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Pavers of Roads with Good Intentions: R2P Debate Rising Part II.

Tuesday, February 18th, 2014

As I mentioned previously, I needed to make a more substantive reply to Victor Allen’s claims for R2P.  I am very tardy in doing so, for which I apologize to Mr. Allen but better late than not at all. While addressing some of Victor’s specific points, I want to be very clear that in my view:

1. R2P’s status in international law, despite grandiose claims by advocates, is weakly grounded, highly controversial and conflicts with accepted norms of state sovereignty

2.  The concept of R2P is a covert revival of the pre-WWI sovereign right to  wage aggressive war, albeit (usually) under some kind of collective imprimatur

3,  If regarded as a serious legal moral principle entailing an obligation to act, R2P is inherently anti-strategic, injurious to national interest and anti-democratic in nature

I will tackle point #1 today and points # 2 and #3 in successive posts.

In Victor’s original piece he argued that R2P is part and parcel of a (theoretical) “new sovereignty”:

That R2P does not violate sovereignty stems from the evolution of sovereignty from its Westphalian form in the mid 17th century to the “sovereignty as responsibility” concept advanced by Deng, et al. Modern sovereignty can no longer be held to give states carte blanche in their internal affairs regardless of the level of suffering going on within their borders. This does not diminish state agency for internal affairs, but rather holds them responsible and accountable for their action and inaction regarding the welfare of their populations. 

“Sovereignty as responsibility”  is a theory put forth by a Sudanese diplomat and minor UN bureaucrat and an American academic that proclaimed:

The authors assert that sovereignty can no longer be seen as a protection against interference, but as a charge of responsibility where the state is accountable to both domestic and external constituencies.

The “…and external constituencies” clause is an Orwellian negation of the traditional meaning of sovereignty where the state has sole de jure authority over such matters as their internal affairs, including the political character of their regime,  with very narrow exceptions mandated by treaty or customary international law ( ex. diplomatic immunity of heads of state).  The latter, is based on consent and derives from the history of the diplomatic norms adhered to, interpreted and practiced by sovereigns and such rulings of IGO to whose authority sovereigns have voluntarily submitted themselves through a binding covenant ( ex. World Court via the UN charter).

Of course, being sovereign, states differ on how such rulings are to be interpreted or even whether they will accept jurisdiction of bodies  like the World Court, the ICC or special international  tribunals of justice in specific cases. Furthermore, in signing covenants, states often, quite legally, make reservations or exceptions to specific treaty clauses as part of their agreement to adhere to the rest of the treaty and consider it legally binding.  The United States in fact, does this regularly as do most other states having major interests at stake in negotiating an international agreement. Unless you have a granular knowledge of what country “x” formally agreed to accept as a signatory, or are willing to do your homework in this regard, you do not actually know what the law really is in many diplomatic disputes – especially when the conflict is complex and multilateral.  Broad and bombastic assertions by activists in the media that novel restrictions or obligations on states that they support are “international law” or that some act they condemn is “illegal” are almost invariably factually incorrect, at least to some degree ( barring obvious and clear violations of jus cogens, such as mass atrocities).

Beyond international law based on formal covenants, custom and legal precedents generally accepted by sovereigns, other sources of authority in international law would include resolutions of the UN Security Council, the UN General Assembly, regional bodies like the OAS or EU, some institutions like the ICRC and even the opinions of scholars learned in international law. Unlike positive law within a state, international law in its various manifestations lacks a legitimate, overarching, coercive authority that could function as a global sovereign and impartial enforcer of consistently interpreted law and justice. Sovereign states are thus not subject to international law in the same relationship that their citizens are subject to sovereign authority; sovereign states are, at least legally, a community of equals able to draw upon and interpret overlapping and at times competing sources of legal authority in making claims – including precedents they intentionally created themselves!  This makes a quick redress of violations of international law difficult when the UN Security Council is empowered to make use of military force only in cases of ” international peace and security” (i.e. aggression) and the UN Charter also assures sovereigns of their “right to self defense”.

