Transcript A MORAL CRITIQUE OF U.S. FOREIGN POLICY

A MORAL CRITIQUE OF U.S.
FOREIGN POLICY
INTERNATIONAL LAW AND GENUINE COMMUNITY
I Pledge Allegiance to . . . .
Sanford Levinson’s encounter with the Constitution . . .
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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.
Reclaiming our Values
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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 stance—one based
on equal membership in a community of nations
under the rule of law.
International Affairs at a
Paradigm Crossroads
TRADITIONAL PARADIGM
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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
Challenges to the Existing Paradigm of
Positivism and Sovereignty
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Pure legal positivism insufficient to justify
Nuremberg indictments
UN Declaration of Human Rights and the growing
focus on individual natural rights
Humanitarian Interventions—Somalia, Rwanda,
Bosnia and Kosovo, East Timor
Maturing of International Law--International
Criminal Court and the European Court of Human
Rights
Terrorism—non-state actors using violence on a
war-like scale against civilians
New Era?
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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:
1. That there are ALTERNAITVES,
2. That these paradigms are human constructs,
and
3. That we have the responsibility to build the
best system that we can.
Here is my view of the choice that we face. . .
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
Wild West Analogy
When evaluating the Bush administration’s
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
There are good reasons to cast the U.S. as an
international outlaw
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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.
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 won’t 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
Active Opposition to the Emergence of Effective
International Legal Order
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We have also refused to ratify:
• Vienna Convention on the Law of Treaties
• Law of the Sea Treaty
• The American Convention on Human Rights
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And we refused to substantively
participate in the Johannesburg
Conference on Sustainable Development
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?
Other Elements of the
American Imperialist Paradigm
• Inequality—our interests trump the
needs, desires or rights of others
• Positivism—Strong sovereignty (for us)
and there are no rules that limit us
except those that we have explicitly
accepted
• Unilateralism—our WILL alone
determines what we can or ought to do
Hegemony and Empire
Alternative to American Imperialism
EQUAL MEMBERSHIP IN A COMMUNITY
UNDER THE RULE OF LAW
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Multilateralism
Rule of Law
Human Rights
Equality
Reason and Universalizability
The Community Paradigm
constitutes 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 Universalizability—consistency
in principle, and
 The Rule of law
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 I’ve
decided to do
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No nation will have a veto and no one will have
legitimate recourse to violence, except in
legitimate self-defense
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There will be a deeper sense of democracy and
citizen participation in the process
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.
Fairness will show up as . . .
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Equality– each member of the
community will have the same
powers, privileges, and immunities.
Global Citizenship—We cannot be
free riders in the global community.
If we benefit from the cooperation of
others, we must fulfill our duties of
membership.
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.
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.
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.
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 Principle—The 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.
Precedent captures the moral
requirement of universalizability
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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.
Precedent under the Rule of Law
If we want the Somali’s 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.
Equality will show up as a
diminution of nationalism
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Nationalism is a narcissism of minor
differences – Michael Ignatieff
Nationalism is a fiction that requires
a willing suspension of disbelief
Human Rights
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We create our own reality. If enough
people speak within the narrative of
human rights, then they become a
reality that must be acknowledged.
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
Pluralism
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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.
Conclusions
The Community Paradigm is morally
superior to the Empire alternative.
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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
Conclusions
The Community Paradigm has superior
policy implications. Thus, from
within that paradigm, the U.S. will
sign and ratify:
1. Vienna Convention on the Law of
Treaties
2. The International Criminal Court Treaty
3. The American Convention on Human
Rights
4. The Treaty to Ban Landmines
5. The Law of the Sea Treaty
Conclusions
From within the Community Paradigm, we
will:
1. Permanently submit ourselves to the
jurisdiction of the World Court.
2. Promote and strengthen international law
and its institutions.
3. Neither threaten nor act outside the authority
granted to us by the United Nations Security
Council.
4. 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.
Important points to preserve
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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.
We must preserve individual liberty
within community. Maoism or Borg-like
collectivism is not acceptable.
We are morally permitted to show a
limited bias in favor of our family,
friends, and fellow citizens.