Opportunities for peace

“War morale forces are to physical as three to one” - Napoleon the First of France.

Putin has committed the class A war crime against peace by launching an invasion of a nation that posed no threat to him. In this, he joins the reviled company of the Japanese Imperial forces (China in the 1930s) and Nazi Germany (Czechoslovakia and then Poland in 1930s). 

Let’s consider some of the wars and invasions the world has suffered since the end of the Second World War.

There have been other aggressions in a category of border wars or invasions of “tributary states”, such as the Soviet Union’s invasions of East Germany (1953), Hungary (1956), and Czechoslovakia (1968), China’s wars against Tibet, India, and Vietnam in the 1950s through 1979, the Soviet Union’s invasion of Afghanistan (also in 1979), India’s invasion of Goa (1961), Iraq’s invasion of Iran (1980), The USA’s invasions of Grenada and Panama (1983 and 1989), Rwanda’s invasion of Zaire (1996), Eritrea’s invasion of Ethiopia (1998), and the South African Border War (incursion into Angola, 1975), and Israel’s invasion of Lebanon (1982). These were different from full-scale invasions because one or more of the following conditions applied: 

1. in some cases the invading power was responding to violent attacks from across the border; 
2. the invasions involved locally dominant powers attacking small or weak states recognized to already be in their sphere of influence; 
3. some claimants to authority invited the invasion; 
4. The invasions were only attempts to secure a buffer zone or gain control over land claimed in border disputes, and were not invasions with an intention of taking over the attacked country.

There have been other sorts of invasions that were either wars of conquest or wars for the overthrow of a hostile government.  These would include such invasions as North Vietnam’s attacks on South Vietnam, the North Korean invasion of South Korea, Indonesia’s invasion of East Timor, Iraq’s conquest of Kuwait, the Tanzanian invasion of Uganda, the Vietnamese invasion of Cambodia, and various wars between Arab states and Israel.  In the case of Tanzania’s attack on Uganda and Vietnam’s attack on Cambodia, the invasions were practically humanitarian interventions, as the regimes in Uganda and Cambodia were pariah states where dictators engaged in mass murder and depravity that shocked the world.   In the cases of North Vietnam’s invasion of South Vietnam and North Korea’s invasion of South Korea, the conflict arose over disputes of how to handle political arrangements at the end of French and Japanese colonialism. The invasions were resisted in major wars; in Vietnam the North prevailed and unified the country, whereas in Korea the North failed and the country remains divided. 

In the wars between Arab states and Israel, the Arab states were defeated, and Israel continues to exist.  The Israelis captured territory from the aggressor states that attacked it; some land has been returned to Lebanon, Jordan, and Egypt, while some land that had belonged to Syria has been annexed by Israel. Under international law and treaty, Israel has a duty to eventually recognize Gaza and Palestine as an independent state, but Israeli society and governments seem to be working toward eventually incorporating these lands and the Palestinians who live there as stateless persons into Israel proper, much to the disgust of most of the planet. Indonesia’s invasion of East Timor was reversed when Indonesia became democratic and allowed citizens of East Timor to vote for independence. Iraq’s invasion of Kuwait was stopped by an international coalition that defeated Iraq in a war. 

NATO did not technically invade Afghanistan in 2001.  Instead, it assisted one claimant to legitimate authority in Afghanistan (the Northern Alliance) to achieve victory over another claimant to legitimate authority (the Taliban government) in a civil war, which works out as something nearly indistinguishable from an invasion.  

The coalition that invaded Iraq in 2003 despite widespread protests against the invasion (in which I took part) did so with the rationale that the dictator in Iraq had attempted to assassinate a former president of the United States and had acted aggressively in the past against neighbors (Iran and Kuwait), and had committed crimes against humanity within its borders (exterminating villages of Kurdish Iraqis, etc.), and was not being honest about its defense programs. Thus, the coalition claimed it was responding to threats.  The argument that there was a clandestine operation to build weapons of mass destruction in Iraq was a key part of the argument for invasion, but that particular argument was mostly a set of fabrications and lies created by figures in the United States government. The invasion of Iraq was aimed at a replacement of the government in Iraq, and not the incorporation of Iraq into an American sphere of influence, although of course the hope in George W. Bush’s government was that the resulting Iraqi government would be an American ally.  The new Iraqi government established under the protection of coalition occupation eventually asked the USA and coalition partners to remove their forces, and they did, and now Iraq is not quite an American ally.

The American invasion of Panama in 1989-1990 and the invasion of Grenada (1983) were justified by the USA as necessary to protect American lives, protect democracy and human rights, and stop criminal activity.  In the Grenada war of 1983, the USA’s invasion swiftly followed a violent coup in which the previous Prime Minister was executed/murdered, so that invasion had a plausible justification of stopping the rule of an illegitimate ruler and restoring a legitimate government.  

Although not an invasion, American and European involvement in the break-up of Serbia to allow the independence of Kosovo was another sort of military action with problematic aspects.  In retrospect, there is good evidence to show that this was justified on humanitarian grounds, because a massacre of Kosovar people was imminent. But, at the time, the evidence was not so clear, and the intervention was plausibly described as an illegal intervention in the sovereign nation of Yugoslavia (which was really just Serbia at that point).  The United States did not seek UN Security Council approval to intervene to protect Kosovo from the Serbian/Yugoslav government, and so the military intervention was in some sense a violation of international law.  But in effect, it prevented atrocities and massacres.  Like the American-European intervention in the Libyan revolution, there were problematic aspects, but in Libya at least there were United Nations resolutions authorizing intervention. At any rate, in Kosovo the United Nations became involved and essentially became the “occupying power” in Kosovo, so the intervention was not any sort of conquest.

So, in some of these invasions and interventions by the United States, there were humanitarian grounds justifying the interventions, or used to justify them, although their legitimacy is questioned.  Massacres of civilians were actually avoided by the American Air Force’s intervention to protect Kosovo from Serbia. The regime in Iraq was a pariah state similar to the cases of Uganda when Tanzania invaded it or Cambodia when Vietnam invaded it. Serbia (“Yugoslavia”) was also a pariah state during the liberation of Kosovo, given the genocidal behavior of the Serbian government and its proxies in the wars of independence in Croatia and Bosnia. The NATO action in Afghanistan was defensive in the sense that a terrorist group based in Afghanistan had attacked the United States and killed thousands of civilians, and Taliban authorities were not willing to arrest the terrorists, and there was another authority in Afghanistan (the Northern Alliance) engaged in a civil war with the Taliban that had a claim to authority no worse (and no better) than the Taliban.  The invasion of Grenada was made against a new government that had no legitimacy.  The invasion that seems least justifiable to me was the 1989 invasion of Panama to impose a regime change and arrest the President of Panama.  In my opinion, both the 2003 invasion of Iraq and the 1989 invasion of Panama were illegal under international law.  However, given the circumstances (of the governments in those nations being somewhat illegitimate due to the behavior of their leaders), there were extenuating circumstances.  Were I prosecuting George H.W. Bush for the invasion of Panama or George W. Bush for the invasion of Iraq, I’d hope to find them guilty, but only ask for a mild sentence.  I don’t see how those invasions were much worse than, for example, Lê Duẩn’s attack on Pol Pot’s regime in Cambodia or Julius Nyerere’s attack on Idi Amin’s regime in Uganda. Unfortunately, what came later in Iraq, with total American incompetence and the barbaric brutality of Iraqis directed against each other, resulted in hundreds of thousands of deaths, and likewise the war against the Taliban in Afghanistan that NATO and the Afghan government conducted sometimes killed more innocent civilians than the Taliban terrorists did. All that is to the enduring shame of the United States.

