Moral Critique

8/4/2019 Moral Critique

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A MORAL CRITIQUE OF U.S.A MORAL CRITIQUE OF U.S.

FOREIGN POLICYFOREIGN POLICY

INTERNATIONAL LAW AND GENUINE COMMUNITYINTERNATIONAL LAW AND GENUINE COMMUNITY


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I Pledge Allegiance to . . . .I Pledge Allegiance to . . . .

Sanford Levinsons encounter with the Constitution . . .Sanford Levinsons encounter with the Constitution . . .

Was this the Constitution without the Bill of Rights?Was this the Constitution without the Bill of Rights? Without the Civil War Amendments?Without the Civil War Amendments? Without the 19Without the 19thth Amendment that guaranteed women theAmendment that guaranteed women the

right to vote?right to vote?

Given the moral gravity of these changes, he had toGiven the moral gravity of these changes, he had toask himself whether he could commit himself toask himself whether he could commit himself tothethe currentcurrentConstitution?Constitution?

Given the moral gravity of current affairs, we mustGiven the moral gravity of current affairs, we mustcarefully explore and reawaken our appreciationcarefully explore and reawaken our appreciationfor our deepest values.for our deepest values.


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Reclaiming our ValuesReclaiming our Values

As children, we are raised to believe that ourAs children, we are raised to believe that ourcountry is on the side of justice and goodness.country is on the side of justice and goodness.

However, the moral goodness of the UnitedHowever, the moral goodness of the UnitedStates is not a necessary proposition. Nor is it aStates is not a necessary proposition. Nor is it a

permanent condition.permanent condition. As adults, we are required to make thatAs adults, we are required to make that

determination on the basis of evidence. And nowdetermination on the basis of evidence. And nowis an especially important moment.is an especially important moment.

The core values of the United States areThe core values of the United States are

consistent with, and perhaps ever require, aconsistent with, and perhaps ever require, aradically different international stanceradically different international stanceoneonebased onbased on equal membership in a community ofequal membership in a community ofnations under the rule of law.nations under the rule of law.


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International Affairs at aInternational Affairs at a

Paradigm CrossroadsParadigm Crossroads

TRADITIONAL PARADIGMTRADITIONAL PARADIGM

NationNation--States with Strong SovereigntyStates with Strong Sovereignty

Weak Regime of International Legal InstitutionsWeak Regime of International Legal Institutions

Bilateral or multilateral treatiesBilateral or multilateral treaties----MutualMutualProtection Associations and cooperativeProtection Associations and cooperativearrangements for mutual benefitarrangements for mutual benefit

Lip service towards human rightsLip service towards human rights

JustW

ar TraditionJustW

ar Tradition


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Challenges to the Existing Paradigm ofChallenges to the Existing Paradigm of

Positivism and SovereigntyPositivism and Sovereignty

Pure legal positivism insufficient to justifyPure legal positivism insufficient to justifyNuremberg indictmentsNuremberg indictments

UN Declaration of Human Rights and the growingUN Declaration of Human Rights and the growing

focus on individual natural rightsfocus on individual natural rights Humanitarian InterventionsHumanitarian InterventionsSomalia, Rwanda,Somalia, Rwanda,

Bosnia and Kosovo, East TimorBosnia and Kosovo, East Timor

Maturing of International LawMaturing of International Law----InternationalInternationalCriminal Court and the European Court of HumanCriminal Court and the European Court of Human

RightsRights TerrorismTerrorismnonnon--state actors using violence on astate actors using violence on a

warwar--like scale against civilianslike scale against civilians


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New Era?New Era?

Given these and similar challenges, weGiven these and similar challenges, weare told that we are entering a new eraare told that we are entering a new erain international relations.in international relations.

If we are at the birth of a new paradigm,If we are at the birth of a new paradigm,

we must recognize:we must recognize:1.1. That there are ALTERNAITVES,That there are ALTERNAITVES,2.2. That these paradigms are human constructs,That these paradigms are human constructs,

andand

3.3. That we have the responsibility to build theThat we have the responsibility to build the

best system that we can.best system that we can.Here is my view of the choice that we face. . .Here is my view of the choice that we face. . .


