Archive for the ‘treaties’ Category

Regarding the Policy Toward Syria

RegardingThePolicyTowardSyria   <–  PDF version

The civil war in Syria has been in progress for about 30 months, and an estimated 100,000 people have been killed thus far.  The U. S. government has claimed to have evidence that the national forces in Syria loyal to President Bashar Assad used some form of chemical weapon on 21 Aug 2013 in a suburb of Damascus, resulting in the deaths of 1429 people, of which 426 were children.  This information was detailed in an unclassified document released by an unidentified component of U. S.intelligence services, according to U. S. Secretary of State John F. Kerry on 30 Aug 2013.  Members of Congress and the administration have been given further classified briefings on the subject.  In Mr. Kerry’s address, he cited “clear and compelling” evidence that Mr. Assad’s forces had used chemical weapons, noting America has an “obligation to act”, and that “Assad must be punished for his crime against humanity”.  President Obama stated on 31 Aug 2013 that that America must “hold the Assad regime accountable for the use of chemical weapons” in order to confirm the “writ of the international community” against the use of those weapons.  Although he did not mention it, presumably Mr. Obama was referring to prohibitions on the use of chemical weapons per two treaties, The Geneva Protocol and the Chemical Weapons Convention [1, 2].  The President also claimed that America “can not and will not turn a blind eye to what happened in Damascus”; that “this menace must be confronted”; and that although he had unilateral authority to attack Syria in response, he would seek authorization from Congress when it returned from summer vacation on 9 Sep 2013.

On 1 Sep 2013, Mr. Kerry further stated that “we do not grant impunity to a ruthless dictator to gas his own people”.  Senator Jack Reed likewise stated that America must “vindicate this principle of international law” against the use of chemical weapons; and former Senator Joseph Lieberman called Mr. Assad a “mass murderer”.

Mr. Obama has clarified the extent of any military action, saying a) it will be of a limited duration, b) it will not cause any U. S troops to be deployed in-country, and c) it will not seek to overturn the government of Mr. Assad.  According to public reports, these limitations imply that any U. S. attack on Syria will involve only cruise missiles, likely targeted at either chemical weapons factories or air bases.  The urgent tone of Mr. Kerry’s 30 Aug address, implying that action was imminent, followed by Mr. Obama’s 31 Aug announcement that he will wait nearly two weeks for a Congressional vote has caused some confusion in the Middle East.  The Syrians and their Iranian allies are celebrating an apparent political victory.  The Israeli’s are angry at Mr. Obama’s timidity and question his sincerity about another ultimatum he previously issued regarding Iran’s development of nuclear technology.  The Syrian rebel forces are disappointed but hopeful that a positive vote by Congress will assure them of consistent aid by the American military.  Meanwhile, the British Parliament has denied Prime Minister David Cameron’s request to pursue military action against Syria. France has announced it is in favor of some action, but has declined to say what they are contemplating.

The focus on chemical weapons by the administration derives from a speech given a year ago by Mr. Obama, in which he referred to the use of any chemical weapons by the Syrian regime as a “red line” that would trigger a response by the U. S.  Given the current confusion over the actual policy, it is clear that Mr. Obama issued a “red line” threat without having a firm approved plan in place to act if the red line were crossed.

There is some confusion among the American ruling elite regarding Mr. Obama’s unilateral powers.  Some, like Senator Rand Paul advise Mr. Obama that he requires authorization from Congress.  But there are many others like Representative Peter King, who claims that Mr. Obama “does not need Congress to authorize a strike on Syria”.

Let us consider some facts outside this jungle of rhetoric.  First, it is important to remember that the population of Syria is Arab.  Nearly all Arabs practice the religion of Islam.  The religion of Islam demands a totalitarian government, preferably a religious one.  But most Arab nations are governed by secular dictators, having succeeded in winning the secular tribal wars and neutralizing the active religious elements.  An Arab dictatorship (or an absolute monarchy) is a good thing for Arab nations: these totalitarian governments maintain some semblance of peace and order; otherwise the Arab race would have exterminated itself several centuries ago in intra-Islamic religious warfare.  History shows that the Arab race requires absolute government for its very existence, whether provided by the Romans, the Byzantines, the Turks, or their own domestic tyrants.  The Arab people, with their long and distinguished history, expect the worst from their governments, as they also expect the worst from each other. If in fact Mr. Assad used chemical weapons against the Syrian people, it is not much of a surprise to them.  On the other hand, it will also be no surprise to them if it is found that the rebel forces or Hezbollah used them.

