The Obama "To Make Important Middle East Speech" MEGATHREAD

[jimmy olsen]

Lol, I just read the title as The Obama "To Make Important Middle Earth Speech"

"...at my direction, hobbit bowmen of the Shire have located and killed Grima Wormtongue..."

[Malthus]

I think a more accurate description is "making shit up."

Well, this was Franck's thesis about the reality of international law: 'make shit up', and if enough people act as if it was real, binding rules, eventually they will become real, binding rules, through the magic of legitimacy.

The problem is that, when shit really hits the fan for states, power talks and legitmacy walks. Apparently.

[Admiral Yi]

Well, this was Franck's thesis about the reality of international law: 'make shit up', and if enough people act as if it was real, binding rules, eventually they will become real, binding rules, through the magic of legitimacy.

And if they don't, it was just making shit up.

[The Minsky Moment]

There's a third way actually that I missed which is over time states can create trans-national institutions that serve their respective interests but over time acquire a legitimacy and life of their own.  Just as the royal courts in England gradually crowded out other more localized and competing forums because they provided more efficient and effective forms of justice, trans-national institutions can over time prove themselves as a better means of dealing with justiciable problems that are inherently trans-national character.  But while in the former case the rise of the royal courts was paralleled and interacted with a rise in royal power (backed by coercive force), that dynamic is not yet occurringwith respect to the latter case, which practically limits its potential.

[Razgovory]

The EU could potentially gain that power, but I doesn't now and I doubt it ever will.

[Malthus]

There's a third way actually that I missed which is over time states can create trans-national institutions that serve their respective interests but over time acquire a legitimacy and life of their own.  Just as the royal courts in England gradually crowded out other more localized and competing forums because they provided more efficient and effective forms of justice, trans-national institutions can over time prove themselves as a better means of dealing with justiciable problems that are inherently trans-national character.  But while in the former case the rise of the royal courts was paralleled and interacted with a rise in royal power (backed by coercive force), that dynamic is not yet occurringwith respect to the latter case, which practically limits its potential.

That was also part of Franck's original thesis - that there is legitimacy-creating value in transparently useful and efficient mechanisms of international legal reciprocity.

I can agree that these mechanisms can arise, but like you I'm somewhat skeptical about how far they can go without coercion backing them up. Matters of war and peace - I don't think so; the powerful will never agree to be so limited, and the powerless will not see the imposition on them as legitimate if the powerful aren't bound.

[Pat]

Pacta sunt servanda is a principle of private law as between individuals, with the presumption that there is a sovereign in the background. But the subjects of international law (primarily nation-states) are not individuals or akin to individuals, and there is no background supernational sovereign.  It's a poor analogy and IMO a dangerous one because it elides over precisely the critical distinctions that make public international law different from private law.
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Pacta sunt servanda has been a principle of international law for many thousands of years, it is probably as old as humanity itself. I quote from Britannica: "The concept known by the Latin formula pacta sunt servanda ("agreements must be kept") is arguably the oldest principle of international law." To say there can be no principles without power backing them up is no less than the very essence of nihilism and power-worship.

Positively, international law arises from the conduct of international actors.  That is states act in certain ways and over time to the extent that conduct becomes regularized or routinized (which may be through written treaties or conventions but may be otherwise), expectations can arise that assume a law-like character.  International law is just a loose set of doctrine that attempts to characterize and categorize those expectations and apparent precedents.

The second source of international law is international lawyers themselves - academics, treatise writers, legal entrepeneurs, business advocates and politicians -- who have an interest in representing a particular form of international legal order.  By putting forth claims about the substantive content of international law and its status as law, the international lawyers are attempting to create a new legal order in effect ex nihilo.  This is a project that is essentially rhetorical at present but could eventually develop into something firmer if international institutions arise in response to effectuate the project.  So far, the process is embryonic at best and has encountered resistance.

This is an argument from sovereignty, which is an argument from power. 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. I would also say that metaphysics is something very important. All human culture and civilization is at their essence metaphysics. They are made up. It is a law of human nature that human activity is inspired by metaphysics since thought must precede action - to fool oneself into denying this is in itself a sort of metaphysics, a set of beliefs. And the point is that principles and morals are not metaphysics at all, even though it may be helpful for some people to see them that way.

[Malthus]

Pacta sunt servanda has been a principle of international law for many thousands of years, it is probably as old as humanity itself. I quote from Britannica: "The concept known by the Latin formula pacta sunt servanda ("agreements must be kept") is arguably the oldest principle of international law." To say there can be no principles without power backing them up is no less than the very essence of nihilism and power-worship.


This is an argument from sovereignty, which is an argument from power. 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. I would also say that metaphysics is something very important. All human culture and civilization is at their essence metaphysics. They are made up. It is a law of human nature that human activity is inspired by metaphysics since thought must precede action - to fool oneself into denying this is in itself a sort of metaphysics, a set of beliefs. And the point is that principles and morals are not metaphysics at all, even though it may be helpful for some people to see them that way.

He's arguing about what is. You are arguing about what ought.

[The Minsky Moment]

Pacta sunt servanda has been a principle of international law for many thousands of years, it is probably as old as humanity itself. I quote from Britannica: "The concept known by the Latin formula pacta sunt servanda ("agreements must be kept") is arguably the oldest principle of international law." 