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American Imperialism or Moral Community?American Imperialism or Moral Community?

American ImperialismAmerican Imperialism

American ExceptionalismAmerican Exceptionalism

Weak international lawWeak international law

InequalityInequality

PositivismPositivism

UnilateralismUnilateralism

Moral CommunityMoral Community

EqualityEquality

Rule of LawRule of Law

Equal Concern and RespectEqual Concern and Respect

Natural Law and Human RightsNatural Law and Human Rights

MultilateralismMultilateralism


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Wild West AnalogyWild West Analogy

When evaluating the Bush administrationsWhen evaluating the Bush administrationspreferred paradigm, the best model is topreferred paradigm, the best model is toimagine a 19imagine a 19thth century town on thecentury town on the

American western frontier dominated by aAmerican western frontier dominated by athug who considers himself immune fromthug who considers himself immune fromthe nascent legal order in that community.the nascent legal order in that community.

For Example . . .For Example . . .

LIBERTY VALANCELIBERTY VALANCE


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There are good reasons to cast the U.S. as anThere are good reasons to cast the U.S. as an

international outlawinternational outlaw

In the 1986 Nicaragua case, the US declared itselfIn the 1986 Nicaragua case, the US declared itselfan international outlaw when it terminated itsan international outlaw when it terminated itsacceptance of the compulsory jurisdiction of theacceptance of the compulsory jurisdiction of theInternational Court of Justice.International Court of Justice.

In April of 1990, the US violated our extraditionIn April of 1990, the US violated our extradition

treaty with Mexico when we kidnapped Dr.treaty with Mexico when we kidnapped Dr.Humberto AlvarezHumberto Alvarez--Hachain.Hachain.

In the 1998 case ofIn the 1998 case ofParaguay v. UnitedStates,Paraguay v. UnitedStates,thetheU.S. ignored an order of the International Court ofU.S. ignored an order of the International Court ofJustice requiring that it take all measures at itsJustice requiring that it take all measures at its

disposal to ensure that Angel Francisco Breard isdisposal to ensure that Angel Francisco Breard isnot executed.not executed.

ANDAND we declare ourselves an outlaw when wewe declare ourselves an outlaw when weassert that we will go it alone if the UN fails toassert that we will go it alone if the UN fails toauthorize force.authorize force.


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Active Opposition to the Emergence of EffectiveActive Opposition to the Emergence of Effective

International Legal OrderInternational Legal Order

The U.S. has refused to ratify the treatyThe U.S. has refused to ratify the treatycreating the International Criminal Court,creating the International Criminal Court,ANDAND

The US has threatened to suspend military aidThe US has threatened to suspend military aidto countries who wont agree not to extraditeto countries who wont agree not to extraditeUS citizens to this courtUS citizens to this court

The US threatened to veto reauthorization ofThe US threatened to veto reauthorization ofUN peace keeping missions if US personnelUN peace keeping missions if US personnelwere not granted prosecutorial immunitywere not granted prosecutorial immunity


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Active Opposition to the Emergence of EffectiveActive Opposition to the Emergence of Effective

International Legal OrderInternational Legal Order

We have also refused to ratify:We have also refused to ratify:

Vienna Convention on the Law of TreatiesVienna Convention on the Law of Treaties

Law of the Sea TreatyLaw of the Sea Treaty

The American Convention on Human RightsThe American Convention on Human Rights

And we refused to substantivelyAnd we refused to substantivelyparticipate in the Johannesburgparticipate in the Johannesburg

Conference on Sustainable DevelopmentConference on Sustainable Development


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The principle the Bush administrationThe principle the Bush administrationappears to be advancing is:appears to be advancing is:

American ExceptionalismAmerican Exceptionalism

The idea is that international norms, rules,The idea is that international norms, rules,principles, and laws should apply toprinciples, and laws should apply toeveryone except Americans.everyone except Americans.

What else would you expect an outlaw toWhat else would you expect an outlaw toadvocate?advocate?


