To: Oeconomicus who wrote (7451 ) 9/5/2007 3:23:51 PM From: TimF Respond to of 10087 ...The Antigua story underscores how asymmetries operate in international trade and political relations. A regulatory regime is created, but that fact does not guarantee "fairness". The huge disparity in the size between Antigua and the United States makes the island's trade retaliatory power weak. And in a straight trade dispute the odds would weigh overwhelmingly in favor of the US. But lawyers are clever and the loophole cited by the New York Times makes it possible for Antigua to demand the right to pirate US intellectually property -- under the rules -- and "morally" too because a mechanism which allowed the US to use is preponderant economic power would be "unfair". Where have we seen this before? Pretty much everywhere. While not exactly the same, the Antigua decision has structural similarities to the way some international lawyers think about the Geneva Convention and human rights legislation. The US is "bound" by the letter of the law, and if a terrorist mass murderer can find a legal loophole to escape then he is "entitled" to use it. But the Convention is not obeyed by weaker parties because it is impractical to enforce it. Just as pirated DVDs can be found being openly sold in many street corners in Asia without being similarly available in places like Australia, countries with well-functioning legal systems find themselves at a disadvantage compared to countries with no enforcement. In the area of human rights, for example, America has courts before which lawyers can appear. Al-Qaeda has a cave in Pakistan where accommodations are notoriously poor. The US will obey a legal judgment. Legal judgments against al-Qaeda are an exercise in futility. Who will lawyers sue? Under these conditions the full weight of international law will always come down hardest on the most law-abiding. It's ironic that WTO may be reluctant to enforce its own judgment because it has such an appearance of unfairness that it may create a backlash against itself. But give them time and they will become as stone faced as the human-rights advocates. The condition is so pervasive it almost seems natural. For example, illegal immigrants are allowed to use every US statute on the books to plead their case, as they should be. But others parties technically bound by the same obligation are under no de facto compulsion to behave similarly. "A Mexican Senate committee passed a measure Wednesday urging President Felipe Calderon to send a diplomatic note to the United States protesting the deportation of an illegal migrant who took refuge in a Chicago church for a year," even though Mexico itself summarily deports thousands of Central Americans who cross into it. The power disparity between countries like the United States and other countries is offset by the disparity in expectations of compliance. It would be considered natural for Khalid Sheik Mohammed to ask for his "rights" under international law, but an American soldier captured by al-Qaeda can hardly make the same request -- unless he wants to kill his captors with laughter -- which might be a violation of the Geneva Conventions itself. The application of "international law" to heterogeneous world often results in a split-level regulatory environment in practice. And that, sad to say, is probably how it is intended. What's the alternative? An abolition of treaties? A return to the law of the jungle? Agreements between states are often advantageous. Some form of international law benefits everyone. But the worst excesses should be curbed. Maybe some of the logic behind tort reform can be applied to international law regime in order to improve it. Some way must be found to dampen the economic incentives which direct lawsuits not at those most liable for an offense but against those most able to pay for one. Some means must be discovered to enforce agreements in countries where they are least likely to be obeyed rather than to concentrate on ever-stricter enforcement in the only places willing to abide by the letter of the regulation. Otherwise the whole system will resemble that of the proverbial drunk who sought his lost keys under a lamppost, though he didn't misplace them there simply because that was only place where there was light to search by. posted by wretchard at 8/23/2007 07:18:00 PMfallbackbelmont.blogspot.com