The United States and the Rule of Law in International Affairs

by John F. Murphy

Overview

The U.S. has often proclaimed its support for the rule of law in international affairs, but has found it increasingly difficult to adhere to it in practice. John Murphy demonstrates the wide-ranging difficulties obstructing U.S. adherence to the rule of law. He also examines the reasons for the declining U.S. support for the international institutions it was instrumental in creating, as well as U.S. unwillingness to support new popular initiatives in international law.

Product Details

ISBN-13:	9780521822565
Publisher:	Cambridge University Press
Publication date:	09/16/2004
Edition description:	Revised ed.
Pages:	380
Product dimensions:	6.26(w) x 9.33(h) x 1.18(d)

About the Author

John F. Murphy is Professor of International Law and Business, Villanova University School of Law, Pennsylvania. He is author or editor of numerous books and monographs and has served as a consultant to the US Departments of State and Justice, the American Bar Association Committee on Law and National Security and the United Nations Crime Bureau. He is currently the American Bar Associations' Alternative Observer at the US Mission to the United Nations.

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Cambridge University Press
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Introduction

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Philip Allott, a former Legal Counselor in the British Foreign and Commonwealth Office and a prominent scholar, recently suggested that the United States is a "law-state," that is, the "transformation of the American colonies into a new kind of society at the end of the eighteenth century was achieved through law."¹ This "new kind of society," moreover, has been grounded on the concept of the rule of law. In the words of former US Supreme Court Justice Hugo Black, the United States is "dedicated" to the rule of law.²

Recently, this "dedication" to the rule of law has taken the form of efforts, by the US government and others, to promote the rule of law in foreign countries, especially in the third world and the former Soviet bloc countries. Reflecting this new emphasis, in 1999 Secretary of State Madeleine Albright created the position of Senior Coordinator for the Rule of Law in the State Department.³

At the same time the precise meaning of the term "rule of law" has been a topic of sharp debate, and it has been suggested that its meaning "may be less clear today than ever before."⁴ Also, although the rule of law as an ideal has enjoyed near universal support, some have criticized the very concept. For example, Morton J. Horwitz, a leader in the critical legal studies movement, has contended that the rule of law "[b]y promoting procedural justice . . . enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage. And it ratifies and legitimates an adversarial, competitive, and atomistic conception of human relations."⁵

For my part I join the nearly universal support for the rule of law as an ideal, even if the ideal is seldom realized in practice, and do not intend to join the debate over its precise meaning. Rather, for purposes of this study, I will use the term in the sense of Chief Justice Marshall's famous dictum in Marbury v. Madison that American government would cease to deserve the name of "a government of laws, and not of men," if its "laws furnish no remedy for the violation of a vested legal right."⁶ The rule of law also requires that it guide its subjects in their affairs and that they understand and comply with it. Officials as well as ordinary citizens should be subject to its dictates. Impartial instrumentalities of justice, including courts, should be available to enforce the law and should employ fair procedures. It may also be useful to keep in mind the observations of Richard H. Fallon:

Perfectly realized, the Rule of Law would be rule: (i) in accordance with the originally intended and understood meaning of the directives of legitimate, democratically-accountable lawmaking authorities, (ii) cast in the form of intelligible rules binding on citizens, governmental officials, and judges alike, (iii) as identified and elucidated in any interpretive process guided by publicly accessible norms and characterized by reason-giving, and (iv) consistent with legitimate public purposes and sound, shared principles of political morality. When law, in the positivist sense, fails to satisfy any of these elements, the Rule of Law is less than completely realized, but still may (or may not) be more nearly approximated than it is scorned or abandoned.⁷

The United States has often proclaimed its support for the rule of law in international affairs.⁸ In particular, at the close of World War II, when it was truly the "sole superpower," the United States engaged in strenuous efforts to create an international order based on legal principles. These efforts resulted in a post-World War II international system, still very much with us, that presupposed at every stage of its development a dominant power that would be essentially non-imperial, nonaggressive and committed to the proliferation of law-based international institutions.