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Other Elements of theOther Elements of the

American Imperialist ParadigmAmerican Imperialist Paradigm

InequalityInequalityour interests trump theour interests trump theneeds, desires or rights of othersneeds, desires or rights of others

PositivismPositivismStrong sovereignty (for us)Strong sovereignty (for us)and there are no rules that limit usand there are no rules that limit usexcept those that we have explicitlyexcept those that we have explicitlyacceptedaccepted

UnilateralismUnilateralismour WILL aloneour WILL alone

determines what we can or ought to dodetermines what we can or ought to do

Hegemony and EmpireHegemony and Empire


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Alternative to American ImperialismAlternative to American Imperialism

EQUAL MEMBERSHIP IN A COMMUNITYEQUAL MEMBERSHIP IN A COMMUNITY

UNDER THE RULE OF LAWUNDER THE RULE OF LAW

MultilateralismMultilateralism Rule of LawRule of Law

Human RightsHuman Rights

EqualityEquality Reason and UniversalizabilityReason and Universalizability


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The Community ParadigmThe Community Paradigm

constitutes a moral critique becauseconstitutes a moral critique because

It seriously acknowledges:It seriously acknowledges: The duties of community that are basedThe duties of community that are based

on fairness and the long term commonon fairness and the long term commongoodgood

The full equality of all membersThe full equality of all members Individual human rights as absolute limitsIndividual human rights as absolute limits

on poweron power Pluralism, diversity, and sustainabilityPluralism, diversity, and sustainability

Reason or UniversalizabilityReason or Universalizabilityconsistencyconsistencyin principle, andin principle, and The Rule of lawThe Rule of law


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In the Community, multilateralism will showIn the Community, multilateralism will show

up as . . .up as . . .

A genuine discourse among equals.A genuine discourse among equals. Bush will not be able to act as if publicBush will not be able to act as if public

debate is good only because it is cathartic fordebate is good only because it is cathartic forthose who have a problem with what wethose who have a problem with what wehave decided to do.have decided to do.

Or that negotiation has occurred when youOr that negotiation has occurred when youexpress your needs and concerns and thenexpress your needs and concerns and thenlisten and obey when I tell you what Ivelisten and obey when I tell you what Ivedecided to dodecided to do

1.1. No nation will have a veto and no one will haveNo nation will have a veto and no one will have

legitimate recourse to violence, except inlegitimate recourse to violence, except inlegitimate selflegitimate self--defensedefense2.2. There will be a deeper sense of democracy andThere will be a deeper sense of democracy and

citizen participation in the processcitizen participation in the process


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Multilateralism will show up as . . .Multilateralism will show up as . . .

Limited SovereigntyLimited Sovereignty Just as Ohio retained its sovereigntyJust as Ohio retained its sovereignty

when it joined the Union, so too thewhen it joined the Union, so too theU.S. will retain its sovereignty withinU.S. will retain its sovereignty withinthe community of nations.the community of nations.

This sovereignty will, however, beThis sovereignty will, however, belimited. The powers and jurisdictionlimited. The powers and jurisdiction

of the Community will be limited, butof the Community will be limited, buttheir will be a supremacy clause.their will be a supremacy clause.


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Fairness will show up as . . .Fairness will show up as . . .

EqualityEquality each member of theeach member of thecommunity will have the samecommunity will have the samepowers, privileges, and immunities.powers, privileges, and immunities.

Global CitizenshipGlobal CitizenshipWe cannot beWe cannot befree riders in the global community.free riders in the global community.If we benefit from the cooperation ofIf we benefit from the cooperation ofothers, we must fulfill our duties ofothers, we must fulfill our duties of

membership.membership.


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Duties of CommunityDuties of Community

It is sometimes suggested that corporationsIt is sometimes suggested that corporationsONLY have duties to the investors.ONLY have duties to the investors.

This is countered by those who suggest thatThis is countered by those who suggest thatthere are positive duties of membership inthere are positive duties of membership in

a communitya communityThe international community paradigm isThe international community paradigm is

committed to the view that nations arecommitted to the view that nations arenot just a collection of individuals eachnot just a collection of individuals each

pursuing their own separate interests.pursuing their own separate interests.Rather they are equal members in aRather they are equal members in acollective endeavor.collective endeavor.


