent states.  Because if an interstate agreement comes into conflict with a fundamental policy of one of the states to the agreement, then the state in order to retain its quality as such, *must* reject the principle of pacta sunt servanda, i.e. the principle of "keeping to one's word" must yield to the contradictory needs and aspirations of the community.

This is not a question of the "powerful' rejecting the principle - states both weak and strong must reject it in order to maintain their quality as states. Indeed, you are so focused on the case of a powerful state rejecting purported international norms that you are missing the alternative case of a powerful state *asserting* an international norm to legitimize its infringement upon the sovereignty of a weaker state.  this can be seen today with the Western powers in Libya, and with China in the South China Sea.

The metaphysical is. I am also arguing about the dialectics between is and ought, more specifically the matter of whether what is should follow from what ought or if what ought should follow from what is. In the latter there lies danger, and I would say the position of Joan, while not exactly this, could be used to mean this, in which case there is no international law at all, which there clearly is;

My point is different -- rather than there being an "international law" there are "international laws" - or to put it another way, there is an "international law" but its content and import are contested and amorphous.  By phrasing the matter in metaphysical terms - ie as a matter of applying abstract principles of universal natural law to concretes in international relations - one takes a particular form of the "ought" and asserts to be the "is", only not yet fully realized.  This is the Hegelian move of asserting the rational as real.  But it begs the question - which (or whose) rationality?  The metaphysical argument is just a way of getting around the contested nature of the status and content of international law rather than engaging with those objections.

[Pat]

And then the other state(s) becomes angry, because it broke the law.

They tend not to, because states appreciate that international law isn't like real law.

Some do. Remember when some countries risked their relations with this really big country by saying "um guys there's this thing called intl. law" and then people in the big country got really angry because it obviously didn't apply to them?

[Valmy]

Some do. Remember when some countries risked their relations with this really big country by saying "um guys there's this thing called intl. law" and then people in the big country got really angry because it obviously didn't apply to them?

Not really.

[Razgovory]

And then the other state(s) becomes angry, because it broke the law.

They tend not to, because states appreciate that international law isn't like real law.

Some do. Remember when some countries risked their relations with this really big country by saying "um guys there's this thing called intl. law" and then people in the big country got really angry because it obviously didn't apply to them?

Yeah, and did they declare war on that big country?  Impose sanctions?  Nope.

[The Minsky Moment]

Some do. Remember when some countries risked their relations with this really big country by saying "um guys there's this thing called intl. law" and then people in the big country got really angry because it obviously didn't apply to them?

Is this a reference to France and Britain violating the Kellogg-Briand Pact in 1939 by declaring war on Germany?
I don't precisely recall the diplomatic fallout from this.

[dps]

Some do. Remember when some countries risked their relations with this really big country by saying "um guys there's this thing called intl. law" and then people in the big country got really angry because it obviously didn't apply to them?

Is this a reference to France and Britain violating the Kellogg-Briand Pact in 1939 by declaring war on Germany?
I don't precisely recall the diplomatic fallout from this.

IIRC, Poland somehow kind of ended up getting screwed by the resolution of the whole mess.

[DGuller]

  Yeah, I don't think Pat thought through his example.

[Pat]

You are essentially saying it is the state that is sovereign, it is the state that wields power, it is the state that exists, and everything above states are metaphysics. I say nothing else, except that states should be bound by their word . . . the principle of pacta sunt servanda has existed for many thousands of years and it has been denied and broken by the powerful but always made it's return, and though denied by some today I'm sure it will be back soon.

States don't have a "word" to break or be bound by.  States are agglomerations of people in a political community and are delineated by their self-definition and their action.  The essence of the state is its own preservation as such, the protection of the individuals within it, and the effectuation of the aims and goals of those individuals.  That is what drives all interaction of a state with the outside world.

 
To say a state merely is a bunch of individuals is true but is reductionist like saying the Mona Lisa is merely paint on a canvas (and the paint is merely a mixture of ingredients, that are merely different chemicals, that are merely atoms, etc). A state is expected to represent those individuals as a collective to the outside world. This is not a lege ferenda argument. It doesn't matter that the Greek state was weak or if it didn't really represent it's citizens or whatever - the rest of the world still has the right to hold Greece to it's obligations. I might remind you of all the third world countries that are still paying off huge debts to first world countries, way more than what they recieve in aid, not seldomly racked up by buying tons of weapons when their government was a pawn in the cold war and didn't represent the people at all. Why don't you try tell them pacta sunt servanda doesn't exist?

So pacta sunt servanda not only does not accurately describe how states really behave, it is also (prescriptively) as a principle inconsistent with the very concept of a system of independent states.  Because if an interstate agreement comes into conflict with a fundamental policy of one of the states to the agreement, then the state in order to retain its quality as such, *must* reject the principle of pacta sunt servanda, i.e. the principle of "keeping to one's word" must yield to the contradictory needs and aspirations of the community. This is not a question of the "powerful' rejecting the principle - states both weak and strong must reject it in order to maintain their quality as states.

No it's not inconsistent. It's perfectly consistent. You can break treaties without any provision for doing so in the treaty if the circumstances considerably change and that's OK with intl. law, I even posted a summary of what it says in the Vienna convention in this very thread just a few posts ago. And presumably states should be expected not to sign stupid treaties just as individuals should be expected not to sign stupid contracts.