The United States played the leading role in the creation of the United Nations and strongly supported the attempt in the United Nations Charter to reintroduce a system of collective security against aggression, one that improved upon the arrangements set forth in the Covenant of the League of Nations and that was based on a rule of law paradigm. It also strongly supported a veritable explosion of international organizations designed to encourage cooperation among member states to address a broad range of ills plaguing the world community. With the International Labor Organization serving as a forerunner, these international organizations included such specialized agencies of the United Nations as the Food and Agriculture Organization, the International Bank for Reconstruction and Development (World Bank), the International Civil Aviation Organization, the International Development Association (an affiliate of the World Bank), the International Fund for Agricultural Development, the International Finance Corporation (an affiliate of the World Bank), the International Maritime Organization, the International Telecommunication Union, the United Nations Educational, Scientific and Cultural Organization, the United Nations Industrial Development Organization, the Universal Postal Union, the World Health Organization, the World Intellectual Property Organization, and the World Meteorological Organization. The United States also strongly supported the creation of two institutions that are not technically specialized agencies but are closely related to the United Nations: the General Agreement on Tariffs and Trade (succeeded in 1995 by the World Trade Organization) and the International Atomic Energy Agency. Some of these international organizations, such as the United Nations Educational, Scientific and Cultural Organization, primarily serve social welfare or cultural purposes rather than lawmaking or law-applying functions, but as we shall see in chapter 1 of this study, many of these institutions have significant lawmaking capability. Many other significant international organizations, such as the Organization of American States, the Organization for Security and Cooperation in Europe, and the Organization for Economic Cooperation and Development (OECD), have similarly enjoyed strong US support and participation. The United States was also early in accepting the so-called compulsory jurisdiction of the International Court of Justice (ICJ), the successor to the League of Nations Permanent Court of International Justice, whose jurisdiction the United States never recognized because it failed to join the League. To be sure, even as early as 1946, the United States had reservations about the ICJ and hedged its acceptance of the Court's jurisdiction with the disabling "Connally Reservation," which reserved to the United States rather than the Court the authority to determine whether a matter was essentially within the domestic jurisdiction of the United States and therefore outside the jurisdiction of the Court.

The very existence of the United States as the superpower was an indispensable element for its strong support of the rule of law concept in international affairs. As the predominant authority in world affairs, with a so-called "automatic majority" in the United Nations and overriding influence in other international institutions, the United States was in a position to ensure that the law would develop in a way acceptable to it and, to a considerable extent, that decisions taken regarding the interpretation and application of that law would be compatible with its interests. With the passage of time, however, the United States gradually began to lose the control it had over the international legal process. With the emergence of the Soviet Union as a key adversary, and the communist takeover in China, it became clear that the Security Council would not be able to maintain international peace and security through the collective security system envisaged by the drafters of the UN Charter because there would be no unanimity of view among the permanent members of the Council. Also, as the so-called "third world" states became a majority in the United Nations, a majority strongly influenced by Soviet views, US influence in the General Assembly sharply declined during the 1960s and 1970s to the point where that organ came to be regarded as a "dangerous place." Further, communist aggression in various parts of the world or state-sponsored acts of international terrorism sometimes resulted in unilateral action by the United States of questionable legality. In general the Cold War created numerous barriers to the rule of law in international affairs.

In the 1990s, with first the less aggressive foreign policy of Mikhail Gorbachev's Soviet Union, and then the dissolution of the Soviet Union and the rollback of communist control in eastern and central Europe, the situation changed dramatically. Now, it appeared, the rule of law international institutions, especially those created after World War II, would be able to function in the manner envisaged by their creators. The high point of this optimism, perhaps, was the performance of the Security Council in response to Iraq's invasion of Kuwait in 1990, when the Council adopted numerous resolutions demanding that Iraq withdraw from Kuwait and ultimately authorized the use of force by coalition forces to force a withdrawal and imposed an unprecedented cease-fire regime on Iraq. This optimism was soon dispelled, however, as UN efforts with respect to keeping the peace in Bosnia-Herzegovina, Somalia, and Kosovo, among others, ran into extreme difficulties.

