Hedging Against Uncertainty:
US Strategy in an Interdependent World
America the Law-Abiding
Nicholas Rostow*
Introduction
It was not so long ago that most Americans took for granted that international law and American advocacy of international law were Good Things. Americans had learned the hard way that what President Washington had called "Our detached and distant situation" in his Farewell Address of 1796 was no protection against foreign threats. The two centuries since showed that detachment, even heavily defended detachment, did not guarantee American security, much less peace. Both World Wars and the development of nuclear weapons made an active diplomacy and comprehensive diplomatic agenda indispensable complements of military strength. Such an agenda was developed in the framework of law, indeed, to advance the rule of law. Our goal was and is a regime of minimum order – the order needed to prevent and avoid cataclysmic conflict and promote prosperity. Experience showed that defense of international law strengthens international peace, and thus U.S. security, and advances U.S. interests because the United States benefits from an international order grounded in law.
To those who deemed this understanding to be consistent with traditional American values and realistic as a matter of national policy, the drift away from this point of view within our Government and among our people is a matter of chagrin. The law permeates every aspect of American life. It defines who Americans are and what the country is. Our oaths of office and citizenship are to the Constitution, not to a territory or a flag. And, Article VI of the Constitution elevates international treaties to be part of "the supreme Law of the Land;" the Framers of the Constitution regarded treaties as significant national commitments and wanted to establish a norm different from Europe’s habit of making and breaking treaties at will.
Since the end of the Cold War, we have lived in a Golden Age of international law that has benefited everyone. Whether using an ATM card in Africa or Asia or Europe or the Americas or enjoying respect for human rights, international law is at work. Where war and peace are concerned, the United States historically has been at the forefront: during the Civil War, it became the first to codify international, unwritten norms into its law of armed conflict, including the treatment of prisoners; it strove to turn that domestic law into multinational treaties; it was a leader in the nineteenth century effort to ban unnecessarily harmful weapons; and it was an originator of the idea that international organizations could help governments harmonize conflicting interests and address transnational problems. The United States was a creator of the League of Nations after World War I, and the U.S. failure to join it was a principal reason for the League’s failure. Learning from that example, the United States helped shape and lead the United Nations. With its five Ambassadors and large Mission to the United Nations, the United States always has been a leading advocate of the United Nations, including reform so that the United Nations can effectively contribute to international security and human dignity. Finally, the Cold War itself was at its core a struggle over the rule of law. The demise of the Soviet Union gave government by consent of the governed to more people than ever before and constituted a repudiation of arbitrary and capricious dictatorship. It is difficult to understate the U.S. role in these global achievements. As a result, criticism of the United States as lawless is freighted with irony.
I. From There to Here
In recent years, the United States has followed international law more often than its critics allow. It exercised its legal rights in a formally correct way when it refused to become a party to the Rome Statute of the International Court, the Kyoto Protocol on climate change, and the Land Mines Convention. The failure adequately to explain these decisions allowed critics to assert, and the world to assume, the worst about U.S. motivations: the United States has been pilloried for these actions as evidence of a repudiation of international law. The United States never should have engaged in negotiations on the International Criminal Court, Climate Change, Land Mines, or other treaties once it became clear the U.S. Senate would not accept the final document emerging from multi-lateral give-and-take. Or, if the United States was determined to engage, it should have followed the example of Administrations that kept the Senate abreast of negotiations so that there were no surprises when it came time to seek advice and consent. Waiting until the negotiations were complete to reject the agreement reinforced the view that the United States sees international law as something to apply to others, not itself.
The U.S. record deserves more respect. Critics may never be satisfied with the U.S. response to the violations of law at Abu Ghraib, but the United States did investigate, prosecute, and punish. The legal case for using force against Iraq in 2003 was strong. Instead of engaging the world on the subject, the United States was content with an exposition by the State Department Legal Adviser in the American Journal of International Law. That is no substitute for leadership on the question by the President or Secretary of State. Yet it may be evidence of a broader problem: U.S. policymakers too often do not take the law seriously, and lawyers too often do not address real policy concerns in their legal analyses.
II. Onward and Upward
To repair the damage wrought by recent events, the next President has to accept that there is a problem to be addressed. Then, he can take the appropriate steps. Taking up the treatment of prisoners and issues surrounding some treaties, including those most Americans oppose and our closest allies embrace, could do much to restore our reputation as standing for the rule of law.
A. Prisoners
The U.S. treatment of prisoners since 9/11, even though improved and transformed since 2003 or 2004, has been an enduring, self-inflicted legal and political wound. Experts know that time, not coercion, is the interrogator’s most important and reliable ally; torture produces the results one wants. The next President should insist that U.S. treatment of prisoners, even those not protected by the Geneva Conventions, not only must be humane, but be seen to be humane. The war we are in against terrorists is real. The likelihood that Americans will be taken prisoner will remain with us. We should treat prisoners the way we would like Americans to be treated. We should not stoop to the level of our adversaries by using their methods.
