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Joyner, Christopher C. --- "Gulliver Unbound: US Foreign Policy and its Implications for International Law" [2004] NZYbkIntLaw 4; (2004) 1 New Zealand Yearbook of International Law 9

Gulliver Unbound: US Foreign Policy and its Implications for International Law

Christopher C Joyner*

I. Introduction

The Bush administration’s scepticism of multilateralism and international legal processes dominates current international attitudes toward the United States. The resultant US foreign policy produces a marked turn towards the adoption of principally unipolar strategies to deal with various international concerns. That is, a distinct feature of contemporary US foreign policy emerges as the adoption of a “neo-realist” philosophy toward international legal issues. This is not to say that the United States is reverting to a more entrenched form of realist policy akin to that of the 1940s and 1950s. Nor is it to suggest that the Bush administration has fully cast aside the neo-liberal notion that highlights the need for international law and institutions. Rather, the implications fostered by the Bush administration today intimate that international legal rules may be law, but they are law applied only to other states. Moreover, these rules will be enforced, when and where necessary, by the United States through means of its own choosing. Such a policy tends to favour unilateral or bilateral mechanisms. It tends to resist US participation in, and support for, multilateral treaty regimes that address global problems in ways that cannot be controlled by the United States.

The so-called “unilateralist” policies practiced by the Bush Administration focus squarely on the unwillingness of the United States government to engage in the making or facilitating of international agreements to resolve legal issues. The single-mindedness of this pattern of US foreign policy over the past two years has provoked great consternation within the international community, particularly throughout Europe. Nearly a score of specific issues can be chronicled as contributing to this impression of unilateralism since the Bush administration entered office in January 2001. Understanding these concerns, this study aims to accomplish three main objectives. First, it undertakes an analytical survey of the various issues and US attitudes that gave rise to the pervasive criticism that US foreign policy over the past two years is unilateral in its mission. Second, the study seeks to examine the extent to which this pattern of US foreign policymaking affects the progressive development of international legal rules. And third, some conclusions are offered on the significance of contemporary US unilateralism for the viability of international law.

II. Dimensions of US Unilateralism

United States’ unilateralism during the last two years is both multidimensional and multipurpose. In this regard, patterns of US unilateralism assume the form of American objections to certain international agreements or legal issues that fall into any of four fundamental dimensions of perceived US national interests: (1) issues that appear to produce adverse economic impacts; (2) issues that may generate negative social ramifications; (3) issues that project potential political repercussions; and (4) issues that seem to produce adverse national security implications. In so doing, US policy has overtly opposed (often alone or with very few supporters) a variety of international legal issues ranging from low-intensity efforts to regulate offshore tax havens, tobacco advertising and small arms sales, to high saliency concerns such as the need to limit on greenhouse gases, support an international criminal court, and re-define accepted norms of lawful self-defense.

III. The Economic Dimension

Several examples highlight US unilateralism fuelled by economic considerations. Perhaps most outstanding has been the Bush administration’s policy position toward the environment, in particular its rejection of the need to impose restrictions on greenhouse gas emissions that contribute to global warming. In March 2001, President Bush declared the Kyoto Protocol to the Climate Change Convention,1 which was signed by the United States in 1998, “dead”. To punctuate that position, in November 2001 the Bush administration attended but did not participate in multilateral negotiations in Marrakech, Morocco that were aimed at revising the accord down to a final acceptable text.2 This treaty, negotiated by more than 100 states over a decade, calls for the 38 largest industrial nations to reduce their emissions of greenhouse gases by 2012 to 5.2 percent below the levels in 1990. Under the Kyoto Protocol, the US would have to cut its carbon dioxide emissions seven percent below 1990 levels between 2008 and 2012. Carbon dioxide is the most prevalent greenhouse gas in the atmosphere, and the United States accounts for 25 percent of total world emissions. The Bush administration in February 2002 presented its climate change plan, called “The Clear Skies Initiative”, and called for voluntary measures to reduce the growth rate of US carbon dioxide emissions.3 The administration also released a proposal requiring power plants to reduce emissions of mercury, nitrogen oxides and sulphur dioxide. The climate plan is in sharp contrast to the Protocol, which sets mandatory targets and timetables for cutting emissions of gases that cause global warming. The Bush plan sees the United States reducing its “greenhouse gas intensity” 18 percent over the next 10 years.4 The Bush administration feels the Kyoto Protocol would present too many strains on the US economy and is unfair when developing nations, such as China and India, are only required to reduce emissions voluntarily. By taking the decision to unilaterally pull out of the pact because it would damage the US economy, the Bush administration demonstrated its commitment to shun multilateral solutions to global problems.5

