International Law Explained

Kal Raustiala:

I think international law is one of these things that’s a little bit like the air where it’s everywhere. We don’t really notice it so when you get on a plane and you fly to Europe the ability to get on that plane, cross over the air space of other countries, sometimes you see the little map when you’re in the plane that shows you’re crossing over Greenland or whatever, all of that is governed by international law in different ways. Different treaties are in place to take care of all the questions that might arise about aviation. So that’s a really mundane example and then at the other extreme we’ve got much more contentious examples like--  Let’s take the war in Iraq. So as most of us remember in the run up to the war the Bush administration went to the security council at the United Nations and tried to get a second resolution, and they’re doing that because there is a legal framework in place that governs the ability of countries to enter in to armed conflict. So between those two bookends a zillion other examples but I think the thing to recognize about international law is in a globalized world, in an integrated world, you are constantly dealing with things that are crossing borders or you’re crossing borders and international law is usually playing some role in shaping that.

Question: What dictates international law?

the most common thing are treaties and most of us are familiar with--  I mentioned aviation. There are treaties governing that. The UN itself was created by a treaty. So treaties are kind of the backbone a little bit like we think of statutes in the domestic context, but we do have something like common law. We call it customary law so a good example would be the law of the sea. There’s all kinds of rules about ships and their ability to go on the high seas and who can board and where they can cross. Most of that is governed by custom and the idea is this custom kind of a cruise over time like the common law becomes entrenched and accepted as law, and then there is also courts. Right. So we have--  The International Court of Justice sits in The Hague and we’ve got a series of other courts. Right. The World Trade Organization has a court and so forth. So there is a set of judicial institutions much like in our domestic system so in a lot of ways it’s a very similar system. There isn’t I suppose a constitutional equivalent. There isn’t a kind of grand governing thing but there are literally tens of thousands of treaties so a surprising amount of topics are covered.

Question: Who are the governing bodies?

There are a whole set of international organizations so from the United Nations being the most broad, the most elaborated, probably the most famous. The World Trade Organization is a little more specialized and then you’ve got dozens and dozens and dozens, thousands probably, of these subsidiary international organizations, international maritime organization dealing with law of the sea questions and so on down the line. And these have been created over the years. Some of them date back to the nineteenth century but for the most part that’s a kind of twentieth-century phenomenon so one of the things we see in the last century or so has been one, the rise of these international organizations, the UN being the paramount example, and two, the use of treaties. Treaties existed in the past but when we talked about custom and common law that was much more common. Now we tend to codify that in to treaty. So those two things are sort of two major trends of the last century.

Question: How will globalization affect international law?

in the sense that you can have a treaty for example in which every country is a member of that treaty and so would be governed by that, and in fact we have lots of treaties that are pretty close to what you’ve got in virtually every single country. The Convention on the Rights of the Child I think is a good example where only the United States and Somalia when I last checked were not parties to that treaty. The United Nations Charter comes pretty close. Right. So virtually every country--  Switzerland for a long time was a holdout. Virtually every country is part of the UN system and so governed by the rules of the UN Charter so there is no barrier to that and we do see it.

The depth and breadth of international law.

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Politics & Current Affairs

Political division is nothing new. Throughout American history there have been numerous flare ups in which the political arena was more than just tense but incideniary. In a letter addressed to William Hamilton in 1800, Thomas Jefferson once lamented about how an emotional fervor had swept over the populace in regards to a certain political issue at the time. It disturbed him greatly to see how these political issues seemed to seep into every area of life and even affect people's interpersonal relationships. At one point in the letter he states:

"I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend."

Today, we Americans find ourselves in a similar situation, with our political environment even more splintered due to a number of factors. The advent of mass digital media, siloed identity-driven political groups, and a societal lack of understanding of basic discursive fundamentals all contribute to the problem.

Civil discourse has fallen to an all time low.

The question that the American populace needs to ask itself now is: how do we fix it?


Discursive fundamentals need to be taught to preserve free expression

In a 2017 Free Speech and Tolerance Survey by Cato, it was found that 71% of Americans believe that political correctness had silenced important discussions necessary to our society. Many have pointed to draconian university policies regarding political correctness as a contributing factor to this phenomenon.

It's a great irony that, colleges, once true bastions of free-speech, counterculture and progressiveness, have now devolved into reactionary tribal politics.

Many years ago, one could count on the fact that universities would be the first places where you could espouse and debate any controversial idea without consequence. The decline of staple subjects that deal with the wisdom of the ancients, historical reference points, and civic discourse could be to blame for this exaggerated partisanship boiling on campuses.

Young people seeking an education are given a disservice when fed biased ideology, even if such ideology is presented with the best of intentions. Politics are but one small sliver for society and the human condition at large. Universities would do well to instead teach the principles of healthy discourse and engagement across the ideological spectrum.

The fundamentals of logic, debate and the rich artistic heritage of western civilization need to be the central focus of an education. They help to create a well-rounded citizen that can deal with controversial political issues.