Indeed, you are so focused on the case of a powerful state rejecting purported international norms that you are missing the alternative case of a powerful state *asserting* an international norm to legitimize its infringement upon the sovereignty of a weaker state.  this can be seen today with the Western powers in Libya, and with China in the South China Sea.

That's a terrible argument and you're absolutely wrong, since, actually, it's the inconsistancy and hypocrisy that bothers me.

The metaphysical is. I am also arguing about the dialectics between is and ought, more specifically the matter of whether what is should follow from what ought or if what ought should follow from what is. In the latter there lies danger, and I would say the position of Joan, while not exactly this, could be used to mean this, in which case there is no international law at all, which there clearly is;

My point is different -- rather than there being an "international law" there are "international laws" - or to put it another way, there is an "international law" but its content and import are contested and amorphous.  By phrasing the matter in metaphysical terms - ie as a matter of applying abstract principles of universal natural law to concretes in international relations - one takes a particular form of the "ought" and asserts to be the "is", only not yet fully realized.  This is the Hegelian move of asserting the rational as real.  But it begs the question - which (or whose) rationality?  The metaphysical argument is just a way of getting around the contested nature of the status and content of international law rather than engaging with those objections.

[/quote]

I agree that there is an international law but that it's content and import are contested and amorphous. Taking the Ought and asserting it as the Is is what all law does. Same thing with that it's not fully realized, that can be said of all law. Which (or whose) rationality is a good question. I'd say the rationality that has been more or less constant in explicit form for thousands of years and is probably as old as our specie or perhaps even older (I'm sure you can find tons examples of the principle of pacta sunt servanda (not the law) even in the animal world). So, yeah, that rationality.

[The Minsky Moment]

A state is expected to represent those individuals as a collective to the outside world.

All the more reason it is inconsistent for a state to constrain its action in the name of an abstract principle where that principle may conflict with the needs of those its represents.

I might remind you of all the third world countries that are still paying off huge debts to first world countries, way more than what they recieve in aid, not seldomly racked up by buying tons of weapons when their government was a pawn in the cold war and didn't represent the people at all. Why don't you try tell them pacta sunt servanda doesn't exist?

I don't have to tell them - they already know.  A debtor state makes a calculation about the costs and benefits of the default - the general legal principle is not a factor.  So e.g. Argentina decides it is better off defaulting and assuming the consequences - pacta sunt servanda be damned.  Note that there was little consequence of significance to Argentina from doing this at the state level - rather the fallout such as it has been principally related to the reaction of private debt holders and the international bond markets.

You can break treaties without any provision for doing so in the treaty if the circumstances considerably change and that's OK with intl. law, I even posted a summary of what it says in the Vienna convention in this very thread just a few posts ago.

This is an exception that swallows up the whole; state relations internally and externally are inherently dynamic and circumstances are always changing.

This is the problem when one takes a private law doctrine like contract and apply it to an alien sphere like international relations.  In contract, the principle that agreements are to be enforced is hedged about by all sorts of exceptions deriving from the organic public policy of the state.  Absent international consensus on the contours of desirable public policy, such a doctrine cannot be transplanted into international public law.  And beyond that, in contract there is the ultimate out of "efficient breach" - a contracting party can always choose to break the agreement and pay damages if the cost of doing so would be less than the cost of adhering to the agreement.  That is an essential aspect of contract, but one not easily carried over into international law.

That's a terrible argument and you're absolutely wrong, since, actually, it's the inconsistancy and hypocrisy that bothers me.

Why is it wrong?  What is the hypocrisy?

Which (or whose) rationality is a good question. I'd say the rationality that has been more or less constant in explicit form for thousands of years and is probably as old as our specie or perhaps even older (I'm sure you can find tons examples of the principle of pacta sunt servanda (not the law) even in the animal world). So, yeah, that rationality. 

So the appeal is to natural law.  I don't agree even as a matter of private law - the principle that one should do what one commits to do (which is what pacta sunt servanda reduces to) does not strike me as inherently obvious or natural.

Focusing on the principle as an international law concept, it strikes me as an odd basic principle.  As a liberal, I would say that the basic "natural" or "rational" principle of state should be that the state should protect the liberty of its citizens and effectuate the ends of its free citizens as expressed through a free and democratic political process.  But that requires that the free, liberal state act autonomously with respect to the outside world, and to reverse itself with respect to external commitments when domestic political will so commands.  And that is inconsistent with pacta sunt servanda as a foundational concept of international law.

[The Minsky Moment]

IIRC, Poland somehow kind of ended up getting screwed by the resolution of the whole mess.

AFAIK there is no actual or possible system of international law or relations that does not result in Poland getting screwed.

"Let's settle here between the Germans and the Russians, what could possibly go wrong?"

[Viking]

IIRC, Poland somehow kind of ended up getting screwed by the resolution of the whole mess.

AFAIK there is no actual or possible system of international law or relations that does not result in Poland getting screwed.

"Let's settle here between the Germans and the Russians, what could possibly go wrong?"

To be fair, when they did settle the Germans were getting the snot beaten out of the my the Hungarians and the Russians were getting the snot beat out of them by Varangians and Finnish tribesmen. The odds of both of these pathetic losers getting their act together is rather low...