Putin’s invasion (or perhaps I should say the Putin-Lukashenko invasion) of Ukraine is not really like any of these invasions we’ve had since the end of World War II.

It resembles North Korea’s invasion of South Korea.  In the Korean case, both sides agreed that there was a single country of Korea, but the North felt the south had no legitimacy, and tried to take over by force.  In the case of Ukraine and Russia, the feeling in Ukraine that Ukraine is part of Russia is a fringe opinion.  Almost all Ukrainians believe themselves to be Ukrainians and citizens of an independent country (as in the Republic of China / Taiwan). Already some areas that were more dominated by Russians have left control of Kyiv and exist as parts of Russia or Russian protectorates.  Since the 2014 Russian invasions of Crimea and some eastern regions of Ukraine involved the liberation/capture/conquest of areas where Ukrainian identity was weak and Russian loyalties were strong, the resulting international sanctions were not especially harsh.  Russia had a point.  It should have offered some sort of arrangement to Kyiv to get Crimea back and tried to negotiate new mutually-agreed borders, but it didn’t. Had Kyiv allowed a referendum in the Crimea and some eastern provinces, perhaps the result would have been like the voting that led to the creation of South Sudan or the independence of East Timor, and a democratic process might have given us the same result we had after Russia’s invasion. The plebiscite in Crimea after Russian occupation was probably not a fair process, but there clearly was a widespread feeling of accommodation to the situation on the ground among the population in Crimea. 

There are similarities between Russia’s portrayal of its invasion of Ukraine with the USA’s justifications for its invasion of Panama, Iraq, and Grenada.  In those cases, the USA argued that the governments of the nation it was invading were either:
a) illegitimate;
b) threatening the USA or world peace; or
c) monstrous governments that were committing atrocities and should be stopped. Russia has made all these claims against Ukraine.  However, Ukraine held an election in 2019, and it was widely observed by independent outside observers, who described it as reasonably fair, and the current leader won a victory by a wide margin.  There are no serious or significant human rights abuses in Ukraine, and certainly far fewer than in Russia or Belarus. Ukraine is not threatening its neighbors. Putin’s claim that the war he has launched on Ukraine is defensive doesn’t have much merit.  The best point he can make is that someday Ukraine may join NATO, as it clearly wants to do, and NATO poses a threat to Russia.  But, NATO is a defensive alliance, and has only been engaged in two wars, and these were the Afghanistan civil war where it took the side against the Taliban because the Taliban nurtured and protected a terrorist group that attacked a NATO member, and the civil war in the former Yugoslavia, where the government in Belgrade had recently committed or supported war crimes, and was preparing to commit more atrocities in Kosovo. NATO would not attack Russia, as such an attack would trigger World War III and a possible nuclear holocaust, but also because NATO is not interested in conquering other countries; it’s a defensive treaty organization.  Russians who are fair-minded and rational and have read news and analysis from outside the government-sponsored Putin-controlled media within Russia are not at all threatened by NATO. 

What especially disgusts me are Russia’s useful idiots who explain how America is at fault.  They present many truthful and accurate accounts of America’s stupid foreign policy and lack of creativity and various horrible things America has done, which is all well and good, but they mix into this some of the lies that Putin uses to justify his war crimes. For example, some stupid leftists and greens claim that the 2014 revolution of dignity in Ukraine was a “coup” led by “neo-nazis” and funded by the United States.  It’s a typical lie with a germ of truth to it.  The Revolution of Dignity involved protestors being massacred by police who defended the Ukrainian political leadership, and the massacre was a key moment in mobilizing opposition to the leadership. The massacre was sparked by (probably) some shooting initiated by far-right nationalist militants.  And, far-right nationalist militants did take part in the revolution.  But, the revolution was a mass movement and the far right was only a fringe element of it (despite maybe being critical in sparking the massacre that catalyzed the opposition).  In recent elections in Ukraine, the far right nationalists and neo-Nazis had a party, and they received about 2% of the vote, which is significantly less than similar parties receive in Germany, Denmark, France, the UK, and so forth. Ukraine has been found to be among the least anti-semitic nation in Europe.  The 2019 election was legitimate. Neo-nazis aren’t running Ukraine.  When people mix in lies and half-truths to mislead, they undermine everything else they say.  So, when someone I know (Jill Stein, I’m talking about you) mixes in these lies with her many valid criticisms of American foreign policy and how American actions have led us to this point, they undermine the credibility of the left, the greens, and give people an excuse to reject all the valid and true things said about American failure in its diplomacy. 

Putin has pointed out that NATO and the USA have done several stupid things. As is clear now, America and Europe failed to set up a new system of peace and global security in which Russia could participate. We had an opportunity to create such a system to more vigorously prevent war and assure security, and we didn’t do it  But, complaining that democratic countries have failed to set up a global security system that can allow all nations to feel unthreatened by war cannot be a justification for demonstrating this blunder by threatening war and then invading a neighbor that was not threatening Russia. And, Russia could have taken the lead in creating a new global security order. 

The United Nations can’t prevent this sort of thing, mainly because five aggressor countries including a few of the most aggressive and violent (USA, Russia, and China) have veto power.  The United Nations needs a supplemental organization that can enforce peace.  There are already some proposals for mass alliances dedicated to democracy and peace.  These include the Copenhagen Charter for an Alliance of Democracies, The Coalition for a World Security Community of Democratic Nations, and the Alliance of Free Nations proposed by the Atlantic Council (not the right-wing Israeli so-called “Alliance of Free Nations”, which is something entirely different).  I won’t say anything against these ideas, because they are good in general. However, I am suggesting we need something with wider participation; something open to non-democratic countries, since it is they we most badly need to constrain, and assuring them of their security is one good way to constrain them.

