Unlike the first half of the 20th century, the world was at peace in the late 1940s. Hitler was dead, Japan was devastated, the Cold War hadn’t sunk in just yet, and there was a shining new world governance body called the United Nations. Optimism in international cooperation was at a zenith.
Given the atrocities of World War II, it’s not surprising that members of the U.S. Congress supported the formation of strong international laws to restore world order and keep another global conflict from breaking out.
“Resolved by the House of Representatives (the Senate concurring), that it is the sense of Congress that it should be a fundamental objective of the foreign policy of the United States to support and strengthen the United Nations and to seek its development into a world federation … [with] powers adequate to preserve peace and prevent aggression through the enactment, interpretation, and enforcement of world law,” read a 1949 resolution sponsored by 111 representatives — including two future presidents, then-Reps. John F. Kennedy (D-Mass.) and Gerald Ford (R-Mich.).
More than 60 years later, some Americans and politicians now view that “world law” as an adversary.
Sen. Richard Shelby (R-Ala.) introduced a resolution in 2005 that would prohibit U.S. courts from “relying on any law, policy or other action of a foreign state or international organization in interpreting and applying the Constitution.”
Sen. Jeff Sessions, a fellow Republican senator from Alabama, criticized international law in similar fashion in a 2009 Wall Street Journal op-ed. Claiming that international law acts as a “diminishment of American sovereignty,” he asked, “Do judges serve American citizens or citizens of the world?”
Last fall, more than 70 percent of Oklahomans voted to ban courts from using and citing foreign or international law in judgments through a state referendum titled “Save Our State.”
The fear that international law might impinge on individual freedoms or national interest is deeply entrenched in parts of U.S. society, overlapping with the wariness some Americans have toward their own government — none of which is a new phenomenon. Americans have a long history of suspicion toward any laws — domestic or foreign — that they deem a threat to their personal liberty.
Still, when it comes to American perceptions of international law, a rather confusing, inconsistent and even contradictory story emerges. Attitudes have fluctuated over the past century depending on the issue, seeming both positive and negative simultaneously. And while many people believe President Obama has a greater respect for international law and cooperation than the previous Bush administration did, the issue is far more complex than changeovers in power or partisan politics, although both impact the discourse.
“The U.S. has always been both a supporter and someone who questions international law at the same time,” said David Caron, president of the American Society of International Law.
Today, for instance, the United States is calling on other countries to sign onto a global framework to tackle climate change. Yet the U.S. government’s own notable refusal to ratify the Kyoto Protocol — and recent failure to pass domestic climate legislation — has seriously hampered its credibility in ongoing negotiations (also see “Copenhagen One Year Later: Hopes Deflated, Not Defeated” in the December 2010 issue of The Washington Diplomat).
Likewise, both the Bush and Obama administrations identified the climate-accelerated melting of the Arctic as a key strategic interest because of the potential for untapped resources and access to quicker transportation routes. Yet the United States won’t sign onto the only international treaty governing the Arctic seabed, the U.N. Convention on the Law of the Sea, possibly putting it at a disadvantage in the race to divvy up the continental shelf with nations such as Norway, Canada and Russia (also see “Law of the Sea Convention Likely to Encounter Fierce Headwinds” in the December 2007 issue of The Washington Diplomat).
Such hesitation was not always the case. The 1949 resolution, for instance, called for global governance with teeth, whereby international law could restrain or obligate sovereign nations to act for the benefit of the entire globe. In stark contrast — as demonstrated in Shelby’s resolution, Sessions’s op-ed and the Oklahoma referendum outcome — today a fair number of Americans flatly and furiously reject even the mere mention of international law as an infringement on national sovereignty.
Caron insists that the important question is not whether Americans are pro- or anti-international law, especially because the answer is far from black and white. The question, rather, is about the specific concerns of politicians and citizens: What are their fears? What’s at stake? And most important, what are the politics at play?
What is International Law?
