International Law and the Double Standard

A common criticism of international law -- both existing law and potential law -- is that states have their own interests and will only comply with or form new law when it aligns with those interests. Recently, Eric Posner argued this on Foreign Policy. Putting aside his weak contention that President Obama has been as equally loathsome of international law as President G.W. Bush, Posner's main theme is that countries' interests don't align enough to make international law worthwhile.

The problem with this argument is that it is being applied selectively to international law -- it's a double standard. In domestic politics, every individual citizen has their own interests. That is a given. In representative democracies, like the United States or most any other democratic country, congresspeople or parliamentarians have very distinct interests (that may or may not represent their constituents). But scholars and commentators don't disparage democracies because various people or politicians have interests. To have interests is derived directly from having needs, and to have needs means you're alive.

So, the argument that "unaligned interests makes cooperation hopeless" is absurd. If this were true, then we ought to all give up on any form of society or government.

The primary difference between international and national law is enforcement, not interests. While in the US, for example, an individual can be arrested and convicted for murder, there are no world police (technically speaking). And mechanisms like the United Nations Security Council or the International Criminal Court are hampered by a lack of strong enforcement mechanisms. (The ICC has been struggling recently to stay above water in this respect.)

But the lack of international enforcement is a choice and, perhaps, rather natural. International law is, historically, still in its nascency. The first attempt at truly global law didn't begin until the attempts at forming the League of Nations in 1916, so in this sense, international law hasn't even hit the century mark.

Compare this to the European Union. The Treaty of Westphalia, signed in 1648, was the initial attempt at Europe's first security-based international system of law. It was a full 344 years before the European Union -- states linked by domestically enforceable law -- was formed through the Treaty of Maastricht. And even now, there is no single EU military or police force. Each state's police force within the EU must, under law, uphold EU regulations.

The world is composed of many more individuals and states, so it seems predictable that the development of an international legal system should take so long.

Ironically, Posner makes a key observation in the development of effective international law: "International law is only as strong as the states with an interest in upholding it." Precisely. America's domestic system of law is upheld, at base, because the individuals and entities in that system consent to it. Americans each have an interest in social order, lest chaos abound. Likewise, international law makes the world more efficient, predictable, and (in the long run) safer.

Given so many disparate interests, we're unlikely to see a world government in our lifetimes. But today's arguments over international law may seem laughable in 2200 -- like arguments in 1733 over a religious-refugee-founded, world-dominating union of fifty states spanning the North American continent seem today.

Peace in the Taiwan Strait?

Since President Ma took office in Taiwan last March, the relationship between China and Taiwan has improved rapidly. The two governments have concluded multiple agreements on trade, travel, and finance. And an impending Taiwan-China free trade agreement (FTA) -- called the Economic Cooperation Framework Agreement -- could link the two entities irreversibly.

In fact, relations have warmed sufficiently, it seems, to merit some sort of punditry tipping point. Some are beginning to talk about the consequences of a Taiwan-China peace agreement for East Asia and the US. But one piece in particular, written by Philip Saunders and Scott Kastner, is notable for its clear-minded analysis on what a peace deal across the Strait might look like and, further, what it might do to affect other political calculations in the region.

In short, a true peace agreement -- in the sense of unification -- is far off. The Taiwanese political climate is not prepared for such a step. But, as Saunders and Kastner point out, "an interim peace agreement -- trading a Taiwanese commitment not to move toward independence for a Chinese commitment not to use force -- seems increasingly possible."

This is a confidence-building measure (CBM) proposal, and I would suggest reading the full article for the details. My general take is that it is not only an opportune time for such an agreement, but it is also a necessary agreement. First, any deep step toward unification is going to require baby steps that prepare both the Chinese and the Taiwanese for the idea of being more integrated economically and politically. Second, and more importantly, Taiwan needs this FTA with China. If Taiwan holds off much longer on economic integration with East Asia, then it will lose a significant amount of jobs and investment in the next decade as these travel to countries in the East Asian bloc, like Thailand or Vietnam.

