Readings for Conflict Resolution class, Oct. 5
"Approaches to peace" David Barash
Subject: International law
Inadequate mainly because no clear-cut enforcement mechanism
But it will be what we make of it.
Schemes of ending wars often founder at state level: state undermines or at best diminish the authority & effectiveness of int'l org
an unavoidable tension arise b/w state-centered world system and one organized around different fundamental values
state centerdness legitimize the use of violence for setting dispute
suggest superiority
prospect for disarmement difficult in appearance
"our current world syst works strongly against peaceful ethical or religious resolutions of conflict.
... makes it very difficult to deal effectively with problems that cross traditional borders.."
Classical writtings:
Francisco de victoria: thesis that war must be morally justifiable, 16th C
Hugo Grotius: "on the law of war and peace" 1625: "law of nature" that transcend law of nations, emanates from the fact that people are all ultimately of the same community. From him derives concept that states must avoid interferring in affairs internal to other states. Legitimacy f int'l law derives from legitimacy of national laws. "natural state" must govern interactions among states, they can be regulated, thiis regulation supercedes state authorities: international society exist.
Jeremy Bentham "principles of int'l law" (1783): first use of coinage "int'l law"
3 sources of int'l law:
1 - custom
"rule of diplomatic protocol"
"rules" are in the interest of all countries since if the representatives of opposing states could legally be harrassed, communication between states could quickly cease, to the disadvantage of all sides.
diplomatts are allowed a substantial leeway, including the ability to communicate freely and secretely with their home gov, as well as garantees on their safety.
2_ treaties
analogous to contracts among individuals
backing away from treaty obligations result in substantial loss of face and once treated a treaty-braker, a state may not be able to establish useful, reliable relationships with other states.
"rules of the road", beneficial to each sides: states have a strong interest in abiding by them.
3- courts
Int'l law requires courts to hear disputes and render decisions.
best known is int'l court of justice in La Hague, Netherlands.
Rotating membership of world jusrist
issues decisions about int'l law that are generally considered authoritative, although typically un-enforcable.
but: states are more and more accustomed to the idea of letting go enough sovereignty to settle dispute in court instead of in combat. Adherence to the dictates of the world court are "consensual", it iis up to the consent of the convicted!... community in which accused lawbraker could only be brought to trial if they agree!
Problem of enforcement
individual states insist on ther siovereignty. most emphatically do not recognize that any authority supercedes their own. Insist on a kind of latitude that they would never allow their own citiizens.
role of sanctions: 3 primary incentives: self-interest, duty and coercion.
rules followed out of purely utilitarian purposes. for the benefit of all. you have some confidence that others will also respect the law just as you do.
as member of a sociaty, individuals assumes some sort of responsibilty toward it and self-regulates himself: kantian categorical imperative.
world scene actors that defects: world opinion likely to disapprove and leads to ostracism, possible economic, political cultural sanctions. governments themselves have a strong stakes in their own legitimacy.
states sovereignty
states are not all "rational actors": 1/4 of all wars are civil
states do not enter treaties unbless they are willing to abide by it. they're exist usual reserves to withdraw within a given period of time if "supreme national interest" is jeopardized by terms oof treaty. who makes that decision? state itself.
states are political entity that have a monopoly over legitimate use of violence.
state goes to war because, says they:
they defend themselves (Israel 6 days war)
they are fulfilling treaty obligations (WW1)
they are intervening on the side of legitimate authority (US in vietnam)
the situation is anarchic and there is no legitimate authority (UN in Congo)
the conflict is within the realm of int'l organisations (UN, 1991 Gulf War)
in short, state sovereignty continues to reign, although semblance of int'l law is invoked. states are hesitant to circumvent day-to-day authority.
Law is important, crucial to civilization. law as antithesis of rule by brute force
critique of int'l law:
3rd world cuontries, revolutionary states: "int'l law established by and for western powers in support of their domination".
int'l law must be flexible
"hidden strenght of int'l law": compliance are non-events
because democratic government have a long-range interest in settling disputes amicably, that supercedes any short-term interests in winning a given dispute, they tend to abide by legal ruling, even those they dislike.
major powers are less likely to abide by law unless opponnents are so balanced that the potential cost of losing a case are less than those of further wrangling, and possibly war
violation of law are often sensational and dramatic whereas compliance is taken for granted, a non-event.
law of war (!)
since there is no higher authority than state, no state is making law "illegaly"
but war can be defined as followed: "the legal condition which equally permits two or more hostile groups to carry on a conflict by armed forces". - war represents a highly formalized interval during which violence may legitimately be practiced
Nuremberg principles
individuals are personally liable to criminal prosecution for crimes against intl law.
nuremberg charter:
1 crimes against peace (planning, preparing, initiating or waging a war of aggression)
2 crimes against humanity (murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian populations
3 war crimes, namely violations of laws and customs of war (violations against civilian pop, ill-treatment of POW, killing of hostages, plunder of public and private property, wanton destruction of cities, etc...
Tokyo principles:
Crime of omission: illegal failure to act
allowances for "military necessity": inherent right of individual or collective self-defense" art.51, UN Charter
Subject: International law
Inadequate mainly because no clear-cut enforcement mechanism
But it will be what we make of it.
