Archive for November, 2008

Discussion Paper: “Doing Justice: The Politics and Economics of International Distributive Justice” by Joel Trachtman

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , , , , on November 24, 2008 by jeremyleong

 

We just posted a discussion paper by Prof. Joel Trachtman. This paper was presented at a recent ASIL conference on distributive justice and international economic law. (See https://fletcherfila.wordpress.com/2008/10/26/asil-symposium-on-distributive-justice-and-international-economic-law/) To an extent, this short piece is like the interdisciplinary law scholar’s manifesto. Essentially, Trachtman sketches out the different roles that political science, economics and sociology can play in distributive justice discourse.

 

Importantly, he identifies each discipline’s strengths and weaknesses as analytical tools and where one discipline can cover the weaknesses of the other. His point? The endeavor of distributive justice is itself interdisciplinary. Has Trachtman taken morality discourse away from the exclusive domain of the moral philosopher and placed it in all our hands?

 

I don’t think so. If anything, Trachtman has provided a framework in which moral discourse which finds itself in a legal framework can be critiqued. For example, suppose one argues that Law A should be enacted because it provides distributive justice in a strictly Rawl-sian sense. Trachtman would point out that this argument suffers from “limited consensus”; “limited knowledge of causation”; “limited knowledge of remedies”; or “limited inducement”. Read the paper to find out what he means by this.

 

Different disciplines simply bring different notions of normativity. Moral normativity and legal normativity are merely pieces of the human puzzle. Maybe the complexity of human thought makes it difficult for us to wantonly rule out anything analytical tool. Yet, thanks to Trachtman, at least we have a framework in which we can evaluate the utility of those tools.

 

The paper can be found at http://fletcher.tufts.edu/FILA/pdf/FILADiscussionPaperNo0108.pdf.

 

As always, please feel free to respond or comment.

  

Financial Crisis: Views on the G-20 Communique and International Cooperation

Posted in General Thoughts and Comments with tags , , , , , on November 18, 2008 by jeremyleong

 

Dani Rodrik and Daniel Drezer both offered their views on the results of the recent G-20 meeting and communiqué. (See http://rodrik.typepad.com/dani_rodriks_weblog/2008/11/and-now-the-real-g-20-communiqu.html and http://danieldrezner.com/blog/?p=4059 respectively.)

 

In short, despite his low initial expectations, Rodrik could not hide his disappointment. His complaint, “(t)here is no coordination in the fiscal arena, the promises made to emerging markets are vague, and even though there is a clear statement on protection and export subsidization, there is no monitoring or enforcement mechanism.” Drezner is more sanguine. He actually found some laying of groundwork for actual reform of global governance structures through the IMF and an expanded Financial Stability Forum.

 

My question: Is this all the cooperation we can get? No, I am not retracting previous posts on the possibility of international cooperation in the wake of the financial crisis. (See https://fletcherfila.wordpress.com/2008/11/13/update-financial-crisis-and-international-cooperation-a-diplomatic-angle/, https://fletcherfila.wordpress.com/2008/10/12/financial-crisis-cooperation-and-a-global-new-deal/ and https://fletcherfila.wordpress.com/2008/10/06/financial-crisis-an-opportunity-for-international-law/.)

 

I think more exciting times will be upon us. When the crisis bottoms out, I sense the opportunity for greater strategic behavior from stakeholders in the international financial system. For example, the investors with liquidity at that time will start to attack and regulators can either choose to defend or play along. Perhaps, it is only then that we see some real incentives for cooperation and coalition building between domestic and international regulators and even investors. Right now, all that everyone can do is agree (weakly) that something must be done for governance. Hardly exciting news to me.

John Bellinger’s Keynote at the International Symposium on International Criminal Justice

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , , , , , on November 17, 2008 by jeremyleong

 

Over the weekend, the Fletcher School held an international symposium on international criminal justice. Current State Department Legal Adviser John Bellinger delivered the keynote address, “US Perspectives on International Criminal Justice”. The text of the speech can be found at http://www.state.gov/s/l/rls/111859.htm. Based on the speech, it appears that the US policy does not fundamentally resist the application of norms of international criminal justice. Bellinger quite clearly stated that the US has supported various ad hoc international tribunals such as the Special Court for Sierra Leone, the ICTR and ICTY and the Khmer Rouge Tribunals. Yet, the concerns regarding the ICC, in particular, the concerns of the US military, were equally unequivocally expressed.

 

Some folk at Opinio Juris had something to say about the speech which prompted a reply from Mr. Bellinger. (See http://opiniojuris.org/2008/11/15/bellinger-on-international-criminal-justice/ and http://opiniojuris.org/2008/11/16/john-bellinger-responds-to-my-post/.) The crux of the debate being that the speech had not adequately addressed concerns such as “not giving the Security Council (and the US, with its permanent veto) control over the ICC’s docket, not exempting Americans from the territorial jurisdiction of the Court, etc.” 