There is only one argument the authors make with which I disagree. They rightly mention that for unification to ever be a real prospect, the divergent identities of Taiwanese and Chinese people need to be addressed. In other words, people on both sides need to get comfortable enough with one another to be able to see themselves as "one" national people. Here's what the article says:

"A peace agreement might help address this issue through the exchange of 'identity goods,' measures that allow one side the chance to influence the other side's perception of national identity. Expanded media, educational, and people-to-people exchanges could give Beijing a chance to persuade people on Taiwan about the benefits of unification, and allow Taiwan a chance to press for greater openness and political changes in China that would make unification more attractive."

I think the final phrase here is unrealistic. Without a drastic change in the domestic political climate of China, there is little to no chance that the Communist Party (CCP) would allow Taiwan or Taiwanese people to press for more political openness in China. At this point, it won't even allow its own people to flirt with such propositions, so why would the authors think that the CCP would permit the Taiwanese -- the people of its "rogue province" -- to press for a more liberal political system?

Putting this criticism aside, I think Saunders and Kastner have it right on expanding educational and people-to-people exchanges. As is usually the case, the potential for great change lies in the perspective of new generations. As young Taiwanese and Chinese come to know and accept each other, the "otherness" of their parents' generation will no longer make sense to them. It is these young people that will one day shake hands and say, "peace".

More Public Funding for Test Tube Food

A few months back, I argued in the Foreign Policy website that public cash needs to be put behind in vitro meat. Recently, I read a piece in Seed magazine, in which the director of a nonprofit (called New Harvest) that supports in vitro meat was interviewed. In it, the director, Jason Matheny, explains the recent evolutions and details of the process of developing cultured meat as an alternative to livestock-derived meat.

The interview is interesting, but one thing Mateny said is particularly important: "The Oxford economic feasibility study I mentioned earlier suggests that, at an industrial scale, the cultured meat cost should be quite competitive with conventional meat, but we’re not there yet. It’s five to 10 years away, not two or three."

Later, he reiterates the "10 years off" line. This is significant because it means that investors won't take big risks on this technology right now since it probably won't be profitable for another decade. But in a year when the next climate deal is supposed to be struck at Copenhagen, this technology is too good to let it simmer below market signals. Given the amount of carbon that the livestock industry contributes to the climate, a massive revolution of in vitro meat could be a significant component of the new international climate pact. (As Mateny mentions, culture meat produces 80% less carbon than current livestock.) This is especially true because much of the future increases in carbon from livestock will come from countries who have yet to produce a lot of livestock carbon, like India or China. Through public investment, the structure should be put in place now for a large in vitro meat industry in developing countries -- it's easier to change the trajectory of an industry now than to try to change a large livestock industry in the future.

For countries like the US that already have a massive livestock industry, the political will be more difficult to find. Not only is the meat industry huge and influential, but there is so much concern over public investment right now (i.e. the economic stimulus and health care) that further climate measures might get overshadowed.

However, if China were to catapult ahead of the United States regarding in vitro meat technology and business, then it wouldn't be the first time in the past year that China had taken bolder steps than the US to do what needed to be done in terms of public investment. China already might be the future leader in electric cars, wind tech, solar tech, or just any "green tech", all of which are likely to be the cash cows of the next half-century.

Of course, that raises interesting questions about the trade-off between democracy and government efficacy. For another day...

The Limits of Gender

Caster Semenya, an 18-year old runner from South Africa, recently took gold in the 800m race of the world championships in Germany. But her performance and medal are being disputed by some due to a debate over her gender, and the whole issue brings to light the problems with applying dichotomous gender categories in some cases.

Cleared of drug use, other athletes, sport commentators, and teams have challenged Semenya's running in a women's competition. Though the testing has yet to be done, it is possible that the running star could have a genetic mutation -- for example, a Y chromosome like men have -- which allows her to perform better despite having female genitals. Semenya could also have greater levels of testosterone due to a hyper-active adrenal gland, which could allow her to run faster.

This event brings two questions to light. First, how should biological gender (sex) be defined for athletic competitions? Second, what should be done about the Semenya's particular case?

As for sex, a line must be drawn somewhere. Either female genitalia or reproductive organs seems like a reasonable criteria. However, it is not acceptable to rule out any person with high naturally-occurring levels of testosterone, in the same way that we should not disqualify Michael Phelps for having abnormally short legs and a long torso, or Shaquille O'Neal for towering 7'1" above the ground and carrying large amounts of muscle mass. Indeed, most record-breakers or top-level athletes are born with abilities or traits which 99.9% of humans do not possess.