Rather than just an alliance of many countries, I propose a compact of nearly all countries.  The principles would be simple and basic: the compact stands for:

1. No invasions of legitimate states
2. Even if a state is illegitimate, military interventions require broad global support and should have limited missions of preserving peace and allowing the establishment of a legitimate government
3. No threats of invasion or military action against legitimate states
4. All members of the compact will act as one, inflicting total economic, financial, and cultural isolation of any state, whether a member of the compact or not, that violates the principle of no invasions.
5. All members of the compact will also cease all economic, financial, or cultural exchange with any nation that breaks the embargo on a state that has invaded another.
6. All such embargoes will only end when an invasion or occupation has ended and government and military leaders who conducted the invasion or occupation have resigned or otherwise been replaced.
7. All military and government employees in states that are members of the compact promise or swear to uphold the two critical principles of the compact: 1) no invasions unless authorized on humanitarian or self-defensive grounds by the compact members states, and 2) no trading, financial exchanges, or cultural exchanges with any state that violates the “no invasions” principle or any state that defies the embargo on a state that has violated the “no invasions” principle.  These commitments command higher loyalty than any other claim on loyalty or obedience to legitimate authority.  In other words, loyalty to peace and obedience to the Peace Compact is the highest loyalty and authority in humanity.
8. the compact is only created to prevent war and invasions and attacks.  The compact cannot be expanded into other realms, promoting particular types of government, or anything outside its duties of determining whether a state has invaded another state, whether a state has a legitimate government, whether a state may be allowed to invade on humanitarian or self-defense grounds, whether a state is obeying the total embargo on trade, financial dealings, and cultural exchanges, whether a state has met criteria for no longer being identified as violating the principle of no invasion or the principle of obeying the total embargo against states that invade or states that continue exchanges with an invading state.

Such a compact would be open to even governments as odious as Russia, China (provided it gave up the threat to conquer Taiwan with military force), Nicaragua, Syria, Iran, North Korea (provided it explicitly rejected the idea of reunifying with South Korea through military force), and Afghanistan. It would offer security to all. 

The compact would be a supranational authority to which individuals owed allegiance in just two realms of activity: 1) don’t participate in invasions; and 2) don’t participate or allow participation in any trade with states that invade. In all other respects, nations and their citizens would retain full sovereignty.  

This compact has an advantage in that it is a nonviolent alliance.  No nation is obligated to come to the military assistance of a state that is attacked.  But, every nation must completely cut off and reject all trade with any nation that does attack. 

If such a compact had been created after the collapse of the Soviet Union, and had Russia been invited to participate, perhaps NATO would not have needed to expand, and perhaps the American defense budget would not need to have increased to $700+ billion.  After Putin is replaced, I hope something like this compact will be instituted.  It could even be created now. 

I believe most citizens of most nations, aside from the small fringe of absolute nationalistic warmongering types and ultra xenophobes, are already prepared for such a compact. The whole world was disgusted with the American-led invasion of Iraq.  The whole world is even more disgusted now with the invasion of Ukraine, which is orders of magnitude worse. People are angry, and they want the war stopped.  People are also upset that so many resources are devoted to warfare, and insufficient resources are allocated to better uses, such as achievement of the 17 Sustainable Development goals of Agenda 2030.

And, with this in mind, I wonder if Russia will ever really be able to conquer Ukraine and control it.  The United States and NATO were able to assist in the overthrow of the Taliban authorities in Afghanistan, and the American-led coalition was able to invade Iraq.  But, in both those countries, the governments were widely despised, and the systems of power and control were frequently corrupt.  In anti-democratic societies, loyalty is valued over merit, and so organizations, including the military, tend to be led by persons who are not especially talented or brilliant.  They may be brilliant and talented in sycophancy or how to conduct social manipulation to get into good graces of their superiors, but in actual pragmatic problem-solving, they will only get promoted if they can at least charm their superiors.  In democracies where citizens are still critical thinkers and are able to critique government performance and campaign for different governments if an administration is lackluster, merit will tend to be rewarded. 

Russia may have five or six times more soldiers who can participate in the invasion of Ukraine than there are Ukrainian soldiers to defend, but how good are Russian officers?  How talented is Russia’s general staff?  And, most importantly, what is the morale of the Russian army?  A large number of Russians, perhaps even a majority, do not want an invasion of the Ukraine.  A significant portion of the Russian military must have similar thoughts.  Let us suppose Russia can send half a million soldiers into Ukraine to conquer or occupy it, and 200,000 of those soldiers will be carrying guns or operating machinery that can destroy lives and property, and another 300,000 are in supporting roles, providing logistical support, transport, food, sanitation, intelligence, and so forth.  That is half a million Russian soldiers in Ukraine, and maybe 200,000 of those ready to kill Ukrainians.   As they occupy Ukraine, they find that the Ukrainians are not oppressed, and there has been no genocide.  Russian-speaking Ukrainians are almost as angry about the invasion as the Ukrainian-speaking Ukrainians.  Russian soldiers who notice this will perhaps experience cognitive dissonance.  “We were told that the Ukrainian government was committing genocide and was corrupt, but we find this isn’t true,” they will think.  When American soldiers were in Iraq and Afghanistan, they found that people really were oppressed by the governments of Saddam Hussain and the Taliban.  The Americans were not warmly welcomed, but they were attempting to help local people build up new infrastructure, and some people were willing to work with them.  What will Russian occupiers find in Ukraine?  Will anyone be glad or relieved that they are there?  Will they be trying to set up institutions that could possibly make life better for Ukrainians?  

No, the situations will be different. 

You cannot govern occupied territory from inside a tank or armored vehicle, or hiding in your military base. 

There are probably at least five million Ukrainian men, and probably over a million Ukrainian women, willing and ready to use weapons to kill occupying forces that intend to to impose a corrupt dictatorship on them.  The forces sent by Putin and Lukashenko will never be more than a million, and probably less than half a million, and only a fraction of those are the “front line” soldiers with guns.  They face five or six armed hostile Ukrainians per Russian occupier.  

The Ukrainians are surrounded by family and friends.  They know the land.  They can go to homes and shelters, surrounded by old friends and objects that convey reassurance.  The Russians are away from home.  They were told they were conducting exercises, and now they are invading a land toward which they have no animosity or hatred.  They have Ukrainian friends.  Now, they are participating in a war, and they can see around them the Ukrainians they are killing, and the damage of the bombs their military has dropped on Ukrainian homes.  What sort of morale will they have?

The Ukrainians can emphasize this.  They can try to recruit defections from the Russian military.  They can remind Russian soldiers that this invasion is a war crime, and soldiers have a duty to disobey illegal orders. In addition to the six million or so Ukrainian adults wiling to use weapons to kill occupying troops, most of the rest are ready to verbally insult the occupying forces.  They are ready at every moment to tell the Russian soldiers to go home.  “Fight Putin instead of us.  We were no threat to you; it is Putin who has committed the war crime and sent you here as murderers to kill innocent people before you yourself are killed.”  If every interaction the Russian soldiers have with Ukrainians is either harsh verbal abuse or else gunfire, how long will Russian units maintain their morale and fighting will? 

I opened this essay with Napoleon’s observation that morale counts three times as much as physical force.  The Russian forces have an advantage in weapons and soldiers more than three times over what the Ukrainians have, but once they are in Ukraine and occupying it and trying to maintain logistical lines and supplies, they are outnumbered three-to-one already by hostile and armed Ukrainians, and on top of that, their morale will surely be low, compared to the defiant spirit of the Ukrainians.

So, I do not expect the Russian invasion of Ukraine to be a success.  If Ukraine does not surrender and order all forces to give up and cease hostilities—if they continue to fight, they will win.  The Russians may take the major cities and try to install a government, or they might not even accomplish that.  But if they do win that sort of victory, their occupation is likely to be a disaster for them.  