“New Sovereignty”, in the title of Victor’s first piece, is a concept propagated by the late Harvard theorist and State Department official Abram Chayes and his wife, scholar Antonia Handler Chayes, that repudiates much of traditional sovereignty in order to aggressively re-define it as “ the capacity to participate in international institutions of all types“.  In other words, sovereignty in their view would mean a state’s membership in good standing in  a mutually interdependent ” international community” and not control over national territory free from external interference by other sovereigns. Under “New Sovereignty”, such external interference is assumed as “normal” and is a point of constant, cooperative, negotiation toward consensus on emerging and evolving legal norms. As such, if accepted, “New Sovereignty” would be a massive transfer of political power and legal authority from legitimate national governments to a transnational and international class of legal technocrats and bureaucrats, who would assume by default a managerial role over the substance of international affairs. In many ways this erosion of traditional state sovereignty would be analogous to the transfer of real power from the hands of crowned sovereigns in the early modern period to their embryonic state bureaucracies that in time rendered most monarchs mere ceremonial figureheads.

In my view, while  Chayes had many laudable goals in mind,  “New Sovereignty” would be unworkable in practice and inherently is extremely reactionary in its anti-democratic repudiation of popular sovereignty as the basis for a state’s legitimacy. Citizens of states are effectively reduced to the position of wards under the protection of the international community as national leaders become responsive primarily to “external constituencies” in control of the eternal process of negotiation of international norms. While the problem is somewhat moot for repressive regimes whose citizens enjoy few freedoms anyway, in liberal states the “democratic deficit” produced by such a scheme runs contrary to the very foundations of their political legitimacy and independence.

In this context, we have the claim put forth for the legal basis of R2P by Victor:

 ….Indeed, the UN Security Council, having enshrined R2P in UNSCR 1674, did not subsequently authorize action under the R2P banner in the aftermath of Cyclone Nargis in Burma, with the Special Adviser to the Secretary-General stating in his report that

[i]t would be a misapplication of responsibility to protect principles to apply them at this point to the unfolding tragedy in Myanmar…the Outcome Document of the 2005 [World] Summit limited their application to four crimes and violations: genocide, crimes against humanity, war crimes and ethnic cleansing.

and in his second post:

Here Safranski and I agree on the proper role of theorists, but it wasn’t theorists that adopted R2P as a norm; it was the UN Security Council, as set forth in UNSCR 1674 in 2005, which was later utilized in the Libya intervention authorization (UNSCR 1973). Currently there are no higher authorities on interventions, peacemaking, and peacekeeping than the Security Council, which is surely not composed of academic theorists, but rather high-level diplomats that make moves, and yes, establish law, only on the explicit authorization of their countries. That the Security Council adopted the principles of R2P speaks more to the usefulness and applicability of the concepts than to any academic theorizing thereof.

First, while we should acknowledge that the UNSC resolutions that R2P advocates crow about are not nothing, their importance should not be exaggerated either. They are a precedent, but a very limited one that does not abrogate everything that has come before.

Since the inception of the UN the Security Council has passed over 2200 resolutions, which would put those devoted to R2P at a whopping .0009 %.  Moreover, of the UNSC resolutions passed, many merely take note of an event, express concern or urge restraint; other, more forcefully worded resolutions, dealing with conflict were dead letters from the moment of adoption, being ignored by warring parties exercising their sovereign rights of self-defense. The number of UNSC resolutions that led to effective action of any kind, much less decisive humanitarian military intervention envisioned by more muscular interpretations of R2P, have been few with a mixed track record of success.  Resolutions 1674 and 1973 by the Security Council exist within the much larger context of international law precedents going back centuries, most of which directly contradict the operative assumptions of “New Sovereignty”.

Furthermore, much of the text of Resolution 1674 itself is devoted to caveats reiterating traditional sovereign prerogatives and that protection for civilians occur under established conventions for the law of armed conflict before gingerly endorsing R2P provisions from the 2005 World Summit Outcome Document  of the World Health Organization. The legality of these qualifications and reservations are taken seriously by the member states of the Security Council because without them, 1674 would have never passed, nor 1973 after it ( likely to be the last of its kind for a long while in light of Russian and Chinese vetoes on Syria resolutions, which after Libya are certain to continue).  At best, in international law R2P has managed to secure only a toehold and its definition and application lack agreement (and even acceptance) among the world’s great powers.

R2P is not a secure legal scaffold on which to construct a foreign policy or decide on matters of peace and war.

Adding to the Bookpile

Sunday, February 9th, 2014

[by Mark Safranski, a.k.a. “zen“]
  

Cultures of War: Pearl Harbor / Hiroshima / 9-11 / Iraq by John Dower 

Berlin Diary: The Journal of a Foreign Correspondent, 1934-1941 by William Shirer

Moral Combat: Good and Evil in World War II by Michael Burleigh 

Picked up a few more books for the antilibrary.

