CAFTA Wars: Is the Battle Over Already?

DR-CAFTA, the Dominican Republic- Central American Free Trade Agreement, is facing rough waters in its first Senate hearing, according to this (admittedly anti-CAFTA) report. Opposition is particularly strong in the farm-states, where CAFTA would likely have its greatest effect. Key senators are already suggesting it is heading for defeat.

I am generally supportive of free trade on policy grounds and therefore of these sorts of agreements. But it will be interesting to see if conservatives who support CAFTA pull out the internationalist arguments to defend it, or if liberals switch to nationalist arguments in their campaign to oppose it.

WTO Watch: the EU's Candidate Pulls into the Lead

In the not very exciting race to be the next WTO Director-General, ex-EU Trade Commissioner Pascal Lamy has pulled into the lead, according to this report. Brazil's candidate is apparently out of the running and Lamy has more support than the remaining two candidates (from Mauritius and Uruguay). Does any of this matter? It is hard to say, since the WTO chief's power is (as a formal matter) nearly non-existent. But his informal power could be significant, especially given his background as the EU's chief trade negotiator. No word on which way the U.S. will go, but I wouldn't be surprised if it throws its support to Lamy because, at least in WTO negotiations, the U.S. and the E.U. are usually on the same side of most issues.

Asia and International Institutions

The stability of East Asia is a crucial problem for American (and the world’s) security. Julian’s post highlights what I find to be an ambivalence of many critics of international institutions: on the one hand they note that some country or region has “refused to jump on the internationalist bandwagon” but, on the other hand, they implicitly recognize that the situation might be better if the state or region used international regimes as a tool. The refusal to use international institutions, though, is viewed as “a failure of internationalism” rather than the failure of the state to use the tool it needs. This is like blaming a saw when a carpenter decides to use a screwdriver to try to cut a piece of wood.

I find this argument particularly perplexing given Julian’s recent praise of the work of Eric Posner and Jack Goldsmith, who argue that what we think of as international law and institutions are essentially the self-interested choices of states. If that’s the case, then states choose when to build international institutions and when not to. Asia’s choice not to deepen its international institutions is not some failure of some independent force out there called “internationalism;” it is simply the choice (and I would say the poor choice) of certain sovereign states.

Julian sets up the classic straw man argument that the choice states face is between European Union-styled supranationality or nothing. He ignores the variety of other international institutional models that exist including the Organization of American States, the Economic Community of West African States, and NAFTA, to name a few. He also ignores that it is those intergovernmental models short of EU-styled supranationality that are crucial for security-building

Julian misplaces credit concerning the key guarantors of European security in the supranational human rights tribunals. Although many have argued that these tribunals have helped deepen the respect of human rights in Europe, I have never seen it argued that these institutions were the foundation of European security. Rather, security regimes (NATO but also to a lesser extent the old Western European Union) and economic regimes (the European Coal and Steel Community and later the EC ) are the cornerstones. The EC and NATO in Europe, the OAS in the western hemisphere (and NAFTA in North American and Mercosur in South America) and the Organization of African Unity (supplemented by ECOWAS in West Africa) have historically provided means of intergovernmental discussion, norm setting, information sharing and the resolution of grievances. All the good stuff Posner and Goldsmith praise about the function of international institutions. The lack of similar institutions in Asia is what is troubling.

From an international institutions perspective, the concern is less that there isn’t an Asian Court of Human Rights, than (a) there isn’t a good forum for intergovernmental discussion and settlement of grievances (like the EC or the OAS) and (b) nor are there deep security arrangements (like NATO). APEC was supposed to be the first and ASEAN the latter; neither has evolved quite has hoped and have remained relatively shallow (especially APEC). Note, I am talking about the shallowness of Asian institutions not in relation to the supranational EU as we now see it, but in relation to the largely intergovernmental EC of the 1950’s. That was when institutionalism secured the peace in Europe.

Asia needs similar institutions. The American security umbrella alone can’t do it. Not now, as Yuval Rubinstein argues and not tomorrow, as I have argued (among many others). That is why regime building and deepening in Asia has been a consistent foreign policy goals of American Presidents for decades (from ASEAN to APEC, not to mention the Asian Development Bank).

The construction of international security and economic regimes is the right tool for Asia’s problems. If they choose not to use it, it’s their right. It’s just not a rational choice.