For its part, during the 1990s and early in the new millennium, the United States has found itself in uncharted territory. While proudly proclaiming itself the "sole surviving superpower," the United States has experienced a "power shift" that has resulted in a significant loss of autonomy and its sharing power with a variety of nongovernmental actors.⁹ Moreover, as Samuel P. Huntington has noted, "[t]he settlement of key international issues [including, of course, legal issues] requires action by the single superpower but always with some combination of other major states."¹⁰ The United States, however, has often acted more or less unilaterally, with the result being that:

On issue after issue, the United States has found itself increasingly alone, with one or a few partners, opposing most of the world's states and peoples. These issues include UN dues; sanctions against Cuba, Iran, Iraq, and Libya; the land mines treaty; global warming; an international war crimes tribunal; the Middle East; the use of force against Iraq and Yugoslavia; and the targeting of 35 countries with new economic sanctions between 1993 and 1996.¹¹

For these and a host of other reasons the United States has found it increasingly difficult to adhere to the rule of law in international affairs. This study explores these reasons. The primary goal of the study is not to search out cases where the United States violated its international obligations, much less to make a case that the United States has been an international outlaw. Rather, such cases are examined only to the extent that they are illustrative of wide-ranging difficulties standing in the way of US adherence to the rule of law. A primary focus of the study is on reasons for the declining US support for the rule of law institutions it was instrumental in creating and on US unwillingness to support new initiatives in international law enjoying the support of most other members of the world community.

As a first step toward understanding why the United States has deviated from the rule of law concept in international affairs, chapter 1 considers the nature of international law and international institutions. These differ markedly from the law of the United States and from US institutions. For example, there is no legislative body in the international arena. The UN General Assembly has no authority to bind its members except with respect to budgetary and internal matters. By contrast, the UN Security Council, if it finds a threat to or a breach of the peace, has the authority to adopt resolutions that member states are bound to carry out, but this authority is limited in scope and has recently been exercised in a questionable manner. Unlike that of the US Supreme Court, the jurisdiction of the International Court of Justice depends on the mutual consent of the states parties to the dispute, and the Court has played a modest, although sometimes highly controversial, role in international affairs.

The nature of law in the international arena also differs greatly from its domestic counterpart. Treaties, the first primary source of international law, create binding obligations for those countries that become parties to them, but their terms are often ambiguous, and, more often than not, they contain no requirement that parties to a dispute over their interpretation or implementation refer the dispute to a court or some other dispute settlement mechanism for a binding resolution. To be sure, most contracts governed by national law contain no such requirement either. But in national legal orders, especially in that of the United States, there is a court system available for the resolution of contractual disputes, and one whose jurisdiction is not necessarily dependent on the consent of all parties to the dispute.

Customary international law, the second primary source of international law, is by definition unwritten and the product of interactions between countries undertaken with a sense of legal obligation. With the advent of over 190 countries ("states") constituting the international community, the process whereby customary international law is created has arguably become unwieldy, and debate over what degree of agreement among states is necessary to constitute a norm of customary international law has been sharp. Some decisions of international tribunals based primarily on the interpretation and application of alleged norms of customary international law - such as the decision of the International Court of Justice in Nicaragua v. United States holding that the United States had violated various norms of customary international law - have been highly criticized.