The United States is by far the largest producer of greenhouse gases, both in per capita and in total. The average American consumes twice as much energy as the average European, and the emission of greenhouse gases in the United States is nearly double that of Europe. In fact, the United States produces one-third of developed countries’ greenhouse emissions. European leaders are particularly outraged by the Bush administration’s abrupt decision to abandon the treaty on global warming. Europeans are angry because the United States seems oblivious to widespread environmental concerns that affect much of Europe. Moreover, they are frustrated that the United States alone, by virtue of its size, can undermine multilateral agreements negotiated by more than 100 states.6

Related to this, the United States formally objected to international efforts to promote cleaner energy policies. In July 2001, the Bush administration demonstrated its opposition to an international plan to phase out fossil fuels subsidies and increase financing for non-polluting energy sources worldwide. The Group of 8 industrial nations issued a report calling for rich nations to assist one billion people around the world get power from renewable energy sources, such as wind, water and the sun. The United States voiced opposition to the proposal on grounds that the marketplace, rather than the government, should decide how rapidly renewable energy sources are adapted globally. Critics countered that the real motive for US opposition was the Bush administration’s desire to protect the interest of oil and gas companies over concerns about global warming.7

The Bush administration found fault in international efforts intended to reduce tax havens and eliminate transnational money laundering activities. In May 2001 the United States refused to participate in talks sponsored by the Organisation for Economic Cooperation and Development (OECD) in Paris concerning ways to crack down on offshore and other tax and money-laundering havens. In May 2001, the Bush administration indicated that it would work to curb an international effort to crack down on tax havens and money laundering. The rationale for this reversal of US policy engineered by the Clinton administration was the effort would lead to higher domestic taxes. That is, if tax havens were forced to disclose this information, it would ease tax collection from nationals who have such accounts abroad. All countries would then have less incentive to keep domestic tax rates low, which are used to dissuade nationals from resorting to foreign accounts. The US position also maintains that it does not support multilateral efforts to dictate to any state what its own tax rates or tax system should be, nor to harmonize world tax systems.8 Conservatives and free market advocates argue that each state has a right to sovereignty over their own tax policy and accuse the proposed OECD crackdown on tax havens of being an attempt to create a global tax cartel to maintain high taxes in Europe, the United States and Japan.9 The 30-nation OECD is promoting the “Harmful Tax Competition” initiative, and the absence of the United States would effectively undermine what was becoming a successful campaign.10 The OECD effort, ongoing since its Financial Action Task Force was set up in 1989, is designed to target money laundering and tax havens such as Cayman, Bermuda, the Bahamas, Nauru, Panama and Liechtenstein that help foreign nationals evade taxes in their home countries. At least 35 foreign states were targeted for failing to exchange information, provide transparency about foreign holdings or give non-resident investors preferential treatment.11

Smoking may be hazardous to international health, but not to the US economy. The Bush administration acted accordingly. In July 2002, the World Health Organisation released the draft text of a groundbreaking international tobacco control treaty that would ban use of terms such as “light” or “mild” cigarettes, end tobacco sponsorship of sporting events, and impose strict curbs on tobacco advertising and promotion. This Framework Convention on Tobacco Control12 was negotiated as part of the World Health Organisation’s campaign to curb smoking worldwide. The Organisation’s 191 members are negotiating this anti-tobacco pact, hopefully to be opened for signature at its annual meeting in May 2003. But the Bush administration has actively sought to undermine many of the strictest proposals, particularly a mandatory advertising ban on grounds that it violates the constitutional right of free speech. The Bush administration is caving in to the powerful tobacco lobby by blocking progress on the treaty negotiations. US tobacco firms supply nearly 6 trillion cigarettes, or about one fifth of all those smoked worldwide, making the US the chief cigarette exporter.13

US trade policy supplies another economic-related unilateralist policy. In March 2002, the Bush administration imposed high tariffs on steel imports to protect the domestic US steel industry. The three-year, 30 percent tax on foreign steel ostensibly would allow US companies to adjust to import competition, to restructure, and to consolidate so that they might become more competitive internationally. Such actions, referred to as ‘safeguard measures’, are permitted under Article 5 of the Agreement on Safeguards and Article VI of the General Agreement on Tariffs and Trade (GATT), which also detail the conditions to be met before such a measure is considered justified. Yet, while the administration generally supports free trade, domestic political considerations concomitantly became a prominent incentive for this reversal in US trade policy. The Bush administration calculated that imposing these tariffs would please voters and labour unions in steel-producing, presidential-election swing states like Ohio, Pennsylvania and West Virginia, as well as aid Republicans in the 2002 mid-term elections in those states.14