It has been found that in the abstract, college students generally support and endorse the first amendment, but there's a catch when it comes to actually practicing it. This was explored in a Gallup survey titled: Free Expression on Campus: What college students think about First amendment issues.

In their findings the authors state:

"The vast majority say free speech is important to democracy and favor an open learning environment that promotes the airing of a wide variety of ideas. However, the actions of some students in recent years — from milder actions such as claiming to be threatened by messages written in chalk promoting Trump's candidacy to the most extreme acts of engaging in violence to stop attempted speeches — raise issues of just how committed college students are to
upholding First Amendment ideals.

Most college students do not condone more aggressive actions to squelch speech, like violence and shouting down speakers, although there are some who do. However, students do support many policies or actions that place limits on speech, including free speech zones, speech codes and campus prohibitions on hate speech, suggesting that their commitment to free speech has limits. As one example, barely a majority think handing out literature on controversial issues is "always acceptable."

With this in mind, the problems seen on college campuses are also being seen on a whole through other pockets of society and regular everyday civic discourse. Look no further than the dreaded and cliche prospect of political discussion at Thanksgiving dinner.

Talking politics at Thanksgiving dinner

As a result of this increased tribalization of views, it's becoming increasingly more difficult to engage in polite conversation with people possessing opposing viewpoints. The authors of a recent Hidden Tribes study broke down the political "tribes" in which many find themselves in:

  • Progressive Activists: younger, highly engaged, secular, cosmopolitan, angry.
  • Traditional Liberals: older, retired, open to compromise, rational, cautious.
  • Passive Liberals: unhappy, insecure, distrustful, disillusioned.
  • Politically Disengaged: young, low income, distrustful, detached, patriotic, conspiratorial
  • Moderates: engaged, civic-minded, middle-of-the-road, pessimistic, Protestant.
  • Traditional Conservatives: religious, middle class, patriotic, moralistic.
  • Devoted Conservatives: white, retired, highly engaged, uncompromising,
    Patriotic.

Understanding these different viewpoints and the hidden tribes we may belong to will be essential in having conversations with those we disagree with. This might just come to a head when it's Thanksgiving and you have a mix of many different personalities, ages, and viewpoints.

It's interesting to note the authors found that:

"Tribe membership shows strong reliability in predicting views across different political topics."

You'll find that depending on what group you identify with, that nearly 100 percent of the time you'll believe in the same way the rest of your group constituents do.

Here are some statistics on differing viewpoints according to political party:

  • 51% of staunch liberals say it's "morally acceptable" to punch Nazis.
  • 53% of Republicans favor stripping U.S. citizenship from people who burn the American flag.
  • 51% of Democrats support a law that requires Americans use transgender people's preferred gender pronouns.
  • 65% of Republicans say NFL players should be fired if they refuse to stand for the anthem.
  • 58% of Democrats say employers should punish employees for offensive Facebook posts.
  • 47% of Republicans favor bans on building new mosques.

Understanding the fact that tribal membership indicates what you believe, can help you return to the fundamentals for proper political engagement

Here are some guidelines for civic discourse that might come in handy:

  • Avoid logical fallacies. Essentially at the core, a logical fallacy is anything that detracts from the debate and seeks to attack the person rather than the idea and stray from the topic at hand.
  • Practice inclusion and listen to who you're speaking to.
  • Have the idea that there is nothing out of bounds for inquiry or conversation once you get down to an even stronger or new perspective of whatever you were discussing.
  • Keep in mind the maxim of : Do not listen with the intent to reply. But with the intent to understand.
  • We're not trying to proselytize nor shout others down with our rhetoric, but come to understand one another again.
  • If we're tied too closely to some in-group we no longer become an individual but a clone of someone else's ideology.

Civic discourse in the divisive age

Debate and civic discourse is inherently messy. Add into the mix an ignorance of history, rabid politicization and debased political discourse, you can see that it will be very difficult in mending this discursive staple of a functional civilization.

There is still hope that this great divide can be mended, because it has to be. The Hidden Tribes authors at one point state:

"In the era of social media and partisan news outlets, America's differences have become
dangerously tribal, fueled by a culture of outrage and taking offense. For the combatants,
the other side can no longer be tolerated, and no price is too high to defeat them.
These tensions are poisoning personal relationships, consuming our politics and
putting our democracy in peril.


Once a country has become tribalized, debates about contested issues from
immigration and trade to economic management, climate change and national security,
become shaped by larger tribal identities. Policy debate gives way to tribal conflicts.
Polarization and tribalism are self-reinforcing and will likely continue to accelerate.
The work of rebuilding our fragmented society needs to start now. It extends from
re-connecting people across the lines of division in local communities all the way to
building a renewed sense of national identity: a bigger story of us."

We need to start teaching people how to approach subjects from less of an emotional or baseless educational bias or identity, especially in the event that the subject matter could be construed to be controversial or uncomfortable.

This will be the beginning of a new era of understanding, inclusion and the defeat of regressive philosophies that threaten the core of our nation and civilization.