Investment arbitration is a growing and important area of law, in which states and companies often find themselves involved in. In recognition of the one year anniversary of Investment Claims moving to a new platform, we have created a quiz we hope will test your knowledge of arbitration law and multilateral treaties. Good luck!
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By Elvin Lim
The Obama administration is having a hard time responding to critics who disagree with its decision to intervene in Libya. Some on the Left do not want another war; while some on the Right don’t want a multilateral approach to war focussed on humanitarian intervention and one authorized by the UN. Both sides, of course, are using a “separation of powers” line, charging that the President failed to seek congressional approval, but the procedural objection disguises a substantive disagreement. The fact is very few politicians have ever really cared about the erosion of congressional authority (not that they shouldn’t) since the last war Congress declared was 60 years ago during World War II.
And there lies the crux of the matter. It is not that the President has clearly made a blunder, whether in the timing, method, or articulation of our aims in Libya, for all are up for debate and indeed are being debated. It is just that war is not the sort of thing that we, and most democracies, can easily agree on. (And that is why kings, not presidents in our inquisitive electronic age, have been most successful in using prerogative and secrecy to wage war.)
What is worse is that our agreement on war is so rare that we have romanticized the one war where we came closest to agreeing on, which of course has added to more disagreement because we have subsequently held ourselves to such impossible standards. This is our collective cognitive illusion that all wars should be like World War II, ostensibly the last war in which America took the right moral stance, where we were both unilateral and multilateral, defensive and yet also aggressive, and on which, at least after Pearl Harbor, there was relatively little partisan disagreement. The romanticization of this unusual war has only made the conduct of foreign policy more, not less, difficult in the decades since.
Democracies are rarely in consensus about the conduct of war, which is why we should start them with abundant caution. One reason why we have had a long and less than impressive list of foreign misadventures since the middle of the last century and at least since Vietnam is that we have tried too long, and without any success, to prove to ourselves that World War II was the war to guide all future wars. As it turns out, that war was the exception, not the rule. Yet both the Obama administration and its critics share such a missionary zeal about how foreign affairs should be conducted, respectively, in their anti-totalitarian aspirations, their commitment to procedural orthodoxy, and moral leadership.
Our present disagreement about how to deal with Libya comes from uncertainty, the fact that no one holds a crystal ball. The problem with military intervention is that interveners must know which domestic party to side with, and some appreciation of what the end game should look like. But while we suspect that Muammar Qaddafi isn’t the best bet for democracy in Libya, no one can be sure that the rebel government in Benghazi would do any better. By definition, interveners guide the outcome of domestic strife, changing the timing, manner, and outcome of that which would otherwise have organically occurred. This is good, in the short run, for global order; but bad, in the long run, for democratic consolidation in the host country, and political consensus in the intervening country.
As the White House struggles to articulate a clear mission in Libya in the face of criticism from both the liberal and conservative bases, it is worth noting that ambiguous aims beget unending wars as it is worth