The international reaction predictably was anger and resentment that resulted in the European Union, Japan, South Korea, Norway, Switzerland, China, New Zealand and Brazil jointly filing a case alleging trade discrimination before the World Trade Organisation. In March 2003 the World Trade Organisation ruled that US tariffs were unjustified. According to the WTO panel report, the US did not meet the ‘safeguard’ conditions and in particular had failed to show an increase in imports — in fact, according to the complainants, there had been a decrease in steel imports in the material period. Moreover, the United States also failed to establish adequately the link between imports and injury to its domestic steel industry; and had included import figures from NAFTA countries in its injury investigation even though it excused Canada and Mexico from application of the safeguard measures. A second WTO panel reaffirmed these conclusions in July 2003. In November 2003, a final WTO appeals panel confirmed the earlier panels’ decision that the safeguard measures introduced by the United States in 2002 were unlawful and that the EU and the other seven complaints had the right of retaliation with sanctions of their own against US goods. Toward this end, the EU threatened to impose $2.2 billion of retaliatory levies on US products, including textiles, cigarettes, steel, fruits and vegetables. The EU hit list was calculated to hurt Bush politically, as it would effectively price fruit and vegetables from Florida and textiles from the Carolinas out of European markets.15

In early December 2003, the Bush administration rescinded the controversial steel tariffs. Important to realise, however, this decision was not motivated by a desire to adhere to the international legal findings repeatedly made by the WTO. Rather, it rested more on the pragmatic calculation that it was better for the US economy to avoid a trade war with the EU and Japan whose retaliatory sanctions against US products would be more politically costly than gains made in protecting the US domestic steel industry. The alienation of the auto industry in Michigan, a major consumer of imported steel, as well as citrus producers Florida and California, and textile manufacturing states such as North Carolina, eventually proved less politically acceptable than protecting US steel.16

A final economically inspired US unilateralist strategy pertains to the US-led reconstruction effort in Iraq. On December 9 2003, the Bush administration announced that companies from states that did not support the war with Iraq would not be permitted to bid on $18.6 billion in major reconstruction contracts there. This effectively shut out France, Germany, Russia and Canada from participating in the largest international reconstruction effort since the Second World War. The rationale given by Deputy Defense Secretary Paul D Wolfowitz for limiting competition to US allies in the Iraq war was to ensure the protection of the “essential security interests of the United States”. When informed that German Chancellor Gerhard Schroeder believed that the US contract decision might violate international law, President Bush responded with a derisive remark: ‘International law? I better call my lawyer’. Such sarcasm in itself is commentary on the Bush administration’s respect for international legal rules.17

The Bush administration might believe that this policy of exclusion metes out just punishment to those governments which opposed the US policy to invade Iraq, and that these reconstruction projects could provide an additional boon to US domestic economic recovery. Yet, the long-term consequences appear to be overlooked. For one, such spiteful unilateralism further alienates the United States from its traditional allies and many of the world richest and most powerful states in a period when international support for US efforts is critically needed. Second, the policy of barring non-coalition countries from reconstruction contracts could hamstring efforts to win international forgiveness of Iraq’s $120 billion debt, much of which is held by the very states that are being excluded. Finally, the brusque manner of this diplomatic rebuff does little to win backing from United Nations or other influential governments for the Bush administration’s plan for political transition in that Arab state.18