Schemes of ending wars often founder at state level: state undermines or at best diminish the authority & effectiveness of int'l org
an unavoidable tension arise b/w state-centered world system and one organized around different fundamental values
state centerdness legitimize the use of violence for setting dispute
suggest superiority
prospect for disarmement difficult in appearance
"our current world syst works strongly against peaceful ethical or religious resolutions of conflict.
... makes it very difficult to deal effectively with problems that cross traditional borders.."
Classical writtings:
Francisco de victoria: thesis that war must be morally justifiable, 16th C
Hugo Grotius: "on the law of war and peace" 1625: "law of nature" that transcend law of nations, emanates from the fact that people are all ultimately of the same community. From him derives concept that states must avoid interferring in affairs internal to other states. Legitimacy f int'l law derives from legitimacy of national laws. "natural state" must govern interactions among states, they can be regulated, thiis regulation supercedes state authorities: international society exist.
Jeremy Bentham "principles of int'l law" (1783): first use of coinage "int'l law"
3 sources of int'l law:
1 - custom
"rule of diplomatic protocol"
"rules" are in the interest of all countries since if the representatives of opposing states could legally be harrassed, communication between states could quickly cease, to the disadvantage of all sides.
diplomatts are allowed a substantial leeway, including the ability to communicate freely and secretely with their home gov, as well as garantees on their safety.
2_ treaties
analogous to contracts among individuals
backing away from treaty obligations result in substantial loss of face and once treated a treaty-braker, a state may not be able to establish useful, reliable relationships with other states.
"rules of the road", beneficial to each sides: states have a strong interest in abiding by them.
3- courts
Int'l law requires courts to hear disputes and render decisions.
best known is int'l court of justice in La Hague, Netherlands.
Rotating membership of world jusrist
issues decisions about int'l law that are generally considered authoritative, although typically un-enforcable.
but: states are more and more accustomed to the idea of letting go enough sovereignty to settle dispute in court instead of in combat. Adherence to the dictates of the world court are "consensual", it iis up to the consent of the convicted!... community in which accused lawbraker could only be brought to trial if they agree!
Problem of enforcement
individual states insist on ther siovereignty. most emphatically do not recognize that any authority supercedes their own. Insist on a kind of latitude that they would never allow their own citiizens.
role of sanctions: 3 primary incentives: self-interest, duty and coercion.
rules followed out of purely utilitarian purposes. for the benefit of all. you have some confidence that others will also respect the law just as you do.
as member of a sociaty, individuals assumes some sort of responsibilty toward it and self-regulates himself: kantian categorical imperative.
world scene actors that defects: world opinion likely to disapprove and leads to ostracism, possible economic, political cultural sanctions. governments themselves have a strong stakes in their own legitimacy.
states sovereignty
states are not all "rational actors": 1/4 of all wars are civil
states do not enter treaties unbless they are willing to abide by it. they're exist usual reserves to withdraw within a given period of time if "supreme national interest" is jeopardized by terms oof treaty. who makes that decision? state itself.
states are political entity that have a monopoly over legitimate use of violence.
state goes to war because, says they:
they defend themselves (Israel 6 days war)
they are fulfilling treaty obligations (WW1)
they are intervening on the side of legitimate authority (US in vietnam)
the situation is anarchic and there is no legitimate authority (UN in Congo)
the conflict is within the realm of int'l organisations (UN, 1991 Gulf War)
in short, state sovereignty continues to reign, although semblance of int'l law is invoked. states are hesitant to circumvent day-to-day authority.
Law is important, crucial to civilization. law as antithesis of rule by brute force
critique of int'l law:
3rd world cuontries, revolutionary states: "int'l law established by and for western powers in support of their domination".
int'l law must be flexible
"hidden strenght of int'l law": compliance are non-events
because democratic government have a long-range interest in settling disputes amicably, that supercedes any short-term interests in winning a given dispute, they tend to abide by legal ruling, even those they dislike.
major powers are less likely to abide by law unless opponnents are so balanced that the potential cost of losing a case are less than those of further wrangling, and possibly war
violation of law are often sensational and dramatic whereas compliance is taken for granted, a non-event.
law of war (!)
since there is no higher authority than state, no state is making law "illegaly"
but war can be defined as followed: "the legal condition which equally permits two or more hostile groups to carry on a conflict by armed forces". - war represents a highly formalized interval during which violence may legitimately be practiced
Nuremberg principles
individuals are personally liable to criminal prosecution for crimes against intl law.
nuremberg charter:
1 crimes against peace (planning, preparing, initiating or waging a war of aggression)
2 crimes against humanity (murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian populations
3 war crimes, namely violations of laws and customs of war (violations against civilian pop, ill-treatment of POW, killing of hostages, plunder of public and private property, wanton destruction of cities, etc...
Tokyo principles:
Crime of omission: illegal failure to act
allowances for "military necessity": inherent right of individual or collective self-defense" art.51, UN Charter
posted by Jean-Sébastien Lévesque at 8:42 PM
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