A better outcome would be for Putin to agree to a cease-fire, and negotiate some sort of an agreement with Ukraine. After the first week of fighting, I expect Russia to have lost more lives of combat troops than the USA did in twenty years of conflict in Iraq and Afghanistan.  As Russians advance, I expect Ukrainians to cut off supply lines, isolate Russian advance units, and when those units run out of ammunition and fuel to run their equipment, they will disappear; surrendering, defecting, or dying.  Russia’s military is not as corrupt as the rest of its society, but it is still corrupt, and I do not think they will be nearly as effective or resourceful as Americans were in Iraq or Afghanistan (and I’m not at all impressed by American tactics or strategies in either place). If the rest of the world completely isolates Russia and uses sanctions harsher than any seen before (because this is an aggression unlike any seen since 1950), and Russia faces the military situation I’ve outlined here, I think someone might get rid of Putin.  

So, we need to think of what will happen in the post-Putin Russia, and what we can do to prevent this sort of thing from happening again.  That is why I think we should consider the sort of International compact I’ve described. 

A long-time China-watcher's thoughts on American diplomacy in East Asia

 Recently Juan Cole shared on his Informed Comment site an essay by Conn M. Hallinan about Biden’s foreign policy concerning China. The correct thesis of the essay was that the Biden administration’s top goal in diplomacy should be avoiding war with China, but Hallinan made made points that I thought misleading or ill-informed. This is a reaction to that article. 

Hallinan claims that a cold war with China would be impossible to win.  This assertion is highly debatable, but a cold war with China would be very destructive and is highly undesirable, so I see no point in nit-picking this claim, as I’m in agreement the main point that we ought to be trying to avoid a cold war with China. China is fully integrated into the world economy, and could play a positive role in trade and exchanges to help avert a climate catastrophe and promote the sort of economic development that would reduce global poverty, and American diplomacy ought to be structured toward achieving that sort of result.

A human rights festival in Taipei, June 4th of 2019

Hallinan claims that the Trump administration created a toxic atmosphere by targeting the Chinese Community Party (CCP) as the worldwide enemy of the United States. This is a one-sided half-truth.  The Chinese Communist Party bears much of the responsibility for any deterioration in relations with the United States. And, while the CCP is not really a “worldwide enemy” of the USA, under the current leadership of Xi Jinping, China has been behaving as a belligerent adversary, perhaps a step or two below that of an actual “enemy” in several cases. And, yes, the Trump administration used rhetoric that was hostile and toxic, and so that lack of diplomatic acumen was a disastrous part of the Trump Administration’s mishandling of our nation’s relationship with China.

Hallinan claims that Mike Pompeo “essentially called for regime change” in China (he is getting that idea from Chas Freeman), and I would call that accusation unfair.  Hallinan offers readers a link to his source for making this claim, where any reader can see what Pompeo actually said, which was: “We must also engage and empower the Chinese people — a dynamic, freedom-loving people who are completely distinct from the Chinese Communist Party.”  So, while Pompeo was saying our opposition to the current incarnation of the CCP must be tough, he was distinguishing this from our attitude towards the Chinese people, and pointing out that the Chinese people cannot and should not be blamed for whatever horrors the CCP commits. That doesn’t seem like a suggestion that there should be a “fight to the death” with the CCP, but that is how Hallinan (mis)characterizes Pompeo’s actual statement. To be fair to Hallinan, he seems to draw much of his understanding of the situation with China from the opinions of Chas Freeman, who has also accused Pompeo of calling for “regime change” in China. Freeman is one of the most intelligent and well-informed former diplomats who knows and understands China, and his basic premise is that our goal with China must be to make it feel secure and unthreatened, and I agree with that. With our shared premise about the importance of America taking a non-threatening approach to China, it would indeed be disastrous if American diplomats or the president did call for regime change in China, but I am not aware that this was something that the Trump administration ever did, although no doubt that administration was crazy enough to have done so. The leadership in China, however, has became extraordinarily paranoid, and leadership in the Chinese diplomatic corps may well have perceived that the USA wanted and was seeking regime change in China, whether or not that fear had any grounding in fact.

This brings up the question of whether the USA should try to deal with existing ruling powers in nations, or work to change those ruling powers.  Would it be better for the USA if the Chinese Communist Party was suddenly rejected by a coalition of dissatisfied party leaders and People’s Liberation Army generals who ordered some sort of new regime, or is it more desirable for the USA if the CCP evolves into a more benevolent party that respects human rights and ceases to threaten murderous violence against the citizens and regimes of American client states and protectorates in Asia? The CCP has done a fairly effective job of brainwashing the Chinese population into a state where many Chinese hold an ugly nationalism with a sort of Han ethnicity chauvinism and militaristic jingoism that would be extremely dangerous if China suddenly became a democracy.  I also know enough about Chinese history to fear any sort of political or military chaos in China such as it experienced in the 1920s to 1949, or at the end of the Ming Dynasty, or the ends of the other dynasties. I am in favor helping the CCP evolve to a point where it respects human rights and is committed to the United Nations’ ideals of peace, and I see no plausible and desirable alternative to that. 

The CCP is a vast organization with millions of members, and I know that it has in its ranks many idealistic and caring people who enthusiastically want to improve their country and maintain friendly relations with all peoples (I have several dear friends who are active members of the Chinese Communist Party), and no doubt there are many nationalistic Chinese in the CCP who stupidly fantasize of world domination and winning a victory in a war with the USA. America has its counterparts to these types.  The Chinese CCP has done some very horrible things in the past few decades (cultural genocide against ethnic minorities in Xinjiang and Tibet, violating international law in the Spratley Islands, threatening war with Taiwan, initiating wars of border expansion against Vietnam and India, supporting the attempt of North Korea to conquer South Korea and consistently lying to the Chinese people about the nature of the Korean conflict, murderous crack-downs on non-violent protesters, violating its treaty promises to the UK in Hong Kong, etc.) and done a few good things as well (successfully reduced poverty, built a massive infrastructure to improve the lives of common Chinese citizens, etc.).  I don’t see value in arguing over how the CCP’s bad behavior compares to American atrocities, except to note that both sides have plenty to be ashamed of (among American atrocities: bombing neutral Cambodia during the war with North Vietnam, “strategic bombing”—otherwise known as the indiscriminate killing of civilians—in North Vietnam, invading and occupying Iraq, sponsoring murderous terrorists fighting legitimate governments, sponsoring violent and bloody overthrowing of democratically elected governments, supporting brutal governments that treated their citizenry in ways that were worse than what China has done internally since the 1980s, etc.). The USA and China both have plenty of blood on their hands, and the Democrats and Republicans of our country have done much evil, which can be compared to the evil done by the CCP.  The Chinese government may freely criticize America’s misbehavior, and I welcome their criticism, because the fact that an actor is imperfect has no logical bearing on the merit of  their arguments against the errors of others. The American government likewise may criticize China’s flaws, and should do so, provided such criticisms don’t make matters worse.

The problem is, under Xi Jinping, the CCP has been doing a lot more misbehaving, and so the tone of criticism has naturally been getting stronger. The rift between the governments in Washington and Beijing should not be entirely blamed on the general stupidity and incompetence of President Trump’s diplomacy. China’s behavior would have caused some degree of distancing between the two governments even under a competent and wise administration in Washington.