Finally, chapter 1 examines how the nature of international law has changed dramatically during the last few decades. Ironically, perhaps, one of the reasons why the United States has found it increasingly difficult to adhere to the rule of law in international affairs has been the explosive increase in the scope of international law. With the "globalization" of the world economy, and the externalization of matters that once were considered to be purely national, international law now applies to many subjects and fields of law - such as criminal law, environmental law, family law, the jurisdiction and judicial procedures of US courts, human rights, and economic, political, and social activities of states in the United States - that previously were regulated mostly or even solely by domestic law. Partly in response to the greatly expanded scope of international law, new international legal institutions - the World Trade Organization, ad hoc and permanent international criminal tribunals, and the Law of the Sea Tribunal - have been created, or existing international legal institutions - the United Nations, the International Court of Justice, the World Bank, and the International Monetary Fund - have become more active and have assumed greater responsibilities. As a result of this emergence of international law and international legal institutions, new actors have demanded, and have often been granted, the right to participate in their development. Besides the governments of the many states that have been created with the end of colonialism and the collapse of the Soviet Union and of Yugoslavia, these new actors have included transnational or multinational corporations, nongovernmental organizations (NGOs), prominent individuals, and state governments in the United States. On numerous occasions these new actors have had interests contrary to the official position of the US government, and at times they have worked assiduously and successfully in international conferences to bring about a final product that the United States has opposed. Recent examples include the statute for a permanent international criminal court and the treaty banning land mines.

Under the dualist approach long favored by the United States, international law and domestic US law are two entirely separate legal systems and each operates independently of the other. In accordance with the dualist approach international law becomes part of and is applied by the US legal system only to the extent that it is incorporated into the US legal system. Accordingly, chapter 2 of this study considers the status of international law under US law.

As chapters 1 and 2 attempt to demonstrate, the ambiguity of international law, its greatly expanded scope of coverage, its unsettled status as the law of the land, and the difficulty in invoking it in US courts as a constraint on the actions of the US government all undermine the likelihood that the United States will adhere to the rule of law in international affairs.

Besides the great expansion in the scope of international law, another recent development that has had a profound impact on US adherence to the rule of law in international affairs is the collapse of the Soviet Union. This has left the United States as the "sole remaining superpower" and has encouraged an attitude of triumphalism that has irritated the governments of other countries and may have undermined US initiatives toward the development of international law and policy. Accompanying this triumphalism and closely related to it is an attitude of "exceptionalism," that is, that the United States bears special burdens and is entitled to special privileges because of its status as the sole surviving superpower. The collapse of the Soviet Union has also brought about a recrudescence of US provincialism and isolationism as well as of a preference to act unilaterally rather than multilaterally. In short, certain attitudes currently characteristic of the US policy stand in the way of US support of the rule of law in international affairs.

US triumphalism, exceptionalism, and provincialism are especially well illustrated by the position taken by the executive branch and by Congress on the recently concluded statute for a permanent international criminal court. Although President Bill Clinton and other members of his administration had professed support for the creation of a permanent international criminal court, during the deliberations on the draft statute for a permanent international criminal court at the Rome Conference in the summer of 1998, it became clear that under no circumstances was the United States willing to contemplate that US soldiers or private citizens would be tried before such a court. In support of this position US executive representatives argued that because only the United States had global responsibilities for maintaining the peace, it could not risk subjecting its troops to possible politically motivated prosecution before a permanent international criminal court of uncertain integrity. For their part members of Congress decried the failure of the Court's Statute to incorporate all of the protections of the US Bill of Rights, although in practice the alternative to prosecution before the international criminal court would likely be a trial before an adversary's military tribunals, where protection of the rights of defendants would be utterly lacking, rather than trial before a US court or military tribunal. As we shall see in chapter 8, for its part the Bush administration has waged a "holy war" against the Court.

Similarly, the United States cited its responsibilities for the defense of South Korea and for maintaining the peace in refusing to become a party to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction (the Landmines Treaty). It did so despite the publication of a full-page advertisement in the New York Times containing an open letter by General Norman Schwarzkopf and fourteen other retired generals and admirals stating that anti-personnel land mines were not essential to military effectiveness and the safety of US forces in South Korea. Primarily because of strenuous efforts by NGOs, 122 nations ultimately found the US arguments unconvincing and agreed to ban a weapon that previously most states had viewed as an essential part of their military inventory.