China, Japan, and the Failure of Internationalism

The seemingly minor disputes between Japan and China that I noted some time ago here have continued to fester. This past week, thousands of Chinese marched in sometimes violent (but state-organized) protests against Japan’s attempt to gain permanent membership on the United Nations Security Council and Japanese history textbooks that have whitewashed Japanese atrocities during WWII (indeed, Japan has run into almost identical disputes with South Korea, as I noted here). Meanwhile, normally deferential Japan continues to provoke Chinese ire by allowing undersea gas drilling in disputed territories and denouncing China for violating the Law of the Sea Treaty in its own drilling.

Although today it looks like a happy-go-lucky region benefiting from stupendous economic growth, Asia, and East Asia in particular, may be the most dangerous place in the world. It is full of territorial disputes over oil-rich undersea territories. Various countries are poised to acquire nuclear arms in reaction to North Korea’s continued defiance of the U.S. China and South Korea still harbor serious (and justifiable) anger at Japan over WWII atrocities and everybody is worrying about a strong China (and a weak Taiwan). What makes this situation in Asia so dangerous is that all of these lurking disputes could spark military conflicts between wealthy and extremely well-armed states.

As Francis Fukuyama notes, Asia lacks a serious multilateral organization in which all the countries in the region can work out and resolve the various territorial disputes or provide compensation or punishment for damages and atrocities suffered during WWII. Asian countries have no equivalent of the European Court of Justice or the European Court of Human Rights and have rarely (or never) resorted to the International Court of Justice for resolution of disputes. Indeed, the refusal of Asia to jump on the internationalist bandwagon suggests that internationalist Europe is the exception rather than the rule.

So internationalism and international law can’t and won’t save Asia from its future conflicts. In fact, like Europe, it is arguable that U.S. political, economic, and military dominance has up to now been the main stabilizing factor in the region. As this dominance fades, it is up to good-old-fashioned balance-of-power politics by the major actors in the region, including the U.S., to find a way to head off future conflicts that would make us pine for the days when all we had to worry about were international terrorists and the war in Iraq.

The Non-Debate on Bolton

David Brooks defends Bolton's nomination today on very straightforward grounds: Bolton is opposed to creeping global governance in the form of the ICC and a strong U.N. Here's an excerpt:

They know we're not close to a global version of the European superstate. So they are content to champion creeping institutions like the International Criminal Court. They treat U.N. General Assembly resolutions as an emerging body of international law. They seek to foment a social atmosphere in which positions taken by multilateral organizations are deemed to have more "legitimacy" than positions taken by democratic nations.

John Bolton is just the guy to explain why this vaporous global-governance notion is a dangerous illusion, and that we Americans, like most other peoples, will never accept it.

It is interesting that critics of Bolton have refused largely to attack him on policy grounds by, say, criticizing his opposition to the ICC, as Bill Kristol notes here, even though this seems to be the real basis for opposition. Instead, the critics have been scrounging up so-called Republicans like Carl Ford (who donate to Kerry and work for Democrats) to dish dirt on Bolton's management style. This is a classic Washington tactic but it also reveals how opponents of Bolton have been largely unable (or unwilling) to gain traction by exposing his supposedly far-right views.

Inside a Guantanamo Detainee Hearing

A reporter from the BBC reports here on his observation of a hearing conducted by an Administrative Review Board for one of the detainees held by the U.S. at Guantanamo Bay. As I have discussed in the past, elements of the U.S. detention policy, including its process for reviewing the status of detainees is being challenged in U.S. Courts.

This is the famously anti-American BBC, after all, so the tone of the report is certainly critical of the U.S. and sympathetic toward the detainee. Still, it is still worth reading. Some highlights:

Describing the Administrative Review Board

Three military officers sat on the board. None of them were lawyers.

Their job, as they described it, was to review the evidence and come to a recommendation as to whether the detainee constituted a continued threat to the US and should be further detained, or whether he should be transferred to his home country, or released.

Procedural Aspects of Hearing

At the detainee's side was an "Assisting Military Officer". His role was to assist the detainee in presenting his case, but he appeared well short of legal representation.

Also present was a "Designated Military Officer", whose role was to present the evidence. He did not resemble a prosecutor. There was no adversarial argument.

Use of Classified Evidence

The officers went into a classified session during which they would hear secret evidence.
And the detainee would never know what secret evidence against him existed.

Final Observations

We were struck by the cursory nature of the questioning, and the absence of an attempt to reconcile conflicting claims as to what the young, sullen detainee had actually done.

