Wikipedia:Reference desk/Archives/Humanities/2017 January 30

= January 30 =

Soviet Union and the Congo Crisis.
To what extent was the Soviet Union;s involvement during the Congo Crisis? What did they hope to achieve? --Drasin re (talk) 13:14, 30 January 2017 (UTC)
 * Wikipedia has an article titled Congo Crisis. There is some discussion about the Soviet involvement and its fallout.  -- Jayron 32 13:21, 30 January 2017 (UTC)


 * Another, 'bit more 'CIA conspiracy' version than Jayron 's: ,,-and-foreign-intervention .--Askedonty (talk) 13:55, 30 January 2017 (UTC)

Questions about the José Medellín murder case
Some questions about the case:

1. It seems extremely odd to me that whilst the USA is a party to the Vienna Convention on Consular Relations, and has ratified it, there is no Federal law imposing article 36 (consular notification) requirements on State law-enforcement authorities. (I think there is some Federal statute binding Federal law enforcement agencies to comply with the requirement?) Many states do comply with the convention's rules, but there seems to be no binding Federal obligation on them to do so. How did this situation come to be? Shouldn't "ratification" generally involve not just Congress saying "yes" to a convention or treaty, but passing the necessary "domestic" legislation to give effect to all the treaty's obligations? How did the situation I describe come to be? Is there a legislative history here? Was there ever any attempt to pass such legislation? And if not, why not? Was it a conscious decision, or just neglect? And surely after the Avena case, wouldn't Congress have looked at introducing such legislation? The justice system which survived Miranda v. Arizona would unquestionably survive the enshrining in law of the far less intrusive right to consular notification. (The lack of respect for the Vienna Convention in domestic American Federal law would give rise to fears as to other convention provisions, such as whether the U.S. would respect the Diplomatic immunity and the other convention requirements, wouldn't it? If I was another country, this situation would make me very concerned).

2. In the various cases which have arisen (Medellín v. Texas, Sanchez-Llamas v. Oregon, and Breard v. Greene), it doesn't seem to be explained how the requirement, even if only imposed by State law or procedure, was overlooked or neglected. Or whether the States in question had laws which imposed article 36 type obligations at the state level. What was the actual situation? If there was a State law imposing article 36 type obligations, why would the defendants need to rely on the Vienna convention, as opposed to simply arguing that the (state) law in question had not been respected?

3. In the Medellín case, was it argued that the failure to allow Medellín t talk with a consular officer had any prospect of actually affecting the outcome of the case? How did the lawyers representing Medellín claim that the outcome was in any way compromised by not offering Medellín the right to speak to a consular officer? Was there any realistic suggestion that Medellín would have done anything differently, had he and the Mexican Consul or Ambassador had their chat?

(I always assumed that to appeal based on "something not being done the proper way according to the law", you generally need the judge(s) to not only agree that this happened, but also agree that had things in fact been done "the proper way", there is a reasonable prospect - not a big one, just enough to introduce "reasonable doubt" on the verdict - that the outcome would have been different? Otherwise, the system would crumble with infinite appeals and retrials?)

4. Am I correct in assuming that had Medellín's claim been upheld, all that would mean in the direct sense is the right to a new trial minus his confession, as in the Miranda case I refer to above? (As it happens, Miranda was convicted again, even without his confession, despite the case leaving a permanent mark on American police procedure). Or would he be entitled to more? Eliyohub (talk) 15:06, 30 January 2017 (UTC)


 * Eliyohub -- the thing about treaties concerning the administration of criminal justice is that in the United States, the federal government signs and ratifies the treaties, but it's the states which do the vast amount of prosecuting and trying of crimes (only a relatively small proportion of crimes becomes a "federal case"). And the U.S. federal system also means that the President (executive) and (legislative) can't give any kind of direct orders to the states about how they prosecute and try cases under state laws.  At most, Congress could withhold some supplemental federal funding (and similar) from states which don't apply, but such funding was mainly about putting more cops on the beat (and has diminished in recent years, I think).  Only the Supreme Court (judiciary) could issue rulings directly requiring the states to comply with such a treaty, and it pretty much declined to do so (refused to even declare the treaty "self-executing").  AnonMoos (talk) 00:09, 31 January 2017 (UTC)