Most striking are US actions or inactions that undermine the integrity of international institutions that the United States was instrumental in creating. The US failure to pay its UN dues, despite a clear international obligation to do so, is perhaps the best-known example. Another example is the withdrawal by the United States from the proceedings in Nicaragua v. United States before the International Court of Justice after it lost the jurisdictional phase of the case.

As noted above, the availability and use of impartial instrumentalities of justice, including courts, is an indispensable component of the rule of law.

As we shall see in this study, there are increasing signs of rebellion at the US state level against the limitations of international law. For example, various states have enacted or threatened to enact rules imposing economic sanctions on foreign countries that displease them or on individuals or businesses that do business with such countries. In response, some of our closest allies have threatened to challenge these rules through the World Trade Organization's dispute settlement mechanism. Most strikingly, the collapse of OECD negotiations on a draft multilateral agreement on investment came about in part because of concerns that the agreement would disrupt state and local lawmaking capacity.¹²

Paradoxically, as Robert Keohane has observed, foreign policy considerations may counsel against US compliance with international law.¹³ A reputation for compliance with international law is not necessarily the best means, and certainly not the only means, for accomplishing certain foreign policy objectives. States can also benefit from a reputation for toughness or even for irrationality or unpredictability. Powerful states, like the United States, are less likely than most to pay a high price when they violate international law, so they may conclude that they would do better by violating international law when doing so shows that they will retaliate against threats to national security. These and other attitudes that hinder US adherence to the rule of law in international affairs will be highlighted throughout this study.

With chapter 3 the focus of this study shifts from an overview of the nature of law and legal process in international affairs and of the treatment of international law in the domestic legal order of the United States to a detailed examination of some salient examples of US difficulties with the rule of law in international affairs. Chapter 3 begins with the US refusal to pay its UN dues. Subsequent chapters address the following subjects and US difficulties in adhering to the rule of law with respect to them: the use of force (ch. 4), arms control, disarmament, and nonproliferation (ch. 5), the law of the sea (ch. 6), the International Court of Justice (ch. 7), the prevention, prosecution, and punishment of international crimes (ch. 8), and human rights and international environmental issues (ch. 9). The final chapter includes a summary and conclusions, and some possible future scenarios (ch. 10).

A major challenge throughout this study will be how to assess the likely impact of the September 11, 2001, bombing of the World Trade Center and the Defense Department (Pentagon) on US attitudes towards the rule of law in international affairs. With President George W. Bush's declaration of a "war" on terrorism, the United States strenuously engaged in efforts to build a coalition of states to support its measures against terrorism, including the use of force in Afghanistan or other states deemed to be sponsors of terrorism. To this end the US House of Representatives voted to release $582 million that the United States owes in back dues to the United Nations, in part because "[t]he UN is the world's premier forum and will be one of the primary theaters for US diplomacy on this matter."¹⁴ Prior to September 11, a bill to release the funds had been blocked in the House for reasons we shall explore in chapter 3. There have been and are likely to be other changes in US policy, having implications for the rule of law in international affairs, flowing from the events of September 11.

One caveat. It is my hope that both the trained international lawyer and a wider readership will benefit from this study. As a consequence, some parts of it may be of more immediate interest to some readers than to others. Thus some may wish to skim descriptions of the international legal process and concentrate instead on those sections that suggest how changes in and challenges to the international legal process have compounded the difficulties the United States has had in adhering to the rule of law model. Conversely, others may not be interested in the occasional technical or theoretical discussions, although I have tried to keep these to a minimum.