One of the problems with the BBC reporters' implicit criticisms, of course, is that the hearing he observed (as he admits) is not supposed to be a legal hearing to determine innocence or guilt. The ARB, like the Combatant Status Review Tribunals, are supposed to make basic administrative determinations. Only the military commissions (being challenged as I discussed here) are anything like a criminal trial in that they will adjudge guilt and exact punishment. So it is not shocking that detainees have no lawyers, that none of the board members are lawyers, and that secret evidence is being used. Non-POW detainees in previous U.S. military conflicts were unlikely to have received any better treatment. Nor would other countries have acted differently in their own conflicts (just ask those Algerians detained by French authorities during the Algerian war). And few if any of them ever managed to get the type of treaty, international law, or constitutional arguments that the Guantanamo detainees have made before a federal court (As I discuss here).

This is not to say, however, that the circumstances of this current war might not require new standards and new methods. In the past, the enemy government would protect the rights of its nationals being detained by U.S. authorities (essentially through its reciprocal treatment of U.S. detainees) and peace would result in the exchange and release of prisoners. But there is no official "enemy" government here and there is no one to make peace with or even negotiate with. So perhaps the situation may call for new measures to deal with this reality. I am certainly open to this view.

But critics have rarely been tempered in their denunciation of the Guantanamo Bay procedures preferring instead to declare the whole thing "lawless." These critics need to remember that their efforts to apply civilian legal processes (the idea of due process, the right to a hearing, legal representation, etc) to the detention of enemy combatants in the war on terror represents a departure, and not conformity with, the traditional understanding of how the military handles wartime detentions of non-POWs. Even the classification of POWs or the mistreatment of POWs has rarely been the subject of civilian court review. Such a departure from tradition and modification of the laws of war might be justified given the unusual circumstances of the war on terror, but it might not be. (Indeed, as Kenneth Anderson points out here, many of the groups claiming the right to "write" the new laws of war are themselves self-interested advocacy groups who don't have any more authority, and probably less, than the U.S. military.)

This is why I view many of the issues surrounding the Guantanamo detentions less as a legal question than a difficult question of policy. Introducing civilian judicial review of detention of foreign combatants, POWs or not, is a remarkable shift in U.S. jurisprudence and our understanding of the role of federal courts in supervising the military. It may be the right thing to do given the unusual nature of this war, but I think it is a much more difficult question than critics have suggested.

ICRC as Proxy in Customary International Humanitarian Law

Chris's and Ken Anderson's posts raise some fascinating questions about the ICRC and its recently promulgated rules of customary international humanitarian law. I agree with Ken that -- even accepting as true ICRC's bias against the US -- Rivkin and and Casey go too far in suggesting that the US rethink its generous support of ICRC. ICRC does much more than simply report on compliance with laws of war. Their humanitarian operations in war zones and areas hit by natural disasters are effective, efficient and very much needed. Let me suggest that perhaps the ICRC has another role to play in coordinating the codification of rules governing war: that of proxy for non-state parties affected by war. Of course the US is the most active military in the world and what it knows of warfare and military necessity are relevant to defining emerging norms. But the rules are rules precisely to protect the least powerful actors from the most powerful. In the case of war, those are the individual civilians (and the NGOs that serve them) who find themselves displaced, homeless, vulnerable to exploitation, death by disease and other degradations. It is this constituency that needs the most protection -- from state parties, insurgent groups, terrorists, etc. -- during conflict. To use a very coarse analogy from the domestic context, we don't let police forces -- on their own -- write the rules governing appropriate use of physical force during an arrest. We take into account what a police officer (taking into account available technology) would deem reasonable in light of the surrounding circumstances. But we don't give them carte blanche.

But Ken and Chris raise a good question about CIL generally: can you claim "custom" out of treaties or protocols that one state, the largest and militarily most active state, has refused to sign? I agree with Ken that the rules of war have lost their element of reciprocity when custom can be declared from treaties without regard to the signatories. Part of the problem may be that modern warfare is much messier than the past. Fast-changing military and information technology blur the distinction between military and civilian targets, combatants and non-combatants, terrorists and insurgents, POWs and hostages. The customary laws governing warfare are by definition backward-looking, assessing the practice of parties in past conflicts to determine what the rules should be in future conflicts. But as Greg Fox points out, the US military much prefers these backward-looking rules and fitting them to new circumstances than no rules at all.

Bolton: Soft on the U.N., Law of the Sea Supporter

Despite relentless attacks from establishment media like the NYT (who called him the "worst of some bad nominees"), it looks like John Bolton will be confirmed as U.N. Ambassador. Curiously, very few of the news reports of his testimony yesterday highlighted the ways in which this so-called hardliner has adopted pro-internationalists positions. The FT is the only account I've seen that points out that:

But Mr Bolton professed considerably more sympathy for UN affairs than some critics may had feared.