In fact, this concept could even be extended beyond athletics: the leading physicists are born able to understand extremely complex concepts and formulas, the best singers are born with the ability to hit otherwise-unthinkable notes, the most influential politicians were born to connect with people, etc.

So, it would be either misunderstanding or outright jealously that would drive officials to disqualify athletes for their inherent capabilities.

Second, Semenya's case: the answer is technically uncertain right now because, as mentioned, the testing must be done. However, I think we can assume that she has female genitalia, given how far she's made it without anyone pointing out this obvious problem for a woman athlete. So what could the testing reveal that would justify revoking her medal? It is difficult for me to imagine a strong case against letting Semenya celebrate her hard work and ability through a gold medal -- and probably more in the future.

In this case, we must embrace individuality, not punish it.

Missing the Point of the Public Option

The following was written by guest author Sue Ann Orsini.

Tonight, President Obama gave a press conference to further discuss the health care reform initiative. (Transcript available here.) A question was asked regarding the public plan option, particularly on whether or not Obama would use his own Administration’s plan if his family members were sick, even if the plan didn’t offer all types of available treatment. The same question was posed by a doctor during ABC’s “Prescription for America” discussion held last Friday. And while the President fumbled his way through a mostly political response at both events, I wondered why he wouldn’t just say the truth – questions of this sort are meaningless and betray a deep lack of understanding about what a public option would mean.

Certainly, these questions illicit emotional responses, particularly fearful mob reactions to the word "socialism" that inevitably pops up when the public plan is discussed, and also anger over long-standing class-based complaints that the rich and powerful always get a better product. For me, asking whether or not Obama would use his public plan overlooks two very important issues. First, a public option may improve the health of the insurance markets by providing competition and regulation of the industry. And second, anyone who insinuates that the Administration’s public option will be the only option has obviously not read the text of any Congressional proposals.

The health insurance market is complex. It's not just composed of big name companies, like Blue Cross or Aetna, but a number of side-players, including Pharmacy Benefit Managers (PBMs), that actually have great influence on cost and sometimes commit outright fraud. Hardly any regulation governs these health care middlemen, and they are left relatively free to set prices. Such rampant manipulation hurts consumers and propagates an unhealthy market. Congress has been aware of this manipulation for years - the courts have, too. Major litigation occurred only a few years ago concerning pharmaceutical price-fixing. And just last Thursday, the Senate Commerce Committee held a hearing to address issues of competition in health care insurance. The public option would attempt to regulate the health care market by providing an alternative to private plans (keyword here is alternative).

As for my second issue, I wonder how many people running around screaming "Socialism!" have actually read the part of the recently introduced House bill concerning the public option. Nowhere in that bill text does it say that we will have to choose the public plan. Nowhere does it suggest that you can't continue with the coverage you have right now. The argument that a public plan will take away your choice and drive us down the road to socialism is a lie propagated by people who fear change. And to those people I would ask this question: Do you truly have a free choice now as to what kind of doctor you can see? Do you truly have a choice as to which treatments you can seek without paying through the nose?

My recent journey into the health care system tells the story - I hurt my back, was constrained as to which doctors, specialists, chiropractors, etc., that I could see through my insurance plan. I was constantly on the phone with my insurance company making sure as to what they would cover. And then, when I transitioned into employer-based insurance, I had to prove to that I'd been covered before in order to waive the "pre-existing condition" clause (something which would be forbidden by the current bill). I may be able to get insurance through my employer now, but I have no choice as to which insurance company I use. Adding a public option into this mix isn't going to make my lack of choices any more or less pronounced. It may improve things.

In the end, much of the discussion over the public plan amounts to nothing more than fearmongering disguised as rhetoric. Fearmongering gets us nowhere and rhetoric can leave a bad taste in the mouth. Check out the latest bill for yourself and come to your own conclusions.

Sue Ann Orsini is a law librarian that specializes in the legislative process. She works in Washington DC.

ALTERATION: on 23 July at 11:43 AM, the title of this post was changed.