Hallinan points out that people in China and the United States have lower opinions of each other’s countries.  He links to an article showing that in America only 26% have a favorable view of China, whereas 66% view it negatively. Is such a massive shift in public opinion plausibly the result of Trump’s racist and antagonistic anti-Chinese rhetoric, or might actual behaviors of the Chinese government or Chinese people had something to do with it? Look at the poll Hallinan’s source referred to, and you find that the things that Americans identify as the three most significant problems for the U.S. in its relationship with China are: 1) China’s impact on the global environment; 2) Cyberattacks from China; and 3) China’s policies on human rights.  I don’t recall any of these three things being emphasized by Trump.  Trump’s main concerns seemed to be the USA's trade deficits with China or loss of U.S. jobs to China, and those are identified as “problems” by 5 percentage points to 12 percentage points fewer Americans than the three top problems I’ve mentioned. Also, the growth in strong negative feelings against China are a global phenomena, not merely an American phenomenon.  Polling by the same Pew Charitable Trust that gave us the evidence that Americans distrust China and see its government as a problem tell us that unfavorable views of China are held by 81% of Australians, 86% of Japanese, 73% of Spaniards, 75% of South Koreans, 85% of French, 73% of Canadians, and so forth.  Since only 66% of Americans have an unfavorable view of China, it hardly makes sense to argue that Trump had much to do with making Americans more distrustful or hostile towards China. On the contrary, Americans seem less hostile toward China compared with the views of citizens in other developed countries. 

And what of the views of Chinese towards America?  In China, the CCP controls the media narrative, and aside form a small minority of technically-savvy Chinese who can use VPN to look at media outside the CCP’s firewall isolating Chinese people from free exchange of facts and opinion on the internet, most people in China only know what the CCP lets them know.  So, if Chinese opinion toward foreigners and foreign nations is getting more hostile, and the Chinese sense of self is becoming more nationalistic or belligerently chauvinistic, that probably has something to do with the way the CCP is presenting the world to the population they rule.  

Hallinan offers a paragraph that is quite accurate and good, and provides readers with the best point in his essay:

Most Chinese think the U.S. is determined to isolate their country, surround it with hostile allies, and prevent it from becoming a world power. Many Americans think China is an authoritarian bully that has robbed them of well-paying industrial jobs. There is a certain amount of truth in both viewpoints. The trick will be how to negotiate a way through some genuine differences.

Yes, there are genuine differences, and negotiating through those differences is what we must do. The emphasis here is on negotiating as opposed to bullying or threatening as those approaches, with their reliance on American military force, are not good options.

Hallinan has an academic background in anthropology, rather than history, so his historical statements are not always perfectly true.  The century from 1839 to 1939 is (rightly, I think) presented as China’s century of humiliation, when it was mistreated by foreign powers, but Hallinan describes America as one of the colonial powers (like the UK, France, Japan, and Germany) that fought wars and seized ports from China in those years. The USA did engage in the extortionate punitive treatment of the Qing government after the Qing had supported anti-foreigner atrocities committed by the Boxers. Mark Twain wrote a brilliant satirical essay about this, “To the Person Sitting in Darkness,” which is my favorite anti-imperialism essay. But in general, the USA had a different sort of relationship with China compared to those other powers, and asked China to give the USA the same trading advantages it gave to any other foreign power. The USA did not attack China or seize ports as the other imperial powers did.  The relationship was also colored by the fact that many Chinese lived in the United States, and there was a long and close relationship between some American merchant capitalists from New England and some Chinese tycoons of Guangzhou. America really did have a “special” relationship with China that was significantly different from the relations of the other imperialist powers. The CCP may have tried to erase this fact from the way it tells historical narratives to its populace, and Hallinan may only care about what Chinese believe about history, rather than historical facts, since it is perceptions of history rather than actual history that is most likely to condition how people and governments behave. 

Hallinan asserts that “the Chinese have never forgotten those dark years” and I think he is only right in the literal sense the those years weren’t erased from history books.  The Chinese intellectual classes of the 1920s and 1930s had a variety of opinions about the diplomacy and conflict between the Qing Court and the Western Powers and Japan. The Nationalist Party that occupied and brutalized the people of Taiwan certainly downplayed the century of humiliation, and the CCP used to present a historical narrative about the century of humiliation that fit that era into a standard Marxist history about capitalist powers seeking to expand markets and grab resources, placing China’s position as one similar to that of Africa, India, or Latin America.  It has only been in the past two or three decades that the historical narratives about the century of humiliation have been associated with a strong nationalist sense of resentment and hostility toward the USA and European powers. That is to say, the Chinese were always angry about foreign powers pushing them around, and the weakness and inability of the Qing and Republican governments to successfully face the bullying and aggression of Japanese and European powers made many Chinese extremely xenophobic. However, until this century, the rhetoric of the Chinese Marxists who complained about foreign dominance in China used to fit into a framework that did not suggest that the Chinese people were particularly aggrieved or disadvantaged compared to other peoples of less developed nations. International worker solidarity and class consciousness was favored, and explanatory models fit into a Marxist universalism that (correctly) blamed capitalist classes in foreign lands and their allied elites in China for exploiting poor people and eroding local sovereignty as part of a universal political and economic unfolding of history. In this century, the Chinese-generated narratives have changed toward a more nationalistic and ethnocentric story emphasizing the exploitation of China and the victimization of the Chinese.  I know a bit about this because I audited a course in Chinese historiography as a doctoral student in the mid-1990s, and I’ve followed with interest the way Chinese and Taiwanese historians present their history to their publics ever since. The emphasis on China’s humiliation and the need to rise and be strong to prevent any further insults to the Chinese sense of pride and worth is a fairly new thing.  It was certainly not a central narrative in Chinese history in the 1970s or 1980s, but it does seem to be a major emphasis of China’s sense of its world situation in the past decade or two.  That is a regrettable and dangerous change. 

Hallinan claims that the Chinese have never threatened to interdict trade in the South China Sea. This is a debatable point. In 2020 the Chinese coast guard and navy have attacked and killed Vietnamese fishermen near the Parcel Islands, and in 2019 the Chinese sank a Philippines’ boat off Reed Bank and left 22 Fishermen floating in the ocean until they were picked up by a Vietnamese boat. Sinking and killing fishermen in international waters seems more serious than merely “threatening” to interdict trade.  And, of course, the authorities in Beijing have threatened to interdict trade with Taiwan, which lies at the northern boundary of the South China Sea.  When Hallinan then characterizes the Chinese authorities as being essentially non-belligerent and peaceful by pretending that they have never threatened to interdict trade in the South China Sea, he is doing so to set up Chinese behavior in contrast to American behavior, and he mentions the Malabar war games and the American strategy of “Air Sea Battle” since those do aim to prepare for cutting off Chinese trade through the South Chinese Sea. But he fails to consider under what circumstances the United States would try to cut off Chinese trade.  The only plausible circumstances in which the USA would do that would be if China were involved in aggressive wars against Korea, Japan, or Taiwan, the three American protectorates or client states in East Asia. If China would renounce the use of force or stop claiming it had a right to invade and conquer Taiwan, and if it would stop supporting the belligerent regime in North Korea, America and other powers in Asia could stop preparing to cut off China’s sea trade.  Any comment on the allegedly hostile American preparation to contain China should, in fairness, mention what China does in its military war games and diplomatic rhetoric to prepare for an attack on Taiwan, Japan, and South Korea.