IV. The Social Dimension

Within the social dimension, four prominent issues related to US unilateralism have surfaced. First, there is the debacle that came with the vote against the United States in the Human Rights Commission. In April 2001 the United States was not re-elected to the United Nations Human Rights Commission, making it the first time in that body’s history that the United States was not selected for inclusion on that body. Various explanations were offered for this defeat. For one, many governments disagreed with US policies on global warming, the International Criminal Court and the land mine treaty, and this vote was viewed as a way of demonstrating their displeasure and frustration at American intransigence. Another explanation points to the consternation by many foreign governments over the Bush administration’s decision to construct a missile defense system and withdraw from the 1972 Anti-Ballistic Missile Treaty. A third explanation suggests that the vote against the United States came in reaction to the Bush administration’s insistence that the Human Rights Commission reveal the truth about human rights abuses wherever they occur. This assertion is substantiated, according to administration officials, by the fact that Libya, Syria, Sierra Leone, Uganda, China and Cuba are members of the Commission. Washington’s rejection of any criticism of its ally, Israel, also may have contributed to the US defeat. Importantly, in the Human Rights Commission, the United States stood virtually alone in opposing resolutions that supported lower cost access to HIV/AIDS19 drugs, acknowledged a basic human right to adequate food, and called for a moratorium on the death penalty. There was also the failure of US diplomats to campaign for votes aggressively.20 Finally, the US unwillingness to pay off its United Nations budget arrears and the failure to appoint a UN ambassador for nearly a year did little to demonstrate US respect for the world body. This defeat followed fifteen years of the US Congress withholding dues owed to the United Nations and after having forced the UN to reduce its share of the budget from 25 to 22 percent, which was done in contravention of the UN Headquarters Agreement of 1947. Interestingly enough, payment of US back dues were approved by the US House of Representatives in October 2001 in the aftermath of the Al Qaeda terrorist attacks on New York City and Washington, DC.21 Ostensibly, this was done in order to ensure political and diplomatic support from the United Nations for the US military response against Afghanistan. The United States was re-elected to the Human Rights Commission in April 2002.

The second social issue pertains to the conference against racism that convened in 2001. The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance convened in Durban, South Africa. The conference, which brought together 163 governments and 3000 nongovernmental delegates, sought to tackle a myriad of international issues involving racism and xenophobia, including the growing problem of human trafficking, gender concerns, migration and racism, racism against indigenous peoples and how to ensure minority rights in multi-ethnic states.22 This international gathering was supposed to be a landmark event in the global struggle against discrimination by celebrating diversity and tolerance. During its proceedings, however, the conference produced telling results, but in a paradoxical way. It demonstrated that racism, xenophobia, and related prejudice are ubiquitous and entrenched to such an extent that national governments, much less the international community, have difficulty coming to grips with their challenges.23 The conference became mired in virulent anti-Israeli criticism that suggested that Israel was a racist state, which prompted Israel and the United States to walk away from the event. The United States was also put off by demands for a Western apology for slavery, unconditional debt cancellation, increased foreign aid and reparations. Before the conference even convened, however, concerns over anti-Israeli condemnation led the Bush administration to decide not to send Secretary of State Powell to the conference, which would have carried great symbolic value to delegates of colour.24 Importantly, European delegations were also split over the conference, particularly over whether a formal apology should be made for the past slave trade or if individual states should be open to lawsuits for reparations or damages.25 The Bush administration pulled out of the UN conference after failing to achieve an accord with the representatives of some Arab states who pushed a controversial resolution equating Zionism with racism. But many delegates saw the prime motive for the US walkout as a way to avoid facing the issue of reparations for slavery and colonialism.

A third social issue pertains to US unwillingness to fund the UN Population Fund. The State Department announced in mid-July 2002 that the Bush administration was ending payment of the $34 million US contribution to the UN Population Fund, which helps poorer countries with family planning and advice on population control, health and sexual matters. The countries benefiting from its aid, ranging from Burkina Faso to Zambia, have childbirth mortality rates of 500 to 1,800 in 100,000 births. The president was responding to pressures from anti-abortionist groups to stop funding bodies that give advice on abortion. President Bush's decision, signalled on his first full working day in office last year, reintroduces a ban first imposed by Ronald Reagan in 1984, maintained by George Bush Senior, and then reversed by Bill Clinton. Anti-abortion lobbyists asserted the money would be used in China to facilitate forced abortions and sterilizations, although a US fact-finding mission found no evidence that this was so.26 The money reportedly would have prevented two million unwanted pregnancies, nearly 800,000 induced abortions, 4,700 maternal deaths, nearly 60,000 cases of serious maternal illness and more than 77,000 infant and child deaths. The European Union offered to fill the gap left by the US decision to stop funding the UN's family planning programs. In a related fourth development, the UN General Assembly convened a special session on children in September 2002 at the United Nations. The three-day conference was designed to follow up on the 1990 World Summit for Children, which adopted a plan for promoting education, reducing disease, improving health care for women and children and providing better sanitation and food supplies. More than 100 national delegations attended, but the United States did not. During the preparatory negotiations, the United States consistently sought to eliminate or minimise references to the Convention on the Rights of the Child27 in the Declaration and Plan of Action28 and refused to accept language that refers to the Convention as the primary international standard for the promotion and protection of children's rights. The US also sought to remove references to the “rights” of children, preferring language that supported the “well-being” of children. Moreover, the United States worked to frustrate provisions that would provide adolescents with sexual and reproductive health education and services. It opposed the inclusion in conference documents of the word “services” related to sexual and reproductive health programs, arguing that the word is code for “abortion”.29 Incredibly, in 2003 the United States and Somalia remain the only two states not party to the Convention on the Rights of the Child.30