Second, the American people should expect this whole Syrian debate to be a continuing fountain of political hypocrisy by the respective ruling Parties.  If Congress authorizes an attack on Syria, but the President decides not to follow-through, he will be accused of weakness and abandoning Israel.  If Congress authorizes it and he does launch a very limited attack, the President will claim a great moral victory but will in fact accomplish nothing.  If Congress refuses the authorization, and the President attacks anyway, he will justify it as a police action and not an act of war; two weeks later he will claim he went to war to preserve international consensus.  If Congress refuses the authorization and the President abides by it, the ruling elite will have somehow managed by accident to obey the intent of the Constitution (Art. 1, Sec 8).  For any attack upon Syria is an act of war, even if it is limited to cruise missiles.  (If Canada launched cruise missiles against Ft. Drum (Watertown, NY), or Mexico against Ft. Bliss(El Paso TX), both would surely be regarded as acts of war by the entire ruling elite.)  The U. S. Constitution was founded on the notion of just war in the interest of the American people, not the interest of people fighting in foreign civil wars; nor to satisfy the moral conscience or ambition of government officials.  As John Jay wrote in The Federalist #3:

Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first.  The safety of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively.

At present I mean only to consider it as it respects security for the preservation of peace and tranquility, as well as against dangers from foreign arms and influence, as from dangers of the like kind arising from domestic causes.  As the former of these comes first in order, it is proper it should be the first to be discussed.  Let us therefore proceed to examine whether the people are not right in their opinion that a cordial Union, under an efficient national government, affords them the best security that can be devised against hostilities from abroad.

The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether real or pretended, which provoke or invite them.  If this remark be just, it becomes useful to inquire whether so many just causes of war are likely to be given by United America as by disunited America; for if it should turn out that United America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations.

The just causes of war, for the most part, arise either from violations of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us.  She has also extensive commerce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to.

It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate states or by three or four distinct confederacies.

Jay’s main argument is that the thirteen states would be better able to obey treaty provisions, and to negotiate better ones, if united under the Constitution than by entering into treaties individually.  Likewise a united nation will be better prepared to respond appropriately to violations of treaties by foreign powers.  We can discover the meaning of “the law of nations” from the same source as the Founding Fathers did, the eminent English jurist William Blackstone [3]:

If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature [morality, or the duty towards one's neighbor], and the law of God.  Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and, in a state of nature, we are all equal, without any other superior but Him who is the author of our being.  But man was formed for society; and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do it.  However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse.  Hence arises a third kind of law to regulate this mutual intercourse, called “the law of nations”, which as none of these states will acknowledge a superiority in the other, cannot be dictated by any, but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject …”

These show that committing an act of war against Syria is justifiable under only two circumstances: a) if Syria were to attack the U. S. directly; or b)Syria had violated the terms of a treaty and the violation is either against the U. S. directly, or obligates the U. S.to defend other signatories.  Neither case arises here: a) Syria clearly did not attack the U. S.; and b) secondly, neither of the aforementioned treaties prohibits the use of chemical weapons in a domestic conflict, nor do they obligate any signatory to respond to any use in violation thereof.

If the U. S. does attack Syria, it will do so only because our ruling elite has arrogated to itself the power to regulate the internal affairs of other nations.  The President has claimed that such an attack, if accomplished, will not involve an actual invasion.  But these so-called minor military adventures sometimes expand in scope as recent history has proved.  We should also remember that if a great power like the U. S. attacks a minor power like Syria to interfere in a civil war, the U. S.will end up with imputed responsibility for the outcome.  A previous paper [4] provided a crude means to estimate the cost and duration of full-scale wars as fought in Iraq and Afghanistan; for such a war in Syria, the cost would come to about $ 179 billion, and the duration would be about 2.7 years.