Hallinan is right that the West needs to be sensitive to China’s insecurities.  The main point he is making is correct as far as that goes. Yet, his presentation is ignoring China’s actual violent belligerence in the South China Sea, and its threats to use violence against its East Asian neighbors, and that is an error.

I think Hallinan is largely informed by the opinions of Chas Freeman, who was one of three American translators during Nixon’s famous 1972 visit to China.  Freeman is a brilliant diplomat, well-connected in China and Taiwan, who expresses many opinions about America’s foreign policy, and I agree with the vast majority of what he says.  Chas Freeman is very good at expressing the Chinese view of the situation related to Taiwan (his December 17, 2020 talk “War with China over Taiwan” will give you an idea of how Freeman sees the situation). Usually when Freeman expresses opinions I disagree with, I perceive he has become so empathetically understanding of the CCP’s view (which is a good trait in a diplomat) that he has taken the Chinese view as his own (which is the source of my disagreement with him, I think).  As Hallinan and Freeman see the situation, the U.S. has abrogated agreements our diplomats and leaders made with China in 1972, 1978, 1979, and 1982.  China also made some assurances in those agreements, and Hallinan and Freeman emphasize how American foreign policy has violated the spirit of those agreements without saying much about how the Chinese have violated those agreements. I assume Freeman doesn’t examine those because he is interested in realpolitik and considers the only important issue is how China perceives the situation, rather than what the situation actually is or was. For example, China believes that there has been a consensus among China, the USA, and Taiwan that there is only one China and there cannot be a two states for one country solution to the problem of the “division” of China. When the KMT ruled Taiwan as a dictatorship and an occupying Chinese regime bullying the local Taiwanese population, the KMT did agree with China on that view, and it was at that time (the 1960s and 1970s) that Chas Freeman came to understand Taiwan and China, and make his friendships with elites and leadership in both countries. The KMT is no longer in power in Taiwan, and when they are in power they do not rule in a dictatorship, and so the government in Taiwan has changed, and no longer represents a Chinese government-in-exile that seeks reunification with the Chinese motherland. 

Hallinan suggests that both countries should dial down the rhetoric and de-escalate their military deployments.  That is actually good advice. He also suggests that Beijing should give up its claims in the South China Sea and disarm the bases it has illegally established there.  That is also good advice, although there are other solutions that would not require this (for example, setting up the Spratleys and Parcel Islands in a situation like that of Andorra where multiple countries hold a form of joint-sovereignty over a region, or share mutual responsibilities for protecting a common resource).  He should also suggest that China re-affirm its agreements made in 1979 and 1982 that it will not seek to reunify with Taiwan through violent force.  China has broken its treaty with the UK about the treatment of institutions and the population in Hong Kong. China’s threat to violently attack and murder thousands of Taiwanese for the frivolous sake of national pride and unity, to conquer Taiwan, also conflicts with the understandings reached with the United States in 1979 and 1982.

One thing that might help the situation with Taiwan and China is for the Taiwanese government to make several suggestions for how reunification could be achieved on Taiwan’s terms.  These could be creative solutions, and there ought to be several suggestions.  One approach would be to suggest forms of reunion in which the two states became allies and partners in a system of equal power-sharing, where any changes in the relationship could be vetoed by either side. There could also be clauses in the reunification treaty that would allow either side to become independent from the other if there was a violation of some agreement.  For example, each side might keep its own military, and if either side used its military in the other’s territory for purposes other than humanitarian relief or coordinated mutual defense, that would trigger the dissolution of the unified state. Some sort of a confederation solution might be found that finds a middle-ground between the unification of the American states into the USA (too much unification for Taiwan) and the confederation of the members of the European Union (not enough unification for China).  Taiwan needs to make these sorts of suggestions and engage with China in discussions about the sort of reunification that would appeal to the Taiwanese (reunifications in which there would be no possibility of the CCP or PLA eroding the rights or democratic institutions in Taiwan as they have done in Hong Kong) in order to take from the CCP any sort of excuse for launching the terrible efforts of a violent conquest of Taiwan. A treaty of confederation between Taiwan and the PRC might begin with an idealistic preamble pointing out the advantages of nations and peoples binding their countries together close enough to make violent conflict unthinkable, but allowing local sovereignty and self-determination so that large nations cannot interfere in smaller nations, extolling the virtue of diverse approaches to the basic problems of governance and securing stability, justice, and flourishing civilizations.   Humanity needs to try out many different policies and approaches and seek out methods that seem most desirable for creating flourishing and stable societies, but humanity also needs governments to surrender a certain amount of sovereignty in order to prevent inter-state warfare. A treating binding Taiwan and China together could offer the confederation as a model  for potential unification of Asia, and then eventually unification of the planet. References could be made to the successes of the European Union, NATO, and various long-standing mutual defense alliances and peaceful neighborly relations among nations. If Taiwan is continuously suggesting such agreements, and China is always rejecting them, this would create a better situation than one in which Taiwan seems to only want to follow a path toward independence without any dialog with China.

The dream of Taiwan simply being a normal independent country like Japan or South Korea is not plausible because the CCP will not accept that, and neither Taiwan nor the USA can afford a war with China.  The CCP’s dream of conquering Taiwan or taking over Taiwan the way it took over Hong Kong is equally impossible, because the people of Taiwan do not want it and would violently resist, and the United States cannot afford to have a client state or protectorate forcibly conquered by China.  There are other solutions between those two unacceptable extremes. We do not need to wait for China to give up its claims to have a right to conquer Taiwan (the Chinese use the euphemism “reunification”), or persuade it to do so. Exploring other solutions that could be acceptable to Taiwanese, and offering such solutions to the CCP on a regular basis, would at least get the leadership of the CCP to ponder some sort of reunification that would give the Beijing government the minimum it desires (the ability to claim it has successfully reunified China and greater security of its territorial integrity) while not actually giving it any significant power to dominate or interfere in Taiwanese sovereignty. The Chinese are naturally pragmatic, and if discussion and diplomacy begins in earnest toward some sort of agreement for a confederation, the Taiwanese and Americans might have a chance of waiting out the current belligerent Xi Jinping regime and getting a more pragmatic and conciliatory successor regime after Xi to negotiate in good faith and accept some accommodation with Taiwan. 

Protestors outside the Executive Assembly during Taipei’s Sunflower Protest Movement, 2014

While China continues to be belligerent and violent in its pursuit of territorial expansion in the South China Sea and dominance of Asia, it is necessary for the United States to cooperate with other Asian powers to constrain and blunt this aggression, but American diplomacy cannot merely take a role as China’s opposition or enemy in Asia. On the contrary, American diplomacy requires a break-through in which China can see its self-interest furthered through a friendly partnership with its Asian neighbors and the United States, and this requires America and its friends in Asia to offer China various alternatives to the present highly confrontational situation in East Asia, and especially across the Formosan Straits.  

