A MORAL CRITIQUE OF U.S. FOREIGN POLICY

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A MORAL CRITIQUE OF U.S. FOREIGN POLICY

• INTERNATIONAL LAW AND GENUINE COMMUNITY

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I Pledge Allegiance to . . . .

• Sanford Levinsons encounter with the
  Constitution . . .
• Was this the Constitution without the Bill of
  Rights?
• Without the Civil War Amendments?
• Without the 19th Amendment that guaranteed women
  the right to vote?
• Given the moral gravity of these changes, he had
  to ask himself whether he could commit himself to
  the current Constitution?
• Given the moral gravity of current affairs, we
  must carefully explore and reawaken our
  appreciation for our deepest values.

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Reclaiming our Values

• As children, we are raised to believe that our
  country is on the side of justice and goodness.
• However, the moral goodness of the United States
  is not a necessary proposition. Nor is it a
  permanent condition.
• As adults, we are required to make that
  determination on the basis of evidence. And now
  is an especially important moment.
• The core values of the United States are
  consistent with, and perhaps ever require, a
  radically different international stanceone
  based on equal membership in a community of
  nations under the rule of law.

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International Affairs at a Paradigm Crossroads

• TRADITIONAL PARADIGM
• Nation-States with Strong Sovereignty
• Weak Regime of International Legal Institutions
• Bilateral or multilateral treaties--Mutual
  Protection Associations and cooperative
  arrangements for mutual benefit
• Lip service towards human rights
• Just War Tradition

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Challenges to the Existing Paradigm of Positivism
and Sovereignty

• Pure legal positivism insufficient to justify
  Nuremberg indictments
• UN Declaration of Human Rights and the growing
  focus on individual natural rights
• Humanitarian InterventionsSomalia, Rwanda,
  Bosnia and Kosovo, East Timor
• Maturing of International Law--International
  Criminal Court and the European Court of Human
  Rights
• Terrorismnon-state actors using violence on a
  war-like scale against civilians

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New Era?

• Given these and similar challenges, we are told
  that we are entering a new era in international
  relations.
• If we are at the birth of a new paradigm, we must
  recognize
• That there are ALTERNAITVES,
• That these paradigms are human constructs, and
• That we have the responsibility to build the best
  system that we can.
• Here is my view of the choice that we face. . .

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American Imperialism or Moral Community?

• American Imperialism
• American Exceptionalism
• Weak international law
• Inequality
• Positivism
• Unilateralism
• Moral Community
• Equality
• Rule of Law
• Equal Concern and Respect
• Natural Law and Human Rights
• Multilateralism

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Wild West Analogy

• When evaluating the Bush administrations
  preferred paradigm, the best model is to imagine
  a 19th century town on the American western
  frontier dominated by a thug who considers
  himself immune from the nascent legal order in
  that community.
• For Example . . .
• LIBERTY VALANCE

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There are good reasons to cast the U.S. as an
international outlaw

• In the 1986 Nicaragua case, the US declared
  itself an international outlaw when it terminated
  its acceptance of the compulsory jurisdiction of
  the International Court of Justice.
• In April of 1990, the US violated our extradition
  treaty with Mexico when we kidnapped Dr. Humberto
  Alvarez-Hachain.
• In the 1998 case of Paraguay v. United States,
  the U.S. ignored an order of the International
  Court of Justice requiring that it take all
  measures at its disposal to ensure that Angel
  Francisco Breard is not executed.
• AND we declare ourselves an outlaw when we assert
  that we will go it alone if the UN fails to
  authorize force.

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Active Opposition to the Emergence of Effective
International Legal Order

• The U.S. has refused to ratify the treaty
  creating the International Criminal Court, AND
• The US has threatened to suspend military aid to
  countries who wont agree not to extradite US
  citizens to this court
• The US threatened to veto reauthorization of UN
  peace keeping missions if US personnel were not
  granted prosecutorial immunity

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Active Opposition to the Emergence of Effective
International Legal Order

• We have also refused to ratify
• Vienna Convention on the Law of Treaties
• Law of the Sea Treaty
• The American Convention on Human Rights
• And we refused to substantively participate in
  the Johannesburg Conference on Sustainable
  Development

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• The principle the Bush administration appears to
  be advancing is
• American Exceptionalism
• The idea is that international norms, rules,
  principles, and laws should apply to everyone
  except Americans.
• What else would you expect an outlaw to advocate?

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Other Elements of the American Imperialist
Paradigm

• Inequalityour interests trump the needs, desires
  or rights of others
• PositivismStrong sovereignty (for us) and there
  are no rules that limit us except those that we
  have explicitly accepted
• Unilateralismour WILL alone determines what we
  can or ought to do
• Hegemony and Empire

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Alternative to American Imperialism

• EQUAL MEMBERSHIP IN A COMMUNITY
• UNDER THE RULE OF LAW
• Multilateralism
• Rule of Law
• Human Rights
• Equality
• Reason and Universalizability

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The Community Paradigmconstitutes a moral
critique because

• It seriously acknowledges
• The duties of community that are based on
  fairness and the long term common good
• The full equality of all members
• Individual human rights as absolute limits on
  power
• Pluralism, diversity, and sustainability
• Reason or Universalizabilityconsistency in
  principle, and
• The Rule of law

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In the Community, multilateralism will show up as
. . .