[1]        The Geneva Protocol, formally known as the “Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare”, was signed 7 Sep 1925.  The U. S. abided by the provisions of the Protocol, but was not formally ratified by the U. S. Senate until 16 Dec 1974.

[2]        The Chemical Weapons Convention prohibits production and use of chemical weapons, provides for scheduled destruction of chemical weapons, but contains no provision for punishment of violators.  It was signed 13 Jan 1993 and ratified by the U. S. Senate ratified 24 Apr 1997.

[3]        Sir William Blackstone, Commentaries on the Laws of England, 1765, Vol. I, p. 43; the sections in square brackets are summaries of Blackstone’s footnotes.

[4]        Edward D. Duvall, Formulas for Estimating the Costs of War, 24 Mar 2012.  For Syria, the value of f is 4, and g is 6.25.  Syria’s area is 186.4 sq. km and its population is 22.53 million.  See archives for Mar 2012 at http://edduvall.com, or directly at  http://0336a2b.netsolhost.com/WordPress/?m=201203

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The Defects of the Articles of Confederation, Part 5

Defects_of_the_Articles_of_Confederation_5  <== PDF version

Every successful nation that intends to remain independent requires the ability to regulate commercial activities with foreign nations.  Historically, national governments have used the management of foreign trade for several purposes, including: a) generation of domestic revenue through imposition of duties and tariffs; b) restrictions or prohibitions on the exportation of certain items which would give competing nations an equal or superior military advantage (such as the U. S. Munitions List); c) regulation on the quality of articles that can be imported (such as consumer safety); d) as a means of promoting trade and closer relations with certain “favored nations”; e) outright prohibition on the importation of articles deemed dangerous (such as “illegal drugs”); f) restrictions on imports to protect domestic industry or stimulate domestic investment and production; g) management of boycotts of certain enemy nations; and h) indirect means to influence domestic policies in a foreign nation (such as restrictions on goods imported from nations that allow child labor).  Nearly all of these have been tried in different times and to different degrees by every nation.  While the first four are eminently practical and wise, the last two are useful only for making symbolic political statements.  The remaining two are generally well-meaning but ineffective, and may sometimes be dangerous.  Regardless of their wisdom or lack thereof, the main point is that every nation has a legitimate power to pass laws regulating foreign commerce as a means to advance or protect its interests.  The consequences of an inability to do so can be illustrated by a review of the events in this area while the Articles of Confederation were in effect.

The states were prohibited by Article VI of the Articles of Confederation from contradicting any provision in any subsequent treaty then in negotiations with France and Spain.  Also, they retained powers over the most important aspects of commercial treaties.

Article VI.  No State, without the consent of the United States, in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince or foreign state; nor shall the United States, in Congress assembled, or any of them, grant any title of nobility.

            No two or more States shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

            No State shall lay any impost or duties, which may interfere with any stipulations in treaties entered into by the United States, in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts ofFrance andSpain.

Article IX.  The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth Article; of sending and receiving ambassadors; entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever; of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts for receiving and determining finally appeals in all cases of capture; provided that no member of Congress shall be appointed a judge of any of said courts.

By the ninth Article, the states had the power to regulate commerce by imposts and duties, so long as foreigners were treated equally with Americans, and also retained the power to prohibit exports or imports as they saw fit.  During the war, the ability to make meaningful trade regulations in the states was limited.  After the war, the states naturally proceeded to enact laws that they believed best advanced their interests.  One of the main issues, as detailed in the third essay in this series, was how to respond to Great Britain’s Navigation Acts.  Recall that these were designed to limit America’s ability to conduct trade with British territories; in fact was designed to prevent the Americans from gaining a significant share of the carrying trade in the western Mediterranean.  Britain was able to capitalize on the weakness of each state, and the inability of Congress to form a united front in its alleged capacity to negotiate treaties for all thirteen states.

On 26 Apr 1784, Congress passed a resolution stipulating that all treaties were to be represented as an agreement with all thirteen states.  But since the Articles of Confederation allowed the states to determine import and export rules as well as the setting of duties, which constituted important provisions in commercial treaties, Congress in effect was not able to force the states to abide by any treaties that were negotiated by the ambassadors.  There was therefore little incentive for foreign nations to enter into treaties with the United States. Great Britain chose to adopt a policy of negotiating with each of the states separately; but any state that did so would be in violation of the Articles prohibiting separate treaties by states.