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The Rule of Law will show up asThe Rule of Law will show up as

An equal limitation on both bad actors ANDAn equal limitation on both bad actors ANDthose who stand for justice.those who stand for justice.Neither the outlaws nor the sheriffs will beNeither the outlaws nor the sheriffs will be

able to exercise dictatorial powers.able to exercise dictatorial powers.

Whatever may be appropriate action towardWhatever may be appropriate action towardSaddam Hussein . . .Saddam Hussein . . .

George W. Bush cannot act as a vigilante.George W. Bush cannot act as a vigilante.Nor can he be permitted to lead a lynchNor can he be permitted to lead a lynch

mob. He can ONLY do what he is legallymob. He can ONLY do what he is legallyauthorized to do by Congress AND theauthorized to do by Congress AND theUnited Nations Security Council.United Nations Security Council.


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The Rule of Law is about SubordinatingThe Rule of Law is about Subordinating

Power to ReasonPower to Reason

This view was poignantly expressed by Justice Jackson in hisThis view was poignantly expressed by Justice Jackson in hisopening remarks at the Nuremberg Tribunal, when he said:opening remarks at the Nuremberg Tribunal, when he said:

That four great nations, flushed with victory andThat four great nations, flushed with victory and

stung with injury, stay the hand of vengeancestung with injury, stay the hand of vengeance

and voluntarily submit their captive enemies toand voluntarily submit their captive enemies to

the judgment of the law is one of the mostthe judgment of the law is one of the most

significant tributes that Power has ever paid tosignificant tributes that Power has ever paid toReason.Reason.


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Rule of LawRule of Law No one is above the lawNo one is above the law

Everyone is equal under lawEveryone is equal under law

No one can take an action which threatsNo one can take an action which threatsto undermine the legal systemto undermine the legal system

Consistency in PrincipleConsistency in PrincipleThe principleThe principlethat justifies your action must be part ofthat justifies your action must be part ofa coherent theory which, together witha coherent theory which, together withother principles, can justify the majorityother principles, can justify the majorityof your past actions any of yourof your past actions any of your

expected future actions.expected future actions. PrecedentPrecedent Similarly situated others canSimilarly situated others can

use your principles to justify theiruse your principles to justify theiractions.actions.


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Precedent captures the moralPrecedent captures the moral

requirement of universalizabilityrequirement of universalizability

1.1. If you are unwilling to permit othersIf you are unwilling to permit othersto act in accordance with the rule,to act in accordance with the rule,principle, or policy that you areprinciple, or policy that you areoffering as a justification for youroffering as a justification for youraction, andaction, and

2.2. They are similarly situated.They are similarly situated.

3.3. Then, you are behaving immorally.Then, you are behaving immorally.


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Precedent under the Rule of LawPrecedent under the Rule of Law

If we want the Somalis to treat our soldiersIf we want the Somalis to treat our soldiersas prisoners of war in the Blackhawkas prisoners of war in the BlackhawkDown episode, then WE must respect theDown episode, then WE must respect thetreaties that establish those rights.treaties that establish those rights.

If we want China to resist regime change inIf we want China to resist regime change inTaiwan or if we want due process for ourTaiwan or if we want due process for oursoldiers who crash their crippled airplanesoldiers who crash their crippled airplaneat their airbase, WE must limit our aimsat their airbase, WE must limit our aims

and grant such rights in a like manner.and grant such rights in a like manner.If we want Russia not to invade Georgia,If we want Russia not to invade Georgia,

then we must not invade others willythen we must not invade others willy--nilly.nilly.


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Equality will show up as aEquality will show up as a

diminution of nationalismdiminution of nationalism

Nationalism is a narcissism of minorNationalism is a narcissism of minordifferencesdifferences Michael IgnatieffMichael Ignatieff

Nationalism is a fiction that requiresNationalism is a fiction that requiresa willing suspension of disbeliefa willing suspension of disbelief


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Human RightsHuman Rights

We create our own reality. If enoughWe create our own reality. If enoughpeople speak within the narrative ofpeople speak within the narrative ofhuman rights, then they become ahuman rights, then they become areality that must be acknowledged.reality that must be acknowledged.