Dower is best known for his prizewinning Embracing Defeat: Japan in the Wake of World War II, which unfortunately, I have never read.  Berlin Diaries I have previously skimmed through for research purposes but I did not own a copy. Shirer’s The Rise and Fall of the Third Reich: A History of Nazi Germany was an immensely bestselling book which nearly everyone interested in WWII reads at some point in time. I would put in a good word for Shirer’s lesser known The Collapse of the Third Republic: An Inquiry into the Fall of France in 1940 . It was a very readable introduction to the deep political schisms of France during the interwar and Vichy years which ( as I am not focused on French history) later made reading Ian Ousby’s Occupation: The Ordeal of France 1940-1944 more profitable.

I am a fan of the vigorous prose of British historian Michael Burleigh, having previously reviewed  Blood and Rage: A Cultural History of Terrorism here and can give a strong recommendation for his The Third Reich: A New History.  Burleigh here is tackling moral choices in war and also conflict at what Colonel John Boyd termed “the moral level of war” in a scenario containing the greatest moral extremes in human history, the Second World War.

The more I try to read, the further behind I fall!

Making Historical Analogies about 1914

Friday, January 10th, 2014

[by Mark Safranski, a.k.a. “zen“]

The Independent has a short, quasi-sensationalist, article featuring historian Margaret MacMillan discussing what is likely to become the first pop academic cottage industry of 2014….making historical analogies about 1914 and World War I! MacMillan is a senior scholar of international relations and administrator at Oxford ( where she is Warden of St Antony’s College)  with a wide range of research interests, including the First World War on which she has published two books.  I am just going to excerpt and comment on the historical analogies MacMillan made – or at least the ones filtered by the reporter and editor – she’s more eloquent in her own writing where each of these points are treated at greater length:

Is it 1914 all over again? We are in danger of repeating the mistakes that started WWI, says a leading historian 

Professor Margaret MacMillan, of the University of Cambridge, argues that the Middle East could be viewed as the modern-day equivalent of this turbulent region. A nuclear arms race that would be likely to start if Iran developed a bomb “would make for a very dangerous world indeed, which could lead to a recreation of the kind of tinderbox that exploded in the Balkans 100 years ago – only this time with mushroom clouds,”

…..While history does not repeat itself precisely, the Middle East today bears a worrying resemblance to the Balkans then,” she says. “A similar mix of toxic nationalisms threatens to draw in outside powers as the US, Turkey, Russia, and Iran look to protect their interests and clients. 

Several comments here. There is a similarity in that like the unstable Balkan states of the early 20th century, many of the Mideastern countries are young, autocratic, states with ancient cultures that are relatively weak  and measure their full independence from imperial rule only in decades.  The Mideast is also like the Balkans, divided internally along ethnic, tribal, religious, sectarian and linguistic lines.

The differences though, are substantial. The world may be more polycentric now than in 1954 or 1994 but the relative and absolute preponderance of American power versus all possible rivals, even while war-weary and economically dolorous, is not comparable to Great Britain’s position in 1914.  The outside great powers MacMillan points to are far from co-equal and there is no alliance system today that would guarantee escalation of a local conflict to a general war. Unlike Russia facing Austria-Hungary over Serbia there is no chance that Iran or Russia would court a full-scale war with the United States over Syria.

On the negative side of the ledger, the real problem  is not possible imperial conquest but the danger of regional collapse. “Toxic nationalism” is less the problem than the fact that the scale of a Mideastern Sunni-Shia sectarian conflict is so enormous, as are the implications . Nothing in the Balkans after the turn of the century compares to Syria, then Iraq and then other states sliding into a Muslim version of the Thirty Year’s War. An arc of failed states from Beirut to Islamabad is likelier than, say, a new Persian empire run by Tehran’s mullahs.

Modern-day Islamist terrorists mirror the revolutionary communists and anarchists who carried out a string of assassinations in the name of a philosophy that sanctioned murder to achieve their vision of a better world

Agree here. The analogy between 21st revolutionary Islamists and the 19th century revolutionary anarchists is sound.

And in 1914, Germany was a rising force that sought to challenge the pre-eminent power of the time, the UK. Today, the growing power of China is perceived as a threat by some in the US.

Transitions from one world power to another are always seen as dangerous times. In the late 1920s, the US drew up plans for a war with the British Empire that would have seen the invasion of Canada, partly because it was assumed conflict would break out as America took over as the world’s main superpower.

Imperial Germany’s growing power was less troublesome to Edwardian British statesmen than the strategic error of the Kaiser and von Tirpitz to pursue a naval arms race with Great Britain that did not give Germany’even the ability to break a naval blockade but needlessly antagonized the British with an existential threat that pushed London into the French camp.