IV. The Political Dimension

While politics certainly underlies all these unilateralist issues, four issue positions stand out for their overt political character. The first concerns efforts by the United States to circumvent the legitimacy of the newly established International Criminal Court. The Convention for an International Criminal Court (ICC)31 was debated and drafted over more than four decades. On July 17, 1998, an international conference in Rome voted 120-7 to establish an ICC that would bring to justice soldiers and political leaders charged with war crimes, crimes against humanity and genocide. Historically the pre-eminent supporter of such a tribunal, the United States voted in opposition to the Statute of the convention, while most of the international community approved it.32 Just before leaving office, President Clinton signed the ICC Statute in late December 2000.33 On May 6, 2002, the Bush administration announced that it was renouncing US signature (ie “unsigning”) on the ICC instrument. In June the administration vetoed in the Security Council the continuation of the UN peacekeeping force in Bosnia in an effort to obtain permanent immunity for US troops in UN peacekeeping operations.

Since the ICC’s entry into force in July 2002, the Bush administration has actively pressured governments worldwide to exempt from ICC jurisdiction any American forces participating in UN peacekeeping operations. Since then, to gain immunity for US troops stationed abroad, the United States has launched a major campaign to persuade other nations to sign similar bilateral agreement not to extradite each other’s nationals to “any international tribunal without the other country’s express consent”. These “impunity agreements” (also referred to as Article 98 agreements) have thus far been signed with India, Romania, El Salvador, Israel, East Timor, the Marshall Islands, Tajikistan, Palau, Mauritania, the Dominican Republic, Uzbekistan, Honduras, Afghanistan, Micronesia, Gambia and Georgia. Further, in August 2002, President Bush signed into law the American Servicemembers Protection Act of 2002,34 a piece of legislation that is specifically designed to insulate Americans from the jurisdiction of the ICC.35 The legislation authorizes the use of military force to liberate any American or citizen of a US-allied state being held by the Court.36 In addition, the new law provides that US military assistance be withdrawn from states which ratify the ICC and restricts participation of US forces from UN peacekeeping operations unless the UN obtains immunity from prosecution.37 In sum, the American position asserts that it must protect 200,000 troops permanently deployed in 40 other states from “politically motivated charges”. The Bush administration maintains that given US special global responsibilities, no proceedings can be permitted against American soldiers or clandestine agents unless the US government agrees. Such an attitude implies that US government officials believe that they are above the concept of international law, unless defined and controlled by them. While it might seem incredulous, officials in the Bush administration apparently do not even consider the question of whether such war-crimes charges against Americans might on some occasions be warranted.

In a related matter, on November 13 2001, President Bush issued a presidential directive to establish military courts to deal with suspected terrorists, the first of its kind since World War Two.38 Such courts could convene in the United States or overseas, or even on ships at sea, and it would be within the power of the president to determine who should be tried. The trials could be held in secret, would not need to involve juries and could give sentences up to and including the death penalty. At the time the directive was issued, the White House described the presidential order as “an additional tool to use as he sees fit to fight the war on terrorism and bring foreign terrorists to justice”.39 The irony, of course, is that this tribunal development comes in the context of the United States maintaining persistent objections to the establishment of an independent International Criminal Court under the auspices of the United Nations.40

A second unilateralist position with high political overtones involves the Bush administration’s abrupt dismissal of South Korea’s efforts to reconcile with the North. Through his so-called “Sunshine Policy”, President Kim sought to reach out to North Korea and arrange the first-ever North-South summit, held in Pyongyang in June 2000. President Kim’s Sunshine Policy of constructive engagement made conciliatory gestures, including economic incentives, in the hope of bringing North Korea to the negotiating table. The goal of the South Korean overture was never to destabilise, let alone displace the North Korean regime. On the contrary, the policy was aimed at creating an atmosphere of trust, an essential precondition for normalizing relations between the two Korean states. For these achievements President Kim received the 2000 Nobel Peace Prize.