White Man's Neutrality

Last Thursday, Steven Colbert (on The Colbert Report) used his conservative pundit spoof, yet again, to express through humor what most news media either miss, skew, or don't say outrightly. In this case, he performed another in his regular segment called "The Word" -- a satire of Bill O'Reilly's "Talking Points" -- in which Steven pontificated the claim that Supreme Court nominee Sonia Sotomayor's life experience is a scar on her record while all past (white) nominees' life experience was an asset to their qualifications as a judge. Using this ridiculous argument, Steven was pointing out the hypocrisy of those (in news media or politics) that focus on Sotomayor's pride in her life experience as a problem. Most delightfully, Colbert makes this argument using a comparison between the nomination and an ordeal over the color of Band-aids. I'll let you see for yourself the brilliant connection -- watch the clip below. (If the video does not show up, then click this link.)

This clip also had me thinking: pushing out material like this four nights every week, it must be exhausting to be a writer for The Colbert Report.

What Scares the Chinese Communist Party?

The past couple of months have seen events heat up (and then cool down) over internet censoring system in China, called Green Dam Youth Escort. This program is purportedly meant to protect Chinese youth from pornography, though many are concerned that the program could be used to expand surveillance or censorship. In May, the CCP (Chinese Communist Party) ordered that all computers sold in China have that software installed by 1 July. The ultimate result was a rare occurrence in national Chinese politics: on 30 June, the CCP retracted its directive. Actually, to be more accurate, they "postponed" the directive. In fact, a government official said that the CCP "will definitely carry on the directive on Green Dam. It's just a matter of time." But even if this does happen, it is questionable whether or not the directive will be enforced strictly.

Setting aside the distinct possibility that Green Dam will eventually be mandated on all Chinese computers, there is a more important question that bears on whether or not the directive is ever truly carried out: why did the CCP step back in the first place? In other words, what scares the CCP enough to so clearly reconsider their policy?

In short: the people of China.

The blowback against Green Dam came from both domestic (primarily netizens) and foreign (IT industry, governments, civil liberties groups) sources in China. But while some claim that pressure from the outside was important, I think that pleasing foreign audiences is only a bonus in the calculus of the CCP decision -- not the primary factor.

There are two particular reasons why Chinese citizens -- not foreign entities or foreign NGOs -- are most responsible. First, the reaction from Chinese internet users, who would be most affected by Green Dam, was powerful. This community of 300 million is a tremendous social force, particularly if a great number of them become unified behind an interest. And the CCP monitors internet chatter constantly, gauging reactions to certain policies. In the case of Green Dam, the CCP had overstepped a line. Chinese netizens saw it, at best, as a computer-wrecking software and, at worst, a threat to their rights. Most profoundly, an open letter was published by a group of anonymous Chinese netizens, in which they explicitly threaten the CCP:

"We hereby declare that we, the Anonymous Netizens, are going to launch our attack worldwide on your censorship system starting on July 1st, 2009."

The attack was never commenced. But the CCP also retracted its directive the day before the netizens' action was to take place. So it is hard to know for sure whether or not the letter was a bluff. In any case, the rejection of Green Dam by the Chinese public was clear. And as a one-party state, significant discontent of the people cannot be expressed through voting or organized lobbying. It can only be expressed through dissent. This is not a road down which the CCP wants to trek.

Second, in past events involving domestic civil liberties, foreign entities have had little to no leverage over the CCP. China and its government is now too large, powerful, and prosperous to be heavily influenced by other governments when it comes to domestic policy. The CCP knows full well that any threats of economic sanctioning are empty because most large nations are too intertwined with China's trade sector. And no amount of protest from the outside has ever changed CCP policy over, for example, forced citizen relocation for infrastructure projects and the Olympics, policy in Tibet, political prisoners, or policy in Xinjiang. (A caveat: governments or foreign entities that work to develop Chinese civil society can arguably have a long-term effect on grassroots pressure for change from within the country.)

Even foreign companies that were affected by the Green Dam directive do not have as much influence as some would like to think. Technology firms do business in China knowing very well that the government has myriad restrictions. But if and when the Green Dam directive is carried out, those companies will continue to do business in China for the same reason that they were there before the new rule: the Chinese tech market is huge. (And this is particularly attractive in a time when the world's previous champion of consumerism -- America -- is dealing with a deep recession.)

In addition to both of these reasons, Green Dam has been shown to be rather ineffectual, thus reducing the opportunity cost for the Chinese government.

The lesson here is that the CCP knows to whom it is primarily accountable. And those people are standing firmly within the borders of China. More accurately, many of them are probably sitting in front of their computers... blogging.