As to military plans for invading Canada (or anywhere else), the job of military planning staffs are to create war plans to cover hypothetical contingencies so that if a crisis breaks out, there is at least a feasible starting point on the drawing board from which to begin organizing a campaign. This is what staff officers do be they American, French, Russian, German, Chinese and even British. This is not to be taken as serious evidence that the Coolidge or Hoover administrations were hatching schemes to occupy Quebec.

More importantly, nuclear weapons create an impediment to Sino-American rivalry ending in an “August 1914″ moment ( though not, arguably, an accidental or peripheral clash at sea or a nasty proxy conflict). Even bullying Japan ultimately carries a risk that at a certain point, the Japanese will get fed-up with Beijing, decide they need parity with China, and become a nuclear weapons state.

Professor MacMillan, whose book The War That Ended Peace was published last year, said right-wing and nationalist sentiments were rising across the world and had also been a factor before the First World War

In China and Japan, patriotic passions have been inflamed by the dispute over a string of islands in the East China Sea, known as the Senkakus in Japan and Diaoyus in China. “Increased Chinese military spending and the build-up of its naval capacity suggest to many American strategists that China intends to challenge the US as a Pacific power, and we are now seeing an arms race between the two countries in that region,” she writes in her essay. “The Wall Street Journal has authoritative reports that the Pentagon is preparing war plans against China – just in case.” 

“It is tempting – and sobering –to compare today’s relationship between China and the US with that between Germany and England a century ago,” Professor MacMillan writes. She points to the growing disquiet in the US over Chinese investment in America while “the Chinese complain that the US treats them as a second-rate power”.

The “dispute” of the Senkakus has been intentionally and wholly created by Beijing in much the same way Chinese leaders had PLA troops provocatively infringe on Indian territory, claim the South China Sea as sovereign territory and bully ships of all nearby nations other than Russia in international or foreign national waters. This is, as Edward Luttwak recently pointed out, not an especially smart execution of strategy. China’s recent burst of nationalistic bluffing, intimidation and paranoia about encirclement are working along the path of self-fulfilling prophecy.

Another similarity highlighted by the historian is the belief that a full-scale war between the major powers is unthinkable after such a prolonged period of peace. “Now, as then, the march of globalisation has lulled us into a false sense of safety,” she says. “The 100th anniversary of 1914 should make us reflect anew on our vulnerability to human error, sudden catastrophes, and sheer accident.

Agree that globalization is no guarantee against human folly, ambition or the caprice of chance.

What are your thoughts?

Review: Mussolini’s Italy: Life under the Fascist Dictatorship 1915-1945 by R.J.B. Bosworth

Wednesday, December 11th, 2013

[by Mark Safranski, a.k.a “zen“]

Mussolini’s Italy: Life Under the Fascist Dictatorship, 1915-1945 by R.J.B. Bosworth 

This book was Fascist Italy not of the newsreels of frenzied Roman crowds cheering bombastic speeches by Mussolini but how fascism’s imperial grandiosity were an ill-fitting facade for an Italy that underneath remained substantially an impoverished, traditionalist, parochial society of peasant squabbles and regional jealousies. Bosworth, one of the world’s top experts on the period takes a granular look at Italy under Fascism and the reader comes away amazed at how Mussolini fooled the great powers into taking his regime seriously for as long as they did.

At 692 pages, including 88 pages of endnotes, Mussolini’s Italy lays out in exhaustive detail how ordinary Italians carried on as best they could under the dictatorship, with the traditional reliance on corruption and the influence of kin and “men of respect” to undermine and ameliorate “totalitarian” rule. Repeatedly the regime sanctions dissidents (usually politically naive -or simply drunken – tradesmen or villagers) to “confino”, internal exile to faraway unpleasant regions only to have the intervention of some Fascist bigwig result in a swift amnesty.The brutality of the regime’s informal sanctions – the beatings, castor oil, kidnappings and murders – carried out by roving Fascist squadrists or at the orders of a local Fascist Ras (boss) like Cremona’s thuggish Roberto Farinacci, were by contrast, real enough.