 

That aside, from an analytical standpoint, the US view of international criminal justice may provide a nice example for study of “tipping points” to commitments to international treaty obligations. Are there common “tipping points” which influence whether the US joins a treaty or not? It may be worthwhile to review a variety of international treaty negotiations and see if there are nuanced commonalities where the US has signed and ratified and where the US has not. I suspect that some regression analysis would be required. Perhaps, a list of causal variables may be produced from there. Domestic causal variables will certainly be important. This may shed some light on the divide between concluded treaties and “what could have been” treaties and could assist international policy makers in crossing that divide.

 

We are expecting to post some of the papers from the symposium as discussion papers soon. In particular, some outstanding work was presented on changing the preferences of stakeholders in the international justice system. Look out for that.

Update: Financial Crisis and International Cooperation (A Diplomatic Angle)

Posted in General Thoughts and Comments with tags , , , , , , on November 13, 2008 by jeremyleong

As an update to https://fletcherfila.wordpress.com/2008/10/12/financial-crisis-cooperation-and-a-global-new-deal/ and https://fletcherfila.wordpress.com/2008/10/14/frigid-financial-markets-and-ice-caps/, I am posting a BBC article on the prospects of a shift in the existing balance of power in the wake of the current financial crisis (http://news.bbc.co.uk/2/hi/in_depth/7724298.stm). This article is particularly interesting because it provides some analysis on a possible new balance of power which will follow from the rise of Asia and the decline of Western economies.

 

The language of a “new balance of power” reminds me of a piece by Martin Wight, “The Balance of Power”, in: Herbert Butterfield and Martin Wight (eds.), Diplomatic Investigations: Essays in the Theory of International Politics, 149, (1968). Wight argues that there are a variety of definitions of “balance of power”; use of any particular one depends on the speaker and the audience. In my mind, this language is too anomalous and not quite useful.

 

Perhaps, as noted in previous posts, a more effective exercise would be in a more rationalist analysis of the incentives and disincentives for cooperation or competition between various actors. In particular, I expect regulatory competition in the finance sector between states to be of some importance. Moreover, in this rationalist analysis, a temporal factor, as always, will be at play. Some states will be looking for pay off immediately while perhaps other states may be able and willing to hold out on cooperation in favour of more long term returns.

 

As always, thoughts, comments and criticisms are welcome.

The Death of Conservative Intellectualism (Some Say)

Posted in General Thoughts and Comments with tags , , , , on November 9, 2008 by jeremyleong

 

Warning: This post is not really about international law per se. It will, however, pretend to say something about globalization and the permeation of political ideals.

 

Yesterday’s WSJ has a thoughtful piece about the demise of conservative intellectual tradition in the US. See http://online.wsj.com/article/SB122610558004810243.html. Mark Lilla at Columbia University reviews where the conservative intellectual tradition stands today, in the aftermath of Republican defeat in the US Presidential Elections. His prognosis, “(t)he Republican Party and the political right will survive, but the conservative intellectual tradition is already dead. And all of us, even liberals like myself, are poorer for it.”

 

I am, by no means, a credible commentator on American politics. However, I know that American politics is not “the be all and end all” of, well, all politics. There is reason to believe that conservative political thought is alive and well in some parts of the world. (Definitely so, in parts of Asia and Europe.) In the event that Prof. Lilla is correct, is there opportunity for conservative political thought in the US to rejuvenate itself from the outside? Can American political thought gain from that of other states?

 

The logical answer is: Of course. It has from its inception. The US Declaration of Independence echoes John Locke and Montesquieu, as does the Federalist Papers. The fact is that political thought has time and again transcended territorial barriers. I think of Metternich during the Congress of Vienna as an old example. Some say that the Congress of Vienna was an international agreement to suppress revolutionary ideals in favour of conservative policy all across Post-Napoleonic Europe. Today, inklings of liberal political thought can be found in human rights instruments, international trade agreements etc etc.

 

Then, the pertinent inquiry shifts to whether American political thought has become so insular that it will resist the permeation of any values from the outside. In a “flat” world where information and discourse is transmitted seamlessly and rapidly, there is no reason why it should. Access to foreign sources of political thought is widely available to the American polity. To say that American political thought has nothing to gain from outside will be nothing short of intellectual arrogance. However, it would not be incomprehensible arrogance. The perception that the US has been a political “thought leader” for the past half century and beyond is a very palpable one. Nonetheless, if conservative politicians in the US consider that some intellectual rebirth is needed, there is no harm looking for it beyond American soil.

 

 

As for the ultimate question of whether the US conservative intellectual tradition is, in fact, dead? Perhaps, Prof. Daniel Drezner will have something to say about it on his blog (or even ours).

Obama, Change and International Law

Posted in General Thoughts and Comments with tags , , , , , on November 6, 2008 by jeremyleong

 

The votes were tallied as the world waited. The results were announced and history was made. America got her new President. Change was the promise. With a Democratic party dominated Congress as well as the possible opportunity for President-Elect Obama to pick 2 Supreme Court Justices during his term in the White House, this is certainly a good time for the President-Elect to make good on his promise.