Notes

1.	Philip Allott, The True Function of Law in the International Community, 5 IND. J. GLOBAL LEGAL STUD., 391, 392 (1998).
2.	Bell v. Maryland, 378 US 226, 346 (1964) (Black, J., dissenting).
3.	Remarks by the Under Secretary of State for Global Affairs, Frank E. Loy, at the Vice President's Conference on Corruption, Organization of American States, Washington, D.C., February 25, 1999, at 2, US Dept. of State Listserver, at [e-mail].
4.	Richard H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1 (1997).
5.	Morton J. Horwitz, The Rule of Law: An Unqualified Human Good?, 86 YALE LJ 561, 566 (1977).
6.	Marbury v. Madison, 5 US (1 Cranch) 137, 163 (1803).
7.	Fallon, supra note 4, at 38.
8.	Remarks made by President George H. W. Bush to a joint session of Congress in September 1990 in the wake of the coalition's victory over Iraqi forces in the Gulf offer a recent and prominent example. At that time President Bush said that a new world was emerging, "a world where the rule of law supplants the rule of the jungle. A world in which nations recognize the shared responsibility for freedom and justice. A world where the strong respect the rights of the weak . . . America and the world must support the rule of law. And we will." Transcript of President's Address to Joint Session of Congress, NY TIMES, Sept. 12, 1990, at A20. See also Excerpts from President's News Conference on Gulf Crisis, NY TIMES, Aug. 31, 1990, at A11.
9.	See Jessica T. Mathews, Power Shift, FOREIGN AFF., Jan.-Feb. 1997, at 50.
10.	Samuel P. Huntington, The Lonely Superpower, FOREIGN AFF., March-April 1999, at 35, 36.
11.	Id. at 41.
12.	For an extensive discussion of this issue, see Robert Stumberg, Sovereignty by Subtraction: The Multilateral Agreement on Investment, 31 CORNELL INT'L LJ 491 (1998).
13.	Robert O. Keohane, International Relations and International Law: Two Optics, 38 HARV. INT'L LJ 487 (1997).
14.	See statement of Representative Tom Lantos, quoted in Lizette Alvarez, House Approves $582 Million for Back Dues Owed to U.N., NY TIMES, Sept. 25, 2001, at A8, col. 1.

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© Cambridge University Press

Table of Contents

1. Introduction; 2. The status of international law under US law; 3. UN dues; 4. Use of force; 5. Arms control, disarmament, non-proliferation and safeguards; 6. Law of the sea; 7. The international court of justice; 8. Prevention, prosecution, and punishment of international crimes; 9. Human rights and international environmental issues; 10. Summary and conclusions and some possible future scenarios.

Editorial Reviews

"A very impressive book.... this work is balanced, insightful, thoughtful, rigorous, valuable, lucid, a significant contribution." Human Rights and Human Welfare

"Professor Murphy has written a thoughtful, intellectually rigorous, readily accessible overview of the relationship between the United States and contemporary international law. This volume provides a superb starting point for those seeking to understand the role of the sole superpower in today's global legal order." Michael Byers, Duke University School of Law

"The Rule of Law provides a first-rate textbook account of the procedures and processes of domestic law that impinge on international law." Political Science Quarterly, Kenneth W. Thompson, iUniversity of West Virginia

From the Publisher

After World War II, the United States championed the creation of an international order based on legal principles. In recent decades, enthusiasm for rules-based order has decreased dramatically-to the dismay of many around the world. This book provides a useful overview of Washington's ambivalent, shifting stance toward the international rule of law. Murphy does not offer a grand theory to explain growing U.S. resistance to international legal agreements. His emphasis is on the ambiguity of international law, its unsettled status under the U.S. Constitution, and the expansion in the range of issues brought into the international legal realm. Indeed, the United States' ambivalence is less new than is the dramatic increase in the scope of international law-driven by the globalization of the world economy and the externalization of such issues as criminal law, environmental regulation, and social and political rights. These insights emerge from detailed case studies of treaty disputes relating to topics such as the use of force, arms control, the International Court of Justice, and human rights. Missing from the book is a sense of the domestic and international politics of rules-based agreements or the impact of long-term shifts in the U.S. global position. In the end, Murphy hedges his bets by offering two future scenarios: one in which U.S. adherence to international law increases and another in which it continues to decline.

Foreign Affairs