Another approach to China would be some sort of an entente or mutual defense alliance among the major Asian players aside from China. The USA would need to put together this agreement among Japan, Taiwan, the USA, Singapore, Malaysia, the Philippines, Vietnam, Australia, New Zealand, Thailand, Indonesia, and India, with all agreeing that China has disputes with some of these nations (Vietnam, Indonesia, Taiwan, and Philippines) about sovereignty in the Spratley and Parcel Islands, about borders (with India and Vietnam, and Japan), and about sovereignty (with Taiwan). The nations would commit to an intention to see all these disputes with China resolved peacefully in ways that are acceptable to China and to all the partners.  The partners would agree that violent military confrontation by China to force its way in any of these disputes would be unacceptable, and would be met by a unified defensive action. It would not be good to only agree to defend against Chinese aggression; it would be necessary for the entente agreement to recognize that these disputes create insecurity, and everyone wants to see these disputes resolved, and the only plausible resolution of these disputes is to see solutions in which both China and its neighbors peacefully find compromise and agreement.

Whatever happens in Asian international relations, two principles ought to be recognized by the United States and incorporated into its diplomatic posture.  The first of these is that American values recognize the philosophical principle that all lives are of equal value, and given the equal value of human lives, the largest Asian nations of China and India, and to a lesser extent Indonesia, have something like a “natural” right to take a leadership role in the international order in Asia. This needs to be acknowledged to assure China that the USA accepts its role as a natural leader in Asia (but not “the” natural leader).  The United States would thus recognize that China has a certain degree of responsibility and some degree of an inherent right to sometimes lead the diplomatic fashioning of a peaceful order in Asia. The corollary principle that must accompany this stance based on the equal value of human life is the principle that each nation has a right to independent sovereignty and freedom from unwanted interference from larger states.  Thus, states with smaller populations, such as Mongolia, Timor-Leste, and Bhutan have a right to security where they are free from aggression and dominance by their larger neighbors, and whatever order of international relations emerges must protect the independence and sovereignty of smaller states. The United States also ought to emphasize that the principles of the United Nations Charter, the Universal Declaration of Human Rights, the Sustainable Development Goals that emerged from the United Nations Conference on Sustainable Development in Rio de Janeiro in 2012,  the goals of the COP21 Paris Climate Conference and the Sendai Framework for Disaster Risk Reduction express the shared goals of all governments, and central to all these agreements are the  principles that governments have a duty to improve the lives of people and protect humanity from the horrors of war. And, thus, all states should join to secure peace and stop any power from using warfare as a tool to settle disputes. This can be emphasized as a way of demonstrating that the same principles that guide American diplomacy to prevent the CCP from using military conquest to subjugate the peoples of Taiwan or take control over islands in the South China sea that actually belong to Vietnam, Indonesia, and the Philippines also guide American diplomacy to honor China’s right to leadership and power in international relations.

What do I know about Asia? I have visited and briefly lived in China four times. I visited friends there in the summer of 1992 for not quite two weeks, studied Chinese in Xi’an in the summer of 1994 for about seven weeks, visited Shanghai for the World Fair for a bit less than two weeks in 2010, and was a short-term exchange scholar at Heilongjiang University in Harbin for nearly two months in the late spring of 2012.  I have also lived in Taiwan or visited it for extended periods off an on since 1990, accumulating about four years of my life living in Taiwan. I have many friendships with Chinese from a variety of walks of life, and I remain in contact with about a dozen Chinese citizens, all of whom I dearly cherish as friends. I have been married to a woman from Taiwan for nearly 30 years, and count Taiwanese citizens among my closest and most intimate friends.  I have had a scholarly interest in China since the early 1980s in my adolescence, and over the past 40 years I have read scores of scholarly and popular books and articles on many aspects of Chinese history and society.  I’m not a China expert, but I’m fairly well-informed about China, and very well informed about Taiwan. My Chinese language skills are intermediate, and I’m working on building them up toward fluency.

The legal issues in American involvement with UN action in Libya

Today I’m writing about the United Nations intervention in Libya. It seems to me that many people are opposed to the participation of the United States in this Libyan action. Evidently there have been opinion polls showing only about half of Americans support the use of American military in attacking Libyan air defenses and military equipment and soldiers. One point of this oppositions seems to hold there is something illegal in an American president ordering the use of American military force in acts of war (not declarations of war) without first getting consent from Congress.  

There are a few ways that American military forces can become engaged in acts of war.  

The first method, a method that has been used five times in American history, is for Congress to declare war.  This is contained in Article I, Section 8, Clause 11 of the Constitution. We know from records of the Constitutional Convention (and various other records illuminating the process of drafting the Constitution) that “declare” was the verb chosen because people (e.g., James Madison and Elbridge Gerry) wanted the president to have the ability (as Commander and Chief of American armed forces) to act suddenly to repel attacks without waiting for Congress to authorize defensive military action. The American Congress has declared war on the United Kingdom (1812), Mexico (1846), Spain (1898), Germany and Austria-Hungary (1917), and Japan, Germany, Italy, Bulgaria, Hungary, and Romania (1941 & 1942). 

The second method, a method that was modified by various War Powers Resolutions (see chapter 33 of Title 50 of the United States Code), allows the President to engage in hostilities short of war with the approval of Congress. Under the current law, the President must consult with Congress before introducing forces into hostilities, must report to the Speaker of the House of Representatives and President pro tempore of the Senate a report about American armed forces engagement in hostilities, and must get authorization from Congress in order to continue military action beyond 60 days (see Title 50, Chapter 33, Section 1544).

A third method exists under the Supremacy Clause of the Constitution (Article VI, paragraph 2), which states that the Constitution and federal laws and treaties have the force of law and have supremacy over state laws. This part of the Constitution effectively means that when the Congress ratifies a treaty signed by the President, the treaty becomes part of American law.  For example, the United Nations Charter, which was signed by President Harry Truman and was ratified by the American Congress (Senate) on July 28th of 1945, has the force of law in the United States, just as much as the War Powers Act of 1973 (Title 50, Chapter 33, Sections 1541-1548 of the United States Code).  If a treaty (for example, a mutual defense treaty, as the United States has with NATO partners) says that the United States will commit to the military defense of some other country when that country is attacked, and then that country is attacked, the United States is legally obliged to provide for that country’s defense.  

It is not entirely clear whether a military act conducted because of legal implications of treaty obligations must also be subjected to the requirements of Chapter 33 of the United States Code (War Powers Act). For instance, if Congress refused to authorize military action, but the military action was required by a treaty obligation, I suppose the Supreme Court would need to decide whether the Supremacy Clause authorized the President to continue the use of military force despite the lack of approval from Congress, as required by the War Powers Act.  My sense is that treaties probably take the force of federal law with supremacy over federal law, since Congress or the President can rescind or withdraw from a treaty, and if they haven’t done so, this implies that the particulars of the treaty remain in force and have not been repudiated. Also, in order for a nation to have the ability to even enter into treaties it is a fundamental requirement that governments be able to enforce or hold to treaty obligations. So if American law allowed Congress to cancel treaty obligations by simply passing laws that had supremacy over treaties, without rescinding or withdrawing from the treaties, that would pretty much ruin the American government’s ability to even make treaties, as there would be no credibility in assurances that the American government would hold to their treaty obligations.