 

How well does an Obama administration bode for international law? During the Presidential Primaries, ASIL conducted a survey of the various positions taken by candidates on international law issues. Obama’s responses in this survey generally signal a shift in US policy from unilateralism to multilateralism as well as an emphasis on the need for better compliance with international law so as to enhance US ability to influence international law creation and promote American values abroad. However, on particular issues, the existing international obligations and rules seemed unsatisfactory. For instance, he, in the course of the campaign, strongly advocated the re-negotiation of NAFTA as well as supported humanitarian intervention in Sudan. See http://www.asil.org/obama.cfm as well as a previous post on intervention: https://fletcherfila.wordpress.com/2008/10/06/intervention-some-food-for-thought-on-a-fletcher-favourite/.

 

Two issues come to mind.

First, perhaps, only time will be able to separate meaningful policy statements from campaign rhetoric. Of course, this would have been a necessary concern regardless of whoever won the election. However, there already has been some controversy in the Canadian media over Obama’s commitment to re-negotiate NAFTA. See http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080227/dems_nafta_080227/20080227?hub=CTVNewsAt11. Furthermore, adherence and compliance to international law takes more than executive policy and the new administration will be operating under domestic political constraints. Such is the wisdom of Putnam’s Two Level game.

 

Second, social constructivists may have some fun in examining the idealation effects that Obama and his “Change” campaign will have on international law creation. Will US values and preferences become more accepted in other states to the extent that these foreign values and preferences change? To what extent will this change be attributable to the strength of the Obama message? Also, high expectations can be a double-edged sword. In the event that the new administration fails to live up to its promises, what impact will the subsequent disappointment have on US ability to change foreign values and preferences? What can public diplomatists do to manage expectations?

Limits of Law/Limits of Science?

Posted in General Thoughts and Comments with tags , , , , , , on November 4, 2008 by jeremyleong

The previous post (https://fletcherfila.wordpress.com/2008/10/30/international-law-science-broadly-speaking-and-technology/) discusses international law’s relationship with science. It was considered that science plays (and has the potential to play) a significant role in helping lawyers decide if international law has been complied with. One example provided was the SPS Agreement in the WTO. The recent WTO Appellate Body Report in EC-Hormones II (http://www.worldtradelaw.net/reports/wtoab/us-hormonessuspension(ab).pdf) sheds some insight on how this plays out. 

In cowardly fashion, I had resisted from blogging about this case until the experts at the International Economic Law and Policy Blog (http://worldtradelaw.typepad.com/ielpblog/) had provided their views.

 

In this case, the EC claimed that it had removed its illegal measures pursuant to the DSB finding in EC-Hormones I. Accordingly, it alleged that continued suspension of concessions and other obligations by the US and Canada without further recourse to a “compliance panel” pursuant to Article 21.5 of the DSU violated the DSU. Prof. Pauwelyn summarizes the findings at http://worldtradelaw.typepad.com/ielpblog/2008/10/is-the-bloodbat.html. In particular, the Appellant Body held that commencement of proceedings pursuant to Article 21.5 is the duty of all parties to the dispute and that all parties had violated the DSU by failing to do so. The end result: an Article 21.5 “compliance panel” is to be requested and the entire affair re-heard. So far, most commentators have viewed the decision favorably.

 

What is most indicative is the amount of reliance placed on scientific evidence as a result of the deal struck in the SPS Agreement. Accordingly, adjudication of compliance will turn on expert evidence adduced by litigants. What happens then if the experts disagree (as was the case here)? In order to address this issue, the Appellate Body has placed a distinction between “scientific uncertainty” and “insufficiency of evidence”. Joanne Scott notes the difficulty in making this distinction in her post. (Followed by some discussion on whether this distinction is procedural or substantive) “Is the idea here that scientists can reasonably disagree about how to interpret the results of risk assessment, even when they recognise that the risk assessment is valid?” (http://worldtradelaw.typepad.com/ielpblog/2008/10/2-quick-points.html)

 

So, to recap, the SPS Agreement embodies a political compromise which allows international law to defer to scientific findings. In a way, science becomes a secondary escape valve for political pressure. (Law being the primary one.) However, a cynic may say that these scientific findings may become politicized where conflicting and opposing experts are relied upon by litigants. Regardless, the Appellate Body tries to reconcile possible conflicting scientific evidence by recourse to legal language.

This begs an institutional question about the SPS Agreement’s place in the WTO DS system then? If science was meant to be the tiebreaker in the SPS Agreement? Why the additional loop back to law? I suppose the DSU and Article 21.5 were intended to cater to broader (less-scientific) disputes. However, if increased litigation over the SPS Agreement is contemplated, would a “carve out” which places final adjudication in the hands of a panel of purely scientific arbitrators be feasible? That way, the DS System may be saved the trouble of distinguishing what is evidentially insufficient and what is scientifically uncertain and can merely defer to this scientific panel.