• A genuine discourse among equals.
• Bush will not be able to act as if public debate
  is good only because it is cathartic for those
  who have a problem with what we have decided to
  do.
• Or that negotiation has occurred when you express
  your needs and concerns and then listen and obey
  when I tell you what Ive decided to do
• No nation will have a veto and no one will have
  legitimate recourse to violence, except in
  legitimate self-defense
• There will be a deeper sense of democracy and
  citizen participation in the process

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Multilateralism will show up as . . .

• Limited Sovereignty
• Just as Ohio retained its sovereignty when it
  joined the Union, so too the U.S. will retain its
  sovereignty within the community of nations.
• This sovereignty will, however, be limited. The
  powers and jurisdiction of the Community will be
  limited, but their will be a supremacy clause.

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Fairness will show up as . . .

• Equality each member of the community will have
  the same powers, privileges, and immunities.
• Global CitizenshipWe cannot be free riders in
  the global community. If we benefit from the
  cooperation of others, we must fulfill our duties
  of membership.

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Duties of Community

• It is sometimes suggested that corporations ONLY
  have duties to the investors.
• This is countered by those who suggest that there
  are positive duties of membership in a community
• The international community paradigm is committed
  to the view that nations are not just a
  collection of individuals each pursuing their own
  separate interests. Rather they are equal
  members in a collective endeavor.

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The Rule of Law will show up as

• An equal limitation on both bad actors AND those
  who stand for justice.
• Neither the outlaws nor the sheriffs will be able
  to exercise dictatorial powers.
• Whatever may be appropriate action toward Saddam
  Hussein . . .
• George W. Bush cannot act as a vigilante. Nor
  can he be permitted to lead a lynch mob. He can
  ONLY do what he is legally authorized to do by
  Congress AND the United Nations Security Council.

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The Rule of Law is about Subordinating Power to
Reason

• This view was poignantly expressed by Justice
  Jackson in his opening remarks at the Nuremberg
  Tribunal, when he said
• That four great nations, flushed with victory and
  stung with injury, stay the hand of vengeance and
  voluntarily submit their captive enemies to the
  judgment of the law is one of the most
  significant tributes that Power has ever paid to
  Reason.

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Rule of Law

• No one is above the law
• Everyone is equal under law
• No one can take an action which threats to
  undermine the legal system
• Consistency in PrincipleThe principle that
  justifies your action must be part of a coherent
  theory which, together with other principles, can
  justify the majority of your past actions any of
  your expected future actions.
• Precedent Similarly situated others can use your
  principles to justify their actions.

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Precedent captures the moral requirement of
universalizability

• If you are unwilling to permit others to act in
  accordance with the rule, principle, or policy
  that you are offering as a justification for your
  action, and
• They are similarly situated.
• Then, you are behaving immorally.

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Precedent under the Rule of Law

• If we want the Somalis to treat our soldiers as
  prisoners of war in the Blackhawk Down episode,
  then WE must respect the treaties that establish
  those rights.
• If we want China to resist regime change in
  Taiwan or if we want due process for our soldiers
  who crash their crippled airplane at their
  airbase, WE must limit our aims and grant such
  rights in a like manner.
• If we want Russia not to invade Georgia, then we
  must not invade others willy-nilly.

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Equality will show up as a diminution of
nationalism

• Nationalism is a narcissism of minor differences
  Michael Ignatieff
• Nationalism is a fiction that requires a willing
  suspension of disbelief

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Human Rights

• We create our own reality. If enough people
  speak within the narrative of human rights, then
  they become a reality that must be acknowledged.

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From within the community paradigm

• Our criticism of sharia-based stoning of
  adulterers and female circumcision would be
  acknowledged just as we acknowledge the call for
  us to abandon the death penalty.
• Saddam Hussein might be able to go to the World
  Court and obtain a restraining order against the
  threat of U.S. military action

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Pluralism

• I am not suggesting that we have pluralism
  concerning human rights. Those are basic and not
  negotiable.
• But the overall package of our values that we are
  pushing on the world is simply UNSUSTAINABLE.
• It is vital that we encourage a wide diversity of
  social systems and experiments in ways of living,
  because our way is, ecologically, utter folly.

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Conclusions

• The Community Paradigm is morally superior to the
  Empire alternative.
• It acknowledges others as equals
• It subordinates power to reason
• It is faithful to the deepest American values
• It acknowledges natural and human rights and the
  duties of community membership
• It would treat acts of terrorism as crimes, not
  acts of war which are used as a pretext for
  domestic violations of constitutional rights

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Conclusions

• The Community Paradigm has superior policy
  implications. Thus, from within that paradigm,
  the U.S. will sign and ratify
• Vienna Convention on the Law of Treaties
• The International Criminal Court Treaty
• The American Convention on Human Rights
• The Treaty to Ban Landmines
• The Law of the Sea Treaty

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Conclusions

• From within the Community Paradigm, we will
• Permanently submit ourselves to the jurisdiction
  of the World Court.
• Promote and strengthen international law and its
  institutions.
• Neither threaten nor act outside the authority
  granted to us by the United Nations Security
  Council.
• Participate in and fully cooperate with efforts
  to deal with global problems such as war,
  environmental degradation, poverty, hunger,
  refugee relief, human rights violations,
  biodiversity, and cultural diversity.

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Important points to preserve

1. The US retains the natural right of proportional
   genuine self-defense. Neither the UN Charter nor
   the Constitution should be interpreted so as to
   make them a suicide pact.
2. We must preserve individual liberty within
   community. Maoism or Borg-like collectivism is
   not acceptable.
3. We are morally permitted to show a limited bias
   in favor of our family, friends, and fellow
   citizens.