 * It doesn't make sense that Congress has no constitutional powers here. By your logic, how can or does the federal government have the power to force state authorities to respect the treaty's provisions on diplomatic immunity? Surely congress has the power to pass legislation regarding international obligations, including legislation which binds state authorities? Or is there in fact, theoretically nothing stopping a state from ignoring diplomatic immunity? Both stem from the same treaty, so what would be the difference as to the powers of congress to pass legislation imposing these requirements on the states? Eliyohub (talk) 02:11, 31 January 2017 (UTC)
 * Reading Treaty Clause, it seems that Congress does have some authority. ←Baseball Bugs What's up, Doc? carrots→ 02:25, 31 January 2017 (UTC)


 * Eliyohub -- the federal government has exclusive authority in matters of foreign diplomacy, but I really don't see how "diplomatic immunity" is involved in Medellín and similar -- the state authorities failed to notify Medellín of his right to contact his consulate concerning a case tried in state courts, and there are distinct limitations on the authority of the federal government to issue direct orders to the states to modify their legal systems. AnonMoos (talk) 06:46, 31 January 2017 (UTC)


 * My point about diplomatic immunity is that the feds dictate that the state authorities respect it. I would assume that the treatment of a foreign country's citizen in accordance with a treaty with that country would be just as much a matter of "foreign diplomacy", even if the citizen is not a diplomat? Note the Avena case I linked to above, where the ICJ clearly held that the citizen's country has rights. And naturally, a breach of an obligation to a foreign country - not "foreign diplomacy"? Mexico had every right to protest. So why should the powers of the feds to dictate to the states be any different between the two situations?
 * The only alternative I can see is, if implementing some of the terms of the treaty is beyond congressional powers, it would be precluded from ratifying it without first getting an agreement from all 50 State legislatures to implement those terms which fell under state jurisdiction, such as an agreement on a Uniform law or such-like? Otherwise, the US has ratified a treaty without honoring it? Eliyohub (talk) 07:22, 31 January 2017 (UTC)


 * You're basically asking a counterfactual question about why the U.S. Constitution isn't different from what it actually is. Article III says "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction" (i.e. state courts are not involved).  However, there's no provision which empowers the president or Congress to issue direct orders to the states about the workings of the justice system of each state.  The Supreme Court had the opportunity to slightly increase federal powers in this area, but declined, as you can read in the same Medellín v. Texas article which you originally linked to.  This leaves the federal government in an awkward position where it agreed to the obligations of the Vienna treaty, but it doesn't actually have the power to ensure that the individual states will obey the consular notification provisions of the treaty. AnonMoos (talk) 09:14, 31 January 2017 (UTC)


 * The other important thing to look for here is the existence of test cases. The law system in the U.S. is based on the common law system and its reliance on case law.  Unless a situation has actually made it through the court of law, and has had a ruling to support it, it is an "open question" and is legally unanswerable.  There are many hypothetical scenarios one COULD invent, and unless we have a court case to cite for you, we can literally not answer your question with reliable sources.  -- Jayron 32 15:31, 31 January 2017 (UTC)


 * OK, I went and carefully read the supreme court judgement. It answers some questions.
 * 1. In one sentence, "The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress." In other words, the President does not have the authority, a he tried to do in this case (via a "Presidential memorandum"), to implement the treaty provisions. There is ABSOLUTELY NO SUGGESTION in the judgement that congress lacks the power to pass laws which bind the states to enforce article 36 rules. Congressman Howard Berman responded by introducing the Avena Case Implementation Act of 2008, but it never made it past the house committee on the judiciary, and thus "died" from the books when the term of congress ended. I'm trying to find out what happened in the committee hearings, but can't. The act does not state under which of the enumerated powers of congress allow for its enaction, although the only options would seem to be the Necessary and Proper Clause or the Treaty Clause. Texas State Attorney guidance is at, but I have no idea if it has the force of law. Anyone able to follow this up - does Texas have a binding law, as opposed to mere procedure, on consular notification?
 * 3. The texas court did express their views as to the "lack of prejudice" arising from the breach. Medellin apparently claimed that the Consulate would have helped him obtain counsel for the "mitigation phase" of the trial, thus possibly avoiding the death penalty, but it does not seem that he claimed to be wrongly convicted of the murder, simply possibly wrongly sentenced to death. There seems to have been plenty of evidence to convict him on even absent his confession, so his counsel may have seen any attempts to overturn the verdict (as opposed to the sentence) as pointless. Eliyohub (talk) 17:21, 31 January 2017 (UTC)

