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Title: A MORAL CRITIQUE OF U.S. FOREIGN POLICY


1
A MORAL CRITIQUE OF U.S. FOREIGN POLICY
  • INTERNATIONAL LAW AND GENUINE COMMUNITY

2
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.

3
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.

4
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

5
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

6
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. . .

7
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

8
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

9
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.

10
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

11
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

12
  • 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?

13
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

14
Alternative to American Imperialism
  • EQUAL MEMBERSHIP IN A COMMUNITY
  • UNDER THE RULE OF LAW
  • Multilateralism
  • Rule of Law
  • Human Rights
  • Equality
  • Reason and Universalizability

15
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

16
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

17
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.

18
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.

19
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.

20
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.

21
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.

22
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.

23
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.

24
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.

25
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

26
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.

27
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

28
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.

29
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

30
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

31
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.

32
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.
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