Another point here is that a treaty may request or permit military actions without requiring military action.  If the United Nations Security Council passes a resolution asking all United Nations member nations to unite in carrying out whatever is necessary to effect the destruction of some military force that threatens civilians, this resolution may not impose on the President the same sort of obligation to act that a mutual defense treaty does.  So, if a treaty puts some obligation on a President to do something, but does not specifically require the President to commit armed forces to acts of war or military hostilities, then there arises a question of whether the request can be used to authorize the use of American forces under treaty obligations and the Supremacy clause, or whether the lack of a specific obligation for military action makes American action discretionary, in which case a President would perhaps be more likely need to follow the War Powers Act. 

So now, let’s look at some facts here.  First of all, the Supremacy Clause in the Constitution has had plenty of history in the Supreme Court, and many state laws have been overturned because they conflicted with Treaty rights.  Here are some examples of cases in which treaties were in conflict with state or local laws and ordinances, and the Supreme Court found that the rules in the treaties voided state laws or local ordinances:

Ware v Hylton (1796) and
Hopkirk v. Bell (1807) and
Foster v. Neilson (1829) and
the Head Money Cases (1884) and
Geofroy v Riggs (1890) and
Nielsen v. Johnson (1929) and
Kolovrat v. Oregon (1961)

But what about contradictions between a federal law and a treaty? Or what about when there are two different processes to follow, one described in a federal law and another described in a treaty?  I am not aware of any Supreme Court decisions on these questions. I’m confident that a contradiction between a federal law and a treaty would be resolved in favor of the treaty, because while older laws my be nullified or modified by later laws, treaties are nullified or modified by diplomatic actions and the process of withdrawing from a treaty or rescinding it or repudiating it. As to the the situation where a treaty allows one sort of process and a federal law allows a different process, for committing troops to some hostile activities, for example, I’m not sure what the Supreme Court would decide. I think there is a good case that a President ought to follow both a treaty and a federal law when there was no contradiction between the two.  I also think that because it’s very important that an American government have credibility in international diplomacy, a good case can be made that processes or conditions given in treaties would have primacy over federal laws. 

Let’s consider the source documents.  First of all, here is the U.S. Constitution. Article VI, paragraph 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So, Treaties made under the Authority of the United States are the supreme Law of the Land. Yes, but so are Laws of the United States. 

Now, let’s consider the United Nations Charter.  It was passed by the Senate on July 28, 1945, by a vote of 89-2.  President Truman had already signed the Charter, and the UN Charter was signed by 50 nations in San Francisco on June 26 of 1945.  By the provisions of the United Nations Charter, it came into force on October 24, 1945 (after the five permanent members had all ratified it). The United States has not withdrawn from the United Nations, and has not repudiated or rescinded its charter.

Next, we should consider United Nations Charter, especially Articles 24 and 42, which bear on the use of force.  

Here is Chapter V, Article 24, sections 1 and 2, and also Article 25.

Article 24 (1):  In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 24 (2):  In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

Article 25:  The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

This seems to me to tell us that, by American law (the Charter has the force of law according to the American Constitution and the fact that we have signed and ratified the U.N. Charter), that America (and about 190 other countries) have given the Security Council primary responsibility for maintaining international peace and security, and the Security Council acts on behalf of the United States when it carries out its duties. This implies, to me at least, that if the United Nations Security Council says that such-and-such is required for international security, it’s the same thing as if the American Congress has said that such-and-such is required.  That is, the U.N. Security Council can act on behalf of the United States (our Congress and President) in carrying out duties to maintain international peace and security.

Next, let’s examine articles 41 and 42 (in Chapter VII) of the United Nations charter:

Article 41:  The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42:  Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Following Article 42 are eight more articles (Articles 43-50) related to the use of force. Among these are Article 49: 

The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.

So, the United Nations Charter does allow the Security Council to decide that military action (“other operations by air, sea, or land forces...”) should be taken. It also provides for the United States to join in carrying out such measures. The Charter also makes the Security Council an entity that acts on behalf of the United States.  So, it seems clear to me that acts of the Security Council are legitimate and legal means for the United States President to commit American forces to hostilities. 

 Has the United Nations Security Council authorized the use of force or made some sort of a call that would authorize the U.S. President to commit armed forces to hostile action in Libya?  Yes, Resolution 1973 made two demands (complete end to violence and all attacks against, and abuses of, civilians... and Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law...).  Security Council Resolution 1973 also made a decision to establish a flight ban over Libya.  And then it authorized member states to take all necessary measures to enforce this. Here is point 4 of the resolution:

Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council;

So, it seems pretty clear to me that the President can send military forces to Libya, but he can’t place an occupation force there. He is authorized to do this by Security Council Resolution 1973 and the United Nations Charter and the second paragraph of Article VI in the U.S. Constitution. It seems likely to me that this authorization is the only authorization he needs, given the language of the United Nations Charter, and that Chapter 33 of Title 50 of the United States Code (the War Powers Act) does not take precedence over the United Nations Charter.  However, in keeping with the spirit of the Constitution and Chapter 33 of Title 50, I think the president ought to observe the procedures and obligations of the War Powers Act. The Senate’s ratification of the U.N. Charter back in 1945 already authorizes this particular application of force in Libya, and also addresses the concerns that motivated the authors of our Constitution to give war-declaring powers to Congress (they were concerned with the history of despots and monarchs declaring war and claiming wars were necessary for their nations, when in fact the wars were not necessary, and were actually quite costly and wasteful, and often immoral as well).  

My understanding is that the War Powers Act applies to American unilateral military action or joint military action with international allies when that action is not specifically authorized by ratified treaties.  The War Powers Act ought not apply in cases of American military action authorized by ratified treaties, as for example in cases where the United Nations Security Council has authorized the use of armed forces, or when one of our NATO allies has been attacked.  Still, there is no harm in observing the requirements of the War Powers Act, and there is probably great benefit in doing so, so I think the Obama administration ought to go along with the rules about notification and consultation, and perhaps seek some sort of a Congressional endorsement of any prolonged (more than 60 days) military involvement.  

Incidentally, someone was saying that too much effort has gone into inventing and deploying weapons, and not enough effort has gone into figuring out a way to have peace.  They were speaking about the conflict in Libya, but making a general observation about the allocation of resources in this world.  I agree, but I wanted to point out that there are already some very satisfactory suggestions and institutions for establishing peace.  The person asked about a blueprint for peace.  Here was my response:

A blueprint for peace? Have you read the charter of the United Nations? Or how about the writings of peace activists, visionaries, and spiritual leaders such as ‘Abdu’l-Baha, Mohandas Gandhi, Martin Luther King, Malread Maguire, etc.? Or speeches of various winners of the Nobel Peace Prize? There are many blueprints for peace. It’s up to us to build the structures outlined in these blueprints.