As applied to public international law, it is (as a matter of fact not aspiration) a mere exhortation, based on a false analogy to private contract.  International agreements can be and are often are abrogated  unlitaterally -- and such abrogation is not a deviant result, but a corollary of a system of independent sovereign states.

To say there can be no principles without power backing them up is no less than the very essence of nihilism and power-worship.

Nihilism is power without principles.  Utopianism is principles without power.  Pragmatism accepts the reality and necessity of both.

[Pat]

Pacta sunt servanda has been a principle of international law for many thousands of years, it is probably as old as humanity itself. I quote from Britannica: "The concept known by the Latin formula pacta sunt servanda ("agreements must be kept") is arguably the oldest principle of international law." To say there can be no principles without power backing them up is no less than the very essence of nihilism and power-worship.


This is an argument from sovereignty, which is an argument from power. 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. I would also say that metaphysics is something very important. All human culture and civilization is at their essence metaphysics. They are made up. It is a law of human nature that human activity is inspired by metaphysics since thought must precede action - to fool oneself into denying this is in itself a sort of metaphysics, a set of beliefs. And the point is that principles and morals are not metaphysics at all, even though it may be helpful for some people to see them that way.

He's arguing about what is. You are arguing about what ought.

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; 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.

Pacta sunt servanda has been a principle of international law for many thousands of years, it is probably as old as humanity itself. I quote from Britannica: "The concept known by the Latin formula pacta sunt servanda ("agreements must be kept") is arguably the oldest principle of international law." 

As applied to public international law, it is (as a matter of fact not aspiration) a mere exhortation, based on a false analogy to private contract.
International agreements can be and are often are abrogated  unlitaterally -- and such abrogation is not a deviant result, but a corollary of a system of independent sovereign states.

Deviation from the norm does not mean there is no norm. Let us posit a made up country, we can call it Graecia, where the law that you must pay your taxes is not carried out because the state is too weak. By your position that means there is no law, because it is imperfectly or not at all carried out. This is clearly false. It just means it's not followed by those strong who can get away with it (though it is perhaps forced on the weak).

To say there can be no principles without power backing them up is no less than the very essence of nihilism and power-worship.

Nihilism is power without principles.  Utopianism is principles without power.  Pragmatism accepts the reality and necessity of both.

Are all principles without power utopian?

[Malthus]

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; 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.

But there exists a real (not metaphysical) international law. It simply does not operate like domestic law. A better analogy would be to voluntary industry codes of conduct and dispute resolution - existing in a world without courts to back them up.

Arbitration, under such circumstances, may *look* like a court process and have all the *trappings* of (say) contract law, but it always operates with the understanding that, at base, it is voluntary and those submitting to arbitration will only do so as long as they believe being part of the system serves their interests - for example, accepting a loss in any one conflict because, over time, support for the system is "worth it" - having a just and equitable system of dispute resolution is worth any individual loss.

Matters of peace and war can easily take on aspects of a zero-sum game and are not easily susceptible to this sort of arbitration. The reason ought to be obvious: there is so much at stake that no country sees it being "worth it" to accept a loss in any individual conflict, in order to support the system. Particularly if "the system" is neither just nor impartial to begin with.

The Israel-Palestine matter is a perfect example. Some contend that the very existence of Israel as a state is illegal or unjust. Israel could not ever voluntarily accept arbitrating the matter, because what if they lost?

In short, one may voluntarily accept arbitrating matters like the import tariffs on beets, because what you lose on beets you may gain on spinach. One may not voluntarily arbitrate putting one's head in a noose - that requires someone with guns to make you do it. 

[Pat]

Well if you think it is very unreasonable to follow the law in a specific case I guess you can always break it (which is easy in Intl. law) but that doesn't mean the law doesn't exist.

[Malthus]

Well if you think it is very unreasonable to follow the law in a specific case I guess you can always break it (which is easy in Intl. law) but that doesn't mean the law doesn't exist.

There is certainly a creature entitled "international law", but it is not really like domestic law - it doesn't operate in the same way at all; its sources and dynamics are different. Most significantly, it lacks any sovereign. Even domestic voluntary arbitration ultimately has the recourse of a sovereign to fall back on - if the arbitration fails, you can always fall back on suing the bastards in the regular courts; and arbitration awards are often legally enforcable.

"International law" is basically no more nor less than voluntary arbitration of disputes between nations, interpreted through the lens of customs, treaties, and the added organisms of the United Nations - a pseudo-Parliament that goes perfectly with the making of pseudo-Law.

The UN is an even worse analogue for a sovereign government, than International Law is for law - in fact, it adds a layer of obvious injustice to muddy custom and treaty, since its "parliament" is made up of sovereign nations each with a vote regardless of population, and its "governing council" is dominated, right or wrong, by the victors of WW2.

[Pat]

I know there's no real sovereign, and I know it doesn't work the same. I'm just saying it exists and that there's a principle that agreements should be kept in it.

[Neil]

I know there's no real sovereign, and I know it doesn't work the same. I'm just saying it exists and that there's a principle that agreements should be kept in it.

But there isn't, really.  The principles of international law are created through custom, and a sovereign state customarily retains the freedom to break its agreements whenever it chooses.