Whether Americans consider themselves for, against, somewhere in between or apathetic about international law, this legal framework shapes the lives of people every day — when they mail letters to friends and family abroad (the 1964 Constitution of the Universal Postal Union), purchase their favorite olives from Israel (1883 Paris Convention for the Protection of Industrial Property and the 1891 Madrid Arrangement Concerning the Prevention of False or Misleading Indications of Source) or sightsee on vacations in search of bison, blue whales or elephants in their natural habitats (1973 Convention on International Trade in Endangered Species).
With 188 countries as signatories, the International Civil Aviation Organization allows people to travel from country to country using passports, while the International Convention for the Safety of Life at Sea mandates that, should another Titanic incident occur to a cruise vessel, each ship must be properly equipped to save everyone onboard.
International law also seeks to prevent atrocities and human rights violations. The U.N. Convention Against Torture requires that signatory states criminalize all acts of torture — for instance, during an interrogation to obtain information — defining it as the intentional infliction of severe physical and/or mental suffering committed under the color of law. Rulings from the International Court of Justice, which settles disagreements between states, offer a legal forum to resolve border disputes that otherwise could spark war or bloodshed.
And many of this publication’s readers are well versed in the 1961 Vienna Convention on Diplomatic Relations that for 50 years now has codified the privileges and immunities to which all diplomats around the world are entitled.
The most obvious type of international law is a treaty, an agreement signed by two or more party states. Treaties include not only trade agreements and ceasefires that establish peace after times of war but also international conventions, protocols and covenants. The Treaty Section of the U.N. Office of Legal Affairs registers 4,000 treaty actions annually.
But not all sources of international law are specific and codified. Although they’re not explicitly documented, customs, which emerge from consistent and widespread or universal practices, are also considered international law.
In 1900, for instance, the owners of a Cuban commercial fishing boat charged the United States with violating international customary law when the Navy intercepted and confiscated their ship as it crossed an American blockade during the Spanish-American War. Citing the freedom of movement traditionally awarded to merchants in times of war since the early 15th century, the Supreme Court ruled in favor of the fisherman and set a precedent for incorporating international customs into domestic law, especially where no law exists.
More than 100 years later in 2009, after an American pharmaceutical company tested a new drug on Nigerian citizens without their consent, a U.S. federal circuit court ruled in favor of the sickened Nigerians even though no American law prohibited such actions outside U.S. borders. The court cited laws in 84 countries, the Nuremberg trials that punished Nazis for wrongful medical experimentation on humans, as well as provisions in the International Covenant on Civil and Political Rights, signed by 160 states. All were evidence that international law prohibits nonconsensual medical experimentation.
International court rulings are also forms of international laws. The International Criminal Court (ICC), for example, prosecutes individuals who have coordinated acts of genocide, war crimes, crimes against humanity and crimes of aggression, demonstrating a universal ideal and commitment that such acts should never go unpunished. The ICC — which formally came into being in 2002, the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force — is a court of last resort when nations cannot or will not prosecute such crimes. Spurred in part by the genocide in Rwanda and atrocities committed during the Balkan wars, the goal of the court is to end impunity for the perpetrators of the most serious crimes of concern to the international community.
Most notably, this includes leaders such as Sudanese President Omar al-Bashir, who has an ICC warrant out for his arrest, and possibly Col. Muammar Qaddafi if investigators determine war crimes took place in Libya. Interestingly, the Bush administration adamantly opposed joining the ICC for fear that American soldiers might come under its jurisdiction (that would be extremely difficult because the court cannot supersede a functioning justice system in the home country), although both Bush and Obama have generally been supportive of the court’s various prosecutions. Conversely, among the 114 ICC signatories are numerous African countries that have been the target of those prosecutions, including Congo, Kenya and Uganda.
When Politics Come into Play
Considering that international law seeks to condemn and prevent atrocities, promote human rights, and ensure equality of peoples of all nations, many embrace it as a positive force in an increasingly globalized and at-times dysfunctional world. But parts of international law are not without controversy, especially when politics is thrown into the mix.
