Exactly which of the following statements from yesterday’s proposed resolution of the American Society of International Law (ASIL) is political?
1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum)
2. Conduct of armed conflict and occupation is governed by the Geneva [Conventions] of August 12, 1949 and other international law (jus in bello)
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts or their subordinates.
7. All states should maintain security and liberty is a manner consistent with their international law obligations.
(Leave aside the possibly Freudian slip by the scribe, who wrote “Contentions” for “Conventions” in paragraph two.)
This is actually pretty tame stuff. Statements 1-6 are pretty standard boilerplate recitations of well-known principles of international law. (For example, I think you would be hard-put to find a teacher of international law in any civilized country who would give a student credit for writing the opposite on a final exam.) Number seven just says that countries should follow the law.
So what is “political”? And if this is “political,” what’s non-political? Cowed silence in the face of barbarity?
The letter of the law and only the letter of the law should be obeyed. You are 100% right on this one. The law is not a living and breathing thing. Differing interpretations (political) of the as-written law should be discouraged and ridiculed by wise men like law professors, Al Franken and Alec Baldwin.
My question is “where in the as-written Constitution is a right created for a woman in her first trimester to destroy a fetus and by extension it is illegal for the state to criminalize or otherwise prevent destruction of the fetus. Discuss.”
Here’s another:
“Where in the as-written Constitution must the state pay for the elementary school education of the children of ILLEGAL immigrants? Discuss.”
Here’s another:
“Where in the as-written Constitution must the federal government give money to private universities, even where those private universities refuse to allow military recruiters on campus as a condition of receiving the money. Discuss.”
Conservatives are with you on this one…take the ball and run with it!
Mr. Limbaugh has advised his listeners:”anytime an organization has the word ‘peace’ in it, throw it out”. I’m sure the same applies to any organisation with the words ‘international law’ in it. In a little while, it’ll be any organisation with the word ‘law’ in it.
Mr Bricklayer,
Where exactly in the US constitution is it written that I should hire an overpaid American? As a businessman I would like to serve my customers by selling them my product or services at the lowest price. I want to hire a cheap immigrant.
Where exactly is the your right listed in the US constitution that you deserve a certain wage or standard of living?
Where exactly in the US constittion is it written that homosexuality is a crime? Isn’t the state laws that makes it so an expression of political will?
What are laws, other than an expression of political will? Even taking the ten commandments as a basis, aren’t the current scope of those as claimed by the Religious right – the sixth commandment to porn, the fifth commandment to the plan B pill ? Where exactly in the 10 commandments are those?
P.S that’s the Catholic numbering.
billy-
Laws are not open to interpretation; you must read and apply laws exactly as they are written. The only exception to this rule is that liberal law professors may announce an interpretation of a law, and upon doing so said interpretation is considered the absolute law of the land.
Unfortunately I’m not allowed to answer your questions. However, given that this site has been used to spread union propaganda, I suspect your desire to hire a “cheap” immigrant would be frowned upon. Unless, of course, you fly a Cuban flag at your home.
I further suspect that your answers lie somewhere in the two full sessions the professor intends to devote to Femenist legal theory in his upcoming Jurisprudence class.
Attending those sessions are critical steps in your re-education.
Good Luck,
BL
Although I share with you, Prof. Froomkin, the underlying principles, I also have to disagree with you (something uncommon) when it comes to the specific, formal point that you raise. That institutions like ASIL adopt resolutions is, in itself, a political act (political meaning policy-driven, not necessarily partisan). That institutions like ASIL adopt a resolution within a certain context and at a particular time is, in itself, a political act (idem). By choosing certain legal principles and reaffirming just those principles, via a resolution, within a certain context and at a particular time, is, in itself, a political act (idem).
Repeat: I personally coincide with the principles that underlie ASILs resolution, just as I presume that you do. I even agree with the convenience of institutions like ASIL adopting resolutions, when the context and times require it. But — and this is, in my opinion, nothing bad, if the circumstances demand it — such resolutions do, as a matter of fact, constitute a political/policy act.