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From within the community paradigm:From within the community paradigm:

Our criticism of shariaOur criticism of sharia--based stoningbased stoningof adulterers and female circumcisionof adulterers and female circumcisionwould be acknowledged just as wewould be acknowledged just as weacknowledge the call for us toacknowledge the call for us toabandon the death penalty.abandon the death penalty.

Saddam Hussein might be able to goSaddam Hussein might be able to goto the World Court and obtain ato the World Court and obtain a

restraining order against the threatrestraining order against the threatof U.S. military actionof U.S. military action


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PluralismPluralism

I am not suggesting that we haveI am not suggesting that we havepluralism concerning human rights. Thosepluralism concerning human rights. Thoseare basic and not negotiable.are basic and not negotiable.

But the overall package of our values thatBut the overall package of our values thatwe are pushing on the world is simplywe are pushing on the world is simplyUNSUSTAINABLE.UNSUSTAINABLE.

It is vital that we encourage a wideIt is vital that we encourage a wide

diversity of social systems anddiversity of social systems andexperiments in ways of living, because ourexperiments in ways of living, because ourway is, ecologically, utter folly.way is, ecologically, utter folly.


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ConclusionsConclusionsThe Community Paradigm isThe Community Paradigm is morallymorally

superiorsuperior to the Empire alternative.to the Empire alternative. It acknowledges others as equalsIt acknowledges others as equals

It subordinates power to reasonIt subordinates power to reason

It is faithful to the deepest American valuesIt is faithful to the deepest American values

It acknowledges natural and human rights andIt acknowledges natural and human rights andthe duties of community membershipthe duties of community membership

It would treat acts of terrorism as crimes, notIt would treat acts of terrorism as crimes, notacts of war which are used as a pretext foracts of war which are used as a pretext fordomestic violations of constitutional rightsdomestic violations of constitutional rights


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ConclusionsConclusions

The Community Paradigm hasThe Community Paradigm has superiorsuperiorpolicy implicationspolicy implications. Thus, from. Thus, fromwithin that paradigm, the U.S. willwithin that paradigm, the U.S. willsign and ratify:sign and ratify:

1.1. Vienna Convention on the Law ofVienna Convention on the Law ofTreatiesTreaties

2.2. The International Criminal CourtThe International Criminal CourtTreatyTreaty

3.3. The American Convention on HumanThe American Convention on HumanRightsRights

4.4. The Treaty to Ban LandminesThe Treaty to Ban Landmines

5.5. The Law of the Sea TreatyThe Law of the Sea Treaty


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ConclusionsConclusionsFrom within the Community Paradigm, weFrom within the Community Paradigm, we

will:will:1.1. Permanently submit ourselves to thePermanently submit ourselves to the

jurisdiction of the World Court.jurisdiction of the World Court.

2.2. Promote and strengthen international lawPromote and strengthen international law

and its institutions.and its institutions.3.3. Neither threaten nor act outside the authorityNeither threaten nor act outside the authoritygranted to us by the United Nations Securitygranted to us by the United Nations SecurityCouncil.Council.

4.4. Participate in and fully cooperate with effortsParticipate in and fully cooperate with efforts

to deal with global problems such as war,to deal with global problems such as war,environmental degradation, poverty, hunger,environmental degradation, poverty, hunger,refugee relief, human rights violations,refugee relief, human rights violations,biodiversity, and cultural diversity.biodiversity, and cultural diversity.


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Important points to preserveImportant points to preserve1.1. The US retains the natural right ofThe US retains the natural right of

proportional genuine selfproportional genuine self--defense.defense.Neither the UN Charter nor theNeither the UN Charter nor theConstitution should be interpreted so asConstitution should be interpreted so asto make them a suicide pact.to make them a suicide pact.

2.2. We must preserve individual libertyWe must preserve individual libertywithin community. Maoism or Borgwithin community. Maoism or Borg--likelikecollectivism is not acceptable.collectivism is not acceptable.

3.3. We are morally permitted to show aWe are morally permitted to show alimited bias in favor of our family,limited bias in favor of our family,friends, and fellow citizens.friends, and fellow citizens.

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Moral Critique