He argued in favour of paying the US's financial dues and said he supported many international legal instruments, including the Law of the Sea, and believed Kofi Annan, UN secretary-general, should stay on.

Mr Bolton even acknowledged, somewhat to the concern of Norm Coleman, the Republican senator who has called for Mr Annan's resignation, that member states bore as much, if not more, responsibility as the secretariat for failures, as in the oil-for-food programme.

"We must never lose sight of the reality that ultimately it is member governments that must take responsibility for the UN's actions, whether they be successes or failures," said Mr Bolton.

This sounds very reasonable to me, and I don't understand why that would be very unreasonable to any progressive internationalist-types, who should be thrilled that the administration's so-called hardliner far-right diplomat is stuck with a number of very pro-internationalist positions that he can't really back away from. The yelling here should not be on the pro-internationalist left, but on the anti-internationalist right.

Kenneth Anderson on Who's Writing the Laws of Armed Conflict

Kenneth Anderson has some thought-provoking comments on the evolution of the customary norms of armed conflict here, as part of a longer post on an article by David Rivkin and Lee Casey on the ICRC's views. (I should state that, generally speaking, I find Rivkin and Casey's essays to be quite unpersuasive and a little paranoid. This David Rivkin, by the way, is not to be confused with David Rivkin from Debevoise, one of the deans of international arbitration.)

The gist of Ken's analysis is that those who aren't really involved in extensive military deployments (European states and NGO's) are particularly involved in defining the evolving customary norms on armed conflict although they don't have a realistic appreciation of the modern realities of military necessity. I haven't read the ICRC's recently released three volume compendium on the customary international laws of war so I can't comment directly on its substance. Ken's critique, though, points out the ongoing problems of defining customary international law in a practicably workable fashion, an issue which every international lawyer of any political stripe should face head-on

Customary international law is a consistent practice by a relvant group of states based on a sense of legal obligation that becomes legally binding on all states that do not object to the norm. Ken's post goes to the definitional issue of which states should be considered "relevant" states in defining a customary norm. A question I will simply leave open is whether the U.S. should essentially be considered an "indispensible party" for the evolution of customary norms of armed conflict as it has the largest international deployment of troops, etc. That is, if the U.S. doesn't explicitly sign on, not only is it not bound by the alleged customary norm, but you can't even really say such a norm has risen to the level of being customary international law (as you don't have the relevant set of states practicing in this way). I don't know if I agree with this idea, but I'll toss it out as an idea and see if Julian, Peggy, Ken, or anyone else has any thoughts on this...

One other thing: Ken had spoken at the recent ASIL Annual Meeting and, if I remember correctly, he (or someone else on his panel) had made a related point to this post but about treaties, as opposed to customary international law: parties that tend to negotiate treaties on the laws of armed conflict tend not to be the one's taht actually fight with each other. In other words, the Europeans and Americans coming to agreement on laws of armed conflict is all well and good but next war we fight is not likely to be with France, no matter how much they annoy us at times (and we, them).

This is a topic for another post, but it does lead one to think about how we can get the laws of armed conflict to evolve in this environment. For two takes on this, see Thomas Barnett's essay in Wired and Martin van Creveld's book, The Transformation of War.

Both observations, the one on customary law and the one on treaty law, are sobering thoughts and Anderson's blog is well worth the read to learn more about law and war. At the heart of this is my belief that usable laws of armed conflict are needed now, more than ever. The question is whether and how they need to evolve to take into account the changing nature of conflict.

Annan Outlines A New UN Human Rights Council

In a speech last Thursday to the UN HR Commission, Kofi Annan laid out his vision for a new Human Rights Council to replace the very Commission he was addressing. He noted that the Commission's ability to perform the tasks for which it was formed has been both overtaken by new challenges and by the politicization and selectivity of its work. He proposes scrapping it in favor of a Human Rights Council, whose membership would be elected by at least 2/3 of the General Assembly. Only those states that themselves meet minimal standards of accountability for human rights violations would qualify for membership. In other words, no more embarassments whereby Libya and Sudan have gained seats on the current HR Commission. Moreover, Annan sees it as a chamber that would have broad authority for peer review -- evaluating the performance of ALL states against their obligations under the main human rights instruments. I am not one to normally argue that change for the sake of change is a good thing. But it is hard to imagine that this new Council will be worse than the Commission. (See my earlier discussions here and here.) As the proposal develops and more commentary is available, I will keep you all posted.