Bricklayer, as usual, doesnt see beyond his partisan blinds, but thats a completely different problem that, if lucky, some day he(she) will be able to solve.
Joaquim-
You basically stated my point. Nobody disagrees with anything in the resolution on its face. As you say, its timing could be interpreted as a political statement. But going a step further, each and every point on the resolution is open to differing interpretation.
In fact Froomkin would no doubt give a student an A+ for arguing different points of view on what each and every word means. What is armed force? What is armed conflict (do covert operations fall under this)? What is torture? What is cruel? What is prolonged? In many cases there are no useful dictionary definitions for these words, and each is open to value judgment and political interpretation.
My point, which I think billy understood, was that no law or statement of policy is apolitical–to be implemented each must be interpreted. I find it laughable (literally), when liberals resort to textualism as Froomkin does because their modus operandi is the living document, read-between-the-lines approach. Froomkin knows damn well that not everyone agrees on the definitions of torture, armed conflict, etc.. Many make a compelling case that terrorism is not the type of armed conflict contemplated by most treaties dealing with warfare.
One may just as well pass a resolution “thou shalt not kill” and then ask what’s so complicated about that? ignoring self-defense, manslaughter, insanity, etc. Nobody likes killing. But reasonable minds can disagree on the meaning of a stated mandate.
The problem is some minds aren’t reasonable.
And how is bricklayer different from the liberal interpreter of text? That’s billy’s question if I understand it correctly.
And its equally laughable that conservatives have this fet1sh about the text. It’s they who are most infatuated with the text, who claim that the text can be applied without interpretation, that they are following a strict reading. Talk about calling the kettle black. To paraphrase billy, how do you get from murder to the morning after pill? Is that liberals interpreting the text?
Text is always subject to interpretation, and conservatives just dont like the liberal interpretation. All this bull about strict constructionism is just that – bull. Its just cover for a conservative interpretation.
And so with judical activism – the amount of legislative laws strcuk down by conservative judges is far more than those of liberal judges.
baxter-
Excellent, you get it! Now reread Froomkin’s original post.
To answer your question, I believe it’s clear that this is a political act (in the sense of “of or relating to views about social relationships involving authority or power”, not in the sense of “partisan”). But I don’t think that makes it inappropriate. Which leads to the answer to Professor Alford’s question (“Why now?”). Although every principle stated has indeed been violated by many times by various states at various times in the past, it’s only now that widespread, systematic violation of these principles has been committed by a state which is generally committed to the rule of law and upon which such a resolution might actually exert some pressure. Issuing paragraph 4, for example, in response to the Soviet Gulag would have been a waste of time as the Soviet government couldn’t have cared less and the Soviet people had virtually no ability to influence their government’s actions. That isn’t true of the United States.
Reaffirming these rules in a time of obfuscation and confusion seemed like a good idea to me. ASIL has acted and the consensus on these points from those coming from 30-40 countries at the largest annual business meeting in the history of the organization should help to marginalize exotic visions of international law – in particular the hallucination that US foreign relations law is international law.
Best,
Ben
“the letter of the law should be obeyed”
Sure. And, religiously based laws that severely inhibit equal protection and basic freedom by taking away from women control of her person and fertility in slave like ways violates various texts. btw A fetus is not the entity that exists at one week. Other “text” would be equal protection (and those under jurisdiction/control of states) to treat stigmatized but innocent groups equitably (children). As to the last one, the 1A was being interpreted. Association rights are not directly listed, but I think that’s not a big leap. I didn’t agree with the law professors here though, but only on analysis.
Not that the text of the Constitution spells out how to interpret it. I guess we do have to go beyond bare text a bit, huh?
Anyway, with the SC due to decide at least two int’l law issues (Hamdan and right of aliens to have their consulate informed when they are arrested), this is especially a good time to set forth the resolution.
Note that the text of the Constitution does spell out a crucial interpretive point:
Ninth Amendment – Unenumerated Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Strangely, those who cry loudest about the text of the Constitution are often in fact acting in direct contradiction to the text, by using enumeration to deny and disparage other rights (The stock line of “Where is there a right to …”).
True enough.