And sometimes, the political opposition seems to fly in the face of reason. For example, social conservatives and a few religious organizations in the United States have campaigned heavily against the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which essentially calls for gender equality. It was first adopted by the U.N. General Assembly in 1979 and since then, 186 nations have ratified the treaty, leaving the United States in a strange company of holdouts — along with Sudan, Somalia, Iran and the Pacific island nations of Palau, Nauru and Tonga.
Conservatives warn, however, that CEDAW would require the United States to guarantee women equal pay with men, force women into military service and fund abortions. None of the reviews and recommendations issued under CEDAW, however, is legally binding, and abortion is not mentioned in the treaty.
Likewise, the International Protecting Girls by Preventing Child Marriage Act was successfully blocked in the House despite unanimous passage in the Senate late last year by conservatives who argued the bill could fund abortions and use the pretext of child marriage “to overturn pro-life laws.”
Nothing in the bill though mentions abortion or “family planning,” and ratification would not have appropriated any additional funding from the U.S. budget. It would, however, have made addressing child marriage a core aspect of American international development strategy.
Similar arguments have been used against U.S. ratification of the Convention on the Rights of the Child. Although it condemns child abuse and subjugation, opponents claim it would invade the privacy of family life and the right of parents to raise their children by their own standards. Thus, the United States — alone with Somalia — is one of only two nations that haven’t ratified the convention.
“There are some things that become politically significant beyond their actual merit,” said Caron, who is also a professor at the University of California Berkeley School of Law. “They become politically charged.”
The political spin on international law is neither new nor unusual in the United States. Labor groups — oftentimes Democratic — worried about job security have warned that free trade agreements such as NAFTA erode American jobs. Meanwhile, many corporate interests — oftentimes Republican — have vocally criticized any legally binding international framework to deal with climate change for fear it would hurt American businesses and competitiveness.
As for the 112th Congress, Congressional Quarterly Weekly reporters noted that “treaties might be hard to sell the next Congress,” citing John Bellinger III, former State Department legal advisor. Bellinger predicts that suspicion of international treaties will likely be stronger this year because “many conservative Republicans have tended to be skeptical of large multilateral treaties as a general matter.”
Although congressional ratification of the new START treaty proved to be a big victory for international law and nonproliferation advocates alike, many aren’t sure it would have stood a chance in a Republican-controlled Senate despite widespread bipartisan agreement that the treaty was a common-sense security necessity.
“It’s this distrust of international treaties and [the belief] that somehow we have agreed to something where we’re giving away something essential to our country,” Caron said of the occasional obstructionism.
These protests, Caron added, “reflect something else that’s going on…. It’s one group disagreeing with the outcome and thinking that international law tends to be used rhetorically to support a side they dislike.”
For those who trust the international system and believe states and world bodies will decide what’s best for humanity through healthy debate and collaboration, international law and global governance are often perceived as positive forces. Many believe that, especially in an interconnected world, these laws can prevent another world war from erupting and secure human dignity, environmental security and democratic freedoms.
But for those without such trust, international law merely hinders national interests. And for powerful nations such as the United States, the loss of sovereignty can be particularly threatening.
“There is a voice in the U.S. that says, ‘Be cautious,’ and it can be magnified,” Caron observed.
“It’s as if people are afraid international law will sneakily take something,” added Sheila Ward, director of communications and member relations at the American Society of International Law.
Former President George W. Bush’s rejection of the ICC embodies this concern. Likewise, opponents of arms-control treaties such as the Comprehensive Nuclear Test Ban Treaty, which President Bill Clinton signed in 1996 but was never ratified by Congress, claim the treaty would harm U.S. security by prohibiting all nuclear explosive testing, whether for military or civilian purposes. And judging by the Herculean effort to get the new START treaty passed last year, proponents of the test ban treaty know they have an uphill battle on their hands.
The small group of people standing against the U.N. Convention on the Law of the Sea treaty also takes a similar Machiavellian stance. Although it was originally created at the urging of the United States when other nations were claiming their ownership of the seas, closing water routes to Americans vessels and arresting U.S. ships, opponents of the treaty now say it will steal U.S. sovereignty. Perhaps, but it could also rob America of bargaining power at the United Nations as various nations stake their claim to what’s underneath the receding Arctic ice shelf — under the very rules established by the U.N. Convention on the Law of the Sea.