Outside of the violent hooliganism of blackshirt squadrism there at times seems little to have held Fascism together as a political movement without Mussolini’s tin cult of personality, there was seldom agreement among fascists about such fundamental political issues as the role of the state vs. the party, capitalism vs. autarky, the sanctity of private property, the need for unions, whether Fascism should be antisemitic or the role of the Catholic Church in Italian life? An incoherence that left Mussolini, who was never much of a stickler for consistency, as supreme arbiter. A role he kept secure by arbitrarily moving his preening, intriguing, womanizing and feuding cabal of uniformed henchmen and party apparatchiks from job to job all the way into his bitter gotterdammerung of the Salo Republic, where Mussolini was reduced to being the puppet gauleiter of Lombardy and eventually patheitic victim of popular revenge.

Bosworth does a scholarly take-down of the original Fascist regime, demonstrating the deep propensity for cultural continuity in any society in the long term, even in one under the heavy hand of self-proclaimed revolutionaries and Roman tyrants.

Dawn and Decadence, Innovation, & The Face of Battle — top 3

Friday, October 4th, 2013

[by J. Scott Shipman]

From Dawn to Decadence, 500 Years of Western Cultural Life, by Jacques Barzun

In a year where I’ve not been able to read as much as normal and with 89 days remaining in 2013, these three titles are the best so far. I’m not finished with Dawn, but it seems like the late Professor Barzun is an old friend (here is a video from 2010). Barzun’s opus was published when he was 93 and was almost ten years in the making. Dawn has been sitting on my shelves for four or five years and I’d started it two or three times only to get bogged down and lose interest. Well over half way finished and I’m pretty sure I’ll be rereading this title for years to come (co-blogger Lynn Rees reports he’s read it four times). Barzun’s scope covers the gamut: religion, literature, poetry, theater, painting, sculpture, philosophy, and the aristocracy/life at court. Since many of these topics are interconnected he uses an ingenious method to assist the reader in keeping up. He uses this: (<page number)(page number>) to direct the reader to something previously discussed or something he will cover later. In the text, he will recommend “the book to read is” “the book to browse is” in brackets. I’ve found this method distracting as I’ve read three books he referenced since I started… Barzun also provides generous lift quotes in the margins to give the reader a flavor for a particular writer or idea/example. If the book had a traditional bibliography, I dare say it would cover a couple hundred pages–at least. Dawn has been a pleasure I’ve been taking in small doses and am in no hurry to finish. This is the best book of the genre that I’ve read.

Men, Machines and Modern Times, by Elting Morison

Elting Morison’s Men, Machines is reviewed at Amazon by former House Speaker Newt Gingrich as “purely and simply one of the best books ever written on the process of innovation and the interaction of technology, culture, systems, and individual personalities.” I could not agree more. Morison’s book is a collection of essays dealing with change and man’s inherit but paradoxical reaction to it:

Yet, if human beings are attached to the known, to the realm of things as they are, they also, regrettably for their peace of mind, are incessantly attracted to the unknown and things as they might be. As Ecclesiastes glumly pointed out, men persist in disordering their settled ways and beliefs by seeing out many inventions…Change has always been a constant in human affairs…

From gunnery at sea to 19th Century railroads, Morison provides illustration after illustration of man, his institutions, and the almost universal resistance of both to change. Morison observes of inventors (real “disruptive thinkers’) [this was written in the early 1950’s]:

I once collected evidence on the lives of about thirty of these men who flourished in the nineteenth century. A surprising number turned out to be people with little formal education, who drank a good deal, who were careless with money, and who had trouble with wives or other women.

Morison devotes one essay to the characteristics and ills of a “bureau.” He describes the difficulty of getting anything accomplished within an average bureaucracy—largely because bureaucrats live for process and harmony. He says:

Taken together, a set of regulations provides a pattern of behavior for the energies bureaus are set up to regulate….Regulations are a way of keeping a system of energies working in harmony and balance…First it is easier to make a regulation than to abolish it.

Morison’s eighth and concluding essay provide Some Proposals for dealing with change and newness—in a word, solutions to many of the problems identified earlier. That said, only the most dedicated reader will complete the seventh (and longest) chapter, according the Morison, originally intended to be a book about the history of 19th Century American railroad innovation. Overall, I concur with Speaker Gingrich and highly recommend this title.

The Face of Battle, by John Keegan

A title needing no introduction at Zenpundit, I’ll only offer this title as one of the best books of the genre I’ve read. Keegan covers three battles across 500 years of history, Agincourt, Waterloo, and The Somme. In each, he brings alive the battlefield and provides the conditions faced by combatants—often up close and personal. Keegan’s scholarship, insight, and importantly, his humility in addressing a topic he admittedly had no first hand experience make this a must read for anyone in the profession of arms, and recommended for anyone seeking more insight into how we fight.

That’s a wrap, be back soon! 


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