By the end of 1783, Britain’s Navigation Acts had ruined much of the commercial activity in the states.  The Virginia state legislature had passed a resolution in which they urged all the other states to grant Congress a power to respond to them.  On 30 Apr 1784, Congress passed a resolution recommending to the states that it be given power for 15 years to develop and enforce regulations in response to the Navigation Acts.  But the states never did agree to grant Congress this power, as there was considerable suspicion among the states that Congress would be unable or unwilling to develop rules that were equally fair to all the states.  By Mar 1786, several states had granted some powers to Congress to either regulate trade or impose a revenue duty, but they were inconsistent and could not be used to justify a modification to the Articles.  All Congress could do was to issue another request for consideration of the initial resolution.

Meanwhile, a general authority lacking in Congress, the states did as they believed best for themselves.  In Jan 1785, New York imposed a two-fold duty on goods arriving in British ships, as retaliation for the Navigation Acts.  These were passed onto the residents of New Jersey, since they imported their goods from New York.  The residents of New Jersey were thus forced to pay a duty to New York, without any corresponding advantage to their treasury.  By the spring of 1785, merchants in Massachusetts organized a boycott of all British-owned businesses in the state.  In Jul 1785, Massachusetts prohibited exports carried on British ships, levied a tonnage duty, and imposed high duties on certain foreign goods in order to protect domestic manufacturers.  New Hampshire and Rhode Island passed nearly identical laws a week or two later.  Connecticut then opened its ports to British ships, and imposed a tax on imports from Massachusetts.  In Sep 1785, Pennsylvania passed a law imposing duties on 70 items, especially iron manufactures, and imposed a tonnage duty on the ships of any nation that did not have a commercial treaty with Congress.  Pennsylvania also passed laws against trade with Delaware and New Jersey.  As states levied duties on imports, the trade was simply carried to ports in other states, negating the alleged benefits of a revenue duty.  New York imposed heavy duties on imports from Connecticut and New Jersey, including a requirement that every shipment, no matter how small, be obliged to clear customs upon entering any port in New York.  Connecticut responded with a boycott on commerce with New York.  New Jersey retaliated by imposing a large tax on a lighthouse owned by New York, but sitting on an island off the coast of New Jersey.  Most of the states violated the most-favored-nation provisions of the treaties with Holland and France.  In other words, America was in the midst of a trade war among the states, and in violation of agreements with other nations.  Fortunately, the Convention of 1787 occurred before any shooting wars between the states, and the Constitution that resulted resolved the commercial trade issues.

The lack of requisite powers over trade in the Articles of Confederation was so obvious to the delegates at the Convention, that there was little argument over giving them generally to the federal government.  Ultimately, the U. S. Constitution as devised at the Convention addressed all these difficulties by four methods.  First, in regard to treaties in general, the Executive was given power to negotiate them, but they require ratification by the Senate, as detailed in part 3 of this series (Article 1, Section 10; Article 2).  Second, Congress was given general legislative power over foreign trade not covered by treaty (Article 1, Section 8).  Third, Congress was given legislative power to regulate trade between the states and the Indian tribes (Article 1, Section 8 with the caveats per Article 1, Section 9).  Fourth, the states are prohibited from imposing import and export levies except for the costs of inspection, and any excess revenue is to be devoted to the United States (Article 1, Section 10).  The relevant texts are:

Article 1, Section 8, First and Third Clauses:

            The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

            To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Article 1, Section 9, Fifth and Sixth Clauses:

            No Tax or Duty shall be laid on Articles exported from any State.

            No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Article 1, Section 10:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

            No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

            No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

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The Defects of the Articles of Confederation, Part 3

Defects_of_the_Articles_of_Confederation_3  <== PDF version

Dear readers:

This paper is available only in .pdf format.  It is the third in a series on the defects of the Articles of Confederation and how they were remedied by the Constitution.  This particular paper discusses the power to make treaties.

Thanks,

EDD

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