We need principled legal distinctions where prisoners fall into different legal categories. No one has a monopoly on wisdom in this regard, and different countries are bound by different bodies of relevant law. For example, the United States is bound by The Hague and Geneva Conventions, by the customary law of war, and by its own domestic law. Most other countries are bound by the 1977 Geneva Protocols I and II in addition to the original Hague and Geneva Conventions. The United States rejected Protocol I in part because it gives prisoner-of-war status to terrorists. The next President therefore should call for a new international conversation on the issue of categorization and on the adequacy of existing legal regimes in the fight against terrorists. The goal should be agreed understanding by the end of the next presidential term in 2013.
B. Treaties
In addition to the treatment of prisoners, the United States has a treaty problem. Most of our Allies view the United States as ambivalent about treaties although it is a party to many thousands of them and for decades stood alone in the world in making treaties part of supreme, domestic law. All countries prefer treaties that suit their interests. The United States could take a step toward improving its international law reputation at least by embracing treaties that demonstrably serve its interests. One such treaty is the UN Convention on the Law of the Sea, which has languished in the Senate for more than a decade although all U.S. objections to the original text were satisfied in subsequent negotiations. The next President and Secretary of State would do well to push it through if it is not ratified before they take office.
Even without being a party, the United States obeys the Law of the Sea Convention anyway. But it does so without the guarantee that other parties will treat the United States according to the terms of the treaty. Adherence to the Convention would give the United States a stronger hand in asserting freedom of the seas and the right of innocent passage through straits and archipelagoes. By not adhering to the Convention, we impede our own ability to insist that the rule of law governs the oceans—a rule of law that reflects successful achievement of our negotiating agenda and that serves our interests as a premier naval and sea-going power. We sacrifice our ability to quickly advance the development of resources beyond 200 nautical miles (approximately 15 percent of our continental shelf). By not adhering, we do not sit on the International Seabed Authority when the Convention gives the United States, and only the United States, a permanent seat and a veto, thus recognizing and acceding to the U.S. price for participation. In any event, the International Seabed Authority’s jurisdiction is narrow, focused only on deep seabed mining, not control of the oceans, where no state has national territorial rights. Criticisms of the Convention—that it creates supra-national bodies that detract from the sovereignty of the United States (or other states), that it conveys a taxing power to the United Nations, or that it impedes U.S. national security operations on the high seas or deep sea bed—have no basis in fact. The Navy, the Coast Guard, environmental and industry groups, even the Senate, know these assertions to be false. Adherence would recognize that this Convention serves our interests and advances the rule of law.
While adherence to the Law of the Sea Convention ought to be an easy rule-of-law "win" for the United States, the International Criminal Court, the Kyoto Protocol and the Land Mines Convention require a different approach. These issues have become exhibits to support the proposition that the United States is opposed to international law and the rule of law in international affairs. While there are those who will never accept anything less than full U.S. ratification of these treaties on an "as is" basis, the next Administration still should explain to our allies and friends why we cannot accept these texts as they are and specify what changes would make them acceptable. The United States might not succeed in the way it did with the Law of the Sea Convention, but at least it will have made its case known and shown itself to be interested in international conversations and conventions on the subject. The reason for this attitude is neither sentimental nor symbolic: the problem of horrific, criminal conduct in international affairs is real; the problem of climate change is real; and the problems generated by landmines are real, too. The solutions to all these challenges require multilateral approaches. U.S. participation is essential to success, not because the United States is the "sole superpower" but because, alone for the moment, the United States is the "critical margin" required to make any international collaborative effort succeed. Restoring the reputation of the United States as a rule-of-law country means working with friends and allies, even occasionally adversaries, to strengthen existing legal norms and develop new ones that ultimately serve the interests of the entire world.
Conclusion
No one should be under the illusion that international norms, without more, will preserve our security and strengthen peace. Equally, no one should ignore the fact that norms strengthen the fabric of peace. A useful example is the UN Charter’s prohibition on the threat or use of force. Since the end of the Cold War, all have come to recognize that this standard serves their interests, not just the interests of the victorious powers of World War II. The nuclear non-proliferation regime is another example of an international law development that serves the entire international community. Despite frequent criticism of the 1968 Non-Proliferation Treaty as a failure, any new nuclear weapon state immediately encounters worldwide condemnation for becoming one. This fact testifies to the broad consensus that the world is safer with fewer rather than more nuclear weapons states. It also suggests that the United States can build up the rule of law against proliferation by reminding the international community that it understands and continues to accept the obligation to protect and if necessary defend non-nuclear weapons states against threats of intimidation by any nuclear weapons state—and certainly never to issue such threats itself. That promise is the glue of the non-proliferation regime. Reaffirming the commitment made at the UN Security Council in 1968 might go a long way toward stabilizing the non-proliferation regime and restoring the U.S. rule-of-law reputation.
The effort to revive the reputation of the United States as law-abiding is worth undertaking because the rule of law and true security are inseparable. The erosion of that reputation has not been the fault of any single party—Democratic and Republican Presidents alike have been cavalier about the law. Restoring our reputation, therefore, should be a bipartisan goal.•
Nicholas Rostow is University Counsel and Vice Chancellor for Legal Affairs University Fellow, Levin Graduate Institute of International Relations and Commerce, State University of New York.
* My most recent Federal government position was Senior Policy Adviser to the U.S. Permanent Representative to the United Nations and General Counsel to the U.S. Mission to the United Nations, 2001-05. The views expressed here are personal and do not necessarily represent the views of the U.S. Department of State, the State University of New York, or any other entity with which I have been or am associated.