Nanjing Massacre - availability of sources
I've recently been involved in some ugly and frankly stupid debate about the very existence of the Nanjing Massacre. It has annoyed me greatly as he is literally like a bot just asking me to give primary sources over and over again. Anyway, I would like to know whether there are useful primary sources to prove that. Ideally, I would also want to ask about the values and limitations of the source you provide and I hope that it is clean from any chance of manipulation against the Japanese. The Average Wikipedian (talk) 16:37, 30 January 2017 (UTC)
 * Start here and follow the references therein. --Stephan Schulz (talk) 17:46, 30 January 2017 (UTC)
 * The Wikipedia articles Nanking Massacre and Nanking Massacre denial give copious sources. Blooteuth (talk) 19:49, 30 January 2017 (UTC)
 * Thanks for the suggestion. Sadly most free previews don't cover much and the books themselves are usually compiling secondary sources. Indeed I've looked over the references, however a significant portion of them are Chinese in origin (and hence are susceptible to manipulation) and primary sources are still lacking. The Average Wikipedian (talk) 15:17, 31 January 2017 (UTC)


 * Save yourself now. This argument is not about the historical truth on the massacre. It is about some entrenched idiot on the interwebs defending their personally adopted position about something else. Maybe you've insulted their favourite politician or Quidditch team. Whatever it's about, it's not about Nanking. Showing sources or proof will not change this one iota, because they're just not really looking for proof of a historical event. Andy Dingley (talk) 03:15, 31 January 2017 (UTC)
 * I don't know what debate that is, but Andy's advice is probably well taken. Your situation has famously been condensed here. 50.0.136.56 (talk) 07:34, 31 January 2017 (UTC)
 * To some extent you are right because the guy is like a zombie typing primary source please without even reading what I have said, but I just want to shut him up here as he is really getting up my nerve and I just want to progress the discussion. The Average Wikipedian (talk) 15:17, 31 January 2017 (UTC)
 * You can repeat the discussion, I doubt you can progress it. Andy Dingley (talk) 16:02, 31 January 2017 (UTC)
 * To quote Jonathan Swift, Reasoning will never make a man correct an ill opinion, which by reasoning he never acquired. This is often paraphrased as "You cannot reason someone out of a position they did not arrive at via reason".  In other words, your effort is bound to be wasted.  This person does not believe in the use of reason, so your using it is like speaking a foreign language to them.  -- Jayron 32 16:38, 31 January 2017 (UTC)
 * I don't think he's not using reason. He claims that there is no primary source he can find after a long time of research and I don't think this is completely unreasonable, just that I think sources exist but I can't find one of good quality that is completely foolproof. The Average Wikipedian (talk) 11:17, 1 February 2017 (UTC)
 * No, what he does is a priori has decided he will invalidate sources that do not align with his pre-conceived notions. The massacre is well documented.  There were copious contemporary accounts that were reported and published while the massacre was happening.  For example, here is a collection of journalism from U.S. news sources containing first hand accounts of the atrocities from eye witnesses to it, that were published as it was happening.  Such sources could have been found in a 30 second glance at a properly worded Google source, which is all it took me.  I just typed in "Rape of Nanking News" into google, and found that, as well as these accounts from actual survivors and these accounts and This more modern accounting that cites contemporary (1937) documentation.  It's there, one can find it pretty easily, so long as one cares to look.  --[[User:Jayron32| Jayron]32 14:15, 1 February 2017 (UTC)
 * See also The Good Man of Nanking, "a collection of the personal journals of John Rabe, a German businessman who lived in Nanjing at the time of the Nanking Massacre". Rabe is widely cited because being German, it is assumed that he had no reason to exaggerate his accounts for political ends. Alansplodge (talk) 17:54, 1 February 2017 (UTC)
 * Actually, I had already suggested all the sources you have shown above. However, he challenges that those newspapers were merely reporting what the foreign journalists heard from the Chinese, and hence some of them didn't even testify in the tribunal, and that they weren't present when the atrocities were committed. Also, he suggests that John Rabe was a German affiliated with Siemens Company which would make him a pro-Chinese faction and that all he wrote about was propaganda. He suggests that I am the one with confirmation bias... The Average Wikipedian (talk) 05:04, 2 February 2017 (UTC)
 * As Jayron32 predicted, "he will invalidate sources that do not align with his pre-conceived notions" -- you are not arguing with a reasonable person, you are attempting to get a socially-programmed hormone-driven machine to do something it currently lacks the capacity for. That individual may be a human being with reason in other instances, but for this situation, it's easiest just to treat them the same way you would a spambot. Ian.thomson (talk) 05:23, 2 February 2017 (UTC)