American Aversion Belies Overall Acceptance
Despite concerns that international law constrains U.S. interests or can meddle with judges’ verdicts, legal advocates seem to be winning the battle of American perceptions in several ways. First off, people may not always like them, but rules are a simple fact of modern life — and international law is necessary (some may call it a necessary evil) to maintain the kind of global stability much of the world has enjoyed over the last half century.
Caron said most Americans don’t flatly reject international law but understand it’s “not always great and not always bad.”
A November 2009 study by WorldPublicOpinion.org supports his claim, with 60 percent of Americans agreeing that “our nation should consistently follow international laws. It is wrong to violate international laws, just as it is wrong to violate laws within a country.”
Only 29 percent said that “if our government thinks it is not in our nation’s best interest, it should not feel obliged to abide by international laws.”
Other polls by the Chicago Council on Global Affairs show most Americans prefer a multilateral approach over unilateralism in the global arena.
Caron believes Americans are more curious about international law than afraid of it. “I find that people want information and want to know more.”
After all, it’s difficult to find an American who condones genocide or believes children should be sold into prostitution. But this oversimplifies the international law discourse. Caron noted that most people who oppose international treaties or court rulings citing customary law usually agree with the principle behind the laws and defect only on specific points: “It’s not necessarily a disagreement with the entire scheme, but a disagreement with what a particular provision might mean for the U.S.”
And in the grander scheme of a globalized world, international law will most likely only grow, although parts of it will and should continue to be debated. Most Americans, after all, don’t object to having NATO help U.S. troops in the fight against terrorism, or laws that outlaw piracy on the oceans, or rendition agreements to bring to justice American criminals hiding abroad.
Likewise, U.S. government officials far more often than not rely on the legal framework of international law to justify their actions. For example, even the biggest U.N. skeptics still recognize the importance of the world body in sanctioning government policy. Hence, the Bush administration famously tried to woo members of the United Nations using the now-discredited pretext of weapons of mass destruction to garner international support for the U.S.-led invasion of Iraq.
Today, the Obama administration actively sought approval from the U.N. Security Council as well as the Arab League before agreeing to any military intervention in Libya (see cover profile). That approval was key for the United States to avoid the appearance of unilaterally striking a third Muslim nation. And although the administration’s ultimate strategy for Libya continues to be debated, it’s clear Obama is relying on the line-by-line authorization of the U.N. resolution that dictates the intervention is intended to protect civilians to both guide his actions and avoid military overreach. As Philip Ewing wrote recently in Politico, although Republicans have accused the president of hesitant leadership, “to Obama and his generals, it all makes sense within the strict confines of the United Nations Security Council resolution that authorized them to act in the first place — restrictions they clearly hope prevent this from becoming the third U.S. shooting war in the Middle East of any lengthy duration.”
The authorization is certainly not a long-term solution to Libya’s woes, but “Obama’s own unwillingness to commit American forces unilaterally meant this was the only option, imperfect and messy as it might be,” Ewing wrote.
In the end, as much as the United Nations regularly takes a beating from just about everyone, Republican and Democrat alike, over its effectiveness and sluggish bureaucracy, the world body has provided a bedrock of international cohesiveness unparalleled in modern history — a fact not lost upon the United States, its biggest benefactor. In fact, with the United States launching two wars, U.N. peacekeeping missions experienced an unprecedented surge over the last decade under the Bush administration — in part at its behest — in hotspots such as Sudan and Somalia.
“The U.S. will turn more to international law because it’s economically constrained,” Caron said. “We have to set priorities about what we’re doing globally. It’s relative power: If we’re not the only ‘big person’ — say China continues to grow — how are we going to argue with them? Are we going to expend a lot of resources by having Naval exercises? Or are we going to try to argue rhetorically about what’s legal and not legal and how they should be bound.”
He adds: “If you understand what [international law] is, you’d be hard-pressed to find someone who says it’s bad as a whole.”
About the Author
Rachael Bade is a contributing writer for The Washington Diplomat.