The Bush administration became irritated with Seoul in 2001 for striving so hard for reconciliation and compromising in its dealings with Pyongyang, while seemingly ignoring dictator Kim Jong-il’s nuclear ambitions. For hard-liners in the Bush Administration, the confession in 2002 by North Korea that it possessed nuclear warheads vindicates its inclusion of North Korea alongside Iraq and Iran in the axis of evil’s rogue gallery. It also provided the rationale for getting tough with the North and taking the stand to deprive it of weapons of mass destruction once and for all. Seoul’s Sunshine Policy became badly misaligned with the more hawkish US strategy towards North Korea that was introduced when President Bush came to power in 2001. The second criticism against the Sunshine Policy stresses that it is a Korean version of appeasement. It alleges that South Korea is making a series of unilateral concessions while North Korea attempts to manipulate South Korea by its whims and schemes. But these accusations don’t tell the geopolitical story.41 The inclusion by President Bush of North Korea in his 2002 State of the Union Speech as a member of the “axis of evil” threw cold water on the Sunshine Policy and seriously strained US relations with the South Korean government. This shift in US policy also contributed to the victory of Roh Moo Hyun, who campaigned against US policies in the 2002 Korean presidential elections.

Yet, to many observers in the region, the Bush administration's policy of ostracising the North seems aimed at justifying its expansive military plans in the region rather than actually reducing the threat from North Korea. Since coming into office, the Bush strategy toward North Korea has appeared to be three-pronged: First, US diplomacy would strive to stymie negotiations between Seoul and Pyongyang; second, attempts would be taken to undermine the engagement policy of President Kim while supporting his conservative adversaries; and third, efforts would be made to exacerbate South Korean fears of the North's military threat. The overall objective underlying this strategy was to build missile defenses in and around the Korean peninsula, even though such defenses could never defend Seoul from a North Korean missile attack only three flight minutes away.42 The political upshot of the Bush administration’s policy toward South Korea has reinforced the general impression that the administration is not interested in listening too closely to concerns of its allies, on diplomatic as well as political issues. The options for allies seemed clear: It must be the US way, or no way.

A third unilateralist political issue arose in mid-2002 over proposed international monitoring arrangements of torture and conditions in national prison facilities. In July 2002, the United States attempted to block a vote in the UN Economic and Social Council on a protocol to the 1987 International Convention Against Torture,43 because it objected to a proposal to establish an independent prisons inspection system. The protocol, adopted in April 2002 by the UN Human Rights Commission,44 establishes national and international inspectorates to ensure that prisoners are not being tortured, through visits to places of detention. The United Sates opposed the notion, contending that the fourth amendment to the US Constitution prohibits “unreasonable searches and seizures”, which thus precludes foreign inspectors from going where they please. While it may be true that unrestricted authority is not compatible with the need for checks and balances in the US legal system, the more credible rationale for American opposition is that the US Defense Department rejects the idea of opening up for international inspection the treatment of terror suspects it has detained. In the post-9/11 era, the US Government is especially sensitive about the issue because of potential demands for access to the detention camp at the US naval base in Guantanamo, Cuba, where nearly 600 detainees suspected of being Al Qaeda members and others seized in Afghanistan are being held.45 Among the other nine states joining the United States in opposition against the protocol were Iran, Cuba, Syria, India, Saudi Arabia and Libya.46

The most intense criticism of US unilateralism comes within the area of national security concerns. This fourth dimension contains several notable examples of the Bush administration’s willingness to go it alone, irrespective of what our allies or adversaries think. An early example is found in the Comprehensive Test Ban Treaty (CTBT),47 which bars all nuclear testing and explosions even for peaceful uses. The agreement was signed by the Clinton administration in 1996, but was defeated in the Senate ratification process that was pushed forward in 1999 by Senate Republicans. While the Clinton administration indicated that it would adhere to the ban, even though the Senate voted against ratification, the Bush administration has indicated that it would not be bound by that declaration. While the 1996 Comprehensive Test Ban Treaty has been signed by 161 countries and ratified by 85, it has not yet entered into force because 44 nuclear capable states must ratify it. Besides the United States, the other outstanding nuclear-capable non-parties include India, Pakistan, China, Israel and North Korea.48

In a related development, in November 2001, the United States boycotted a UN conference convened by Secretary General Kofi Annan to encourage governments to ratify the global treaty banning nuclear weapons tests. Interestingly enough, and without much political fallout, the United States snubbed its allies at the very time it was trying to build its multilateral coalition to combat terrorism.49

Still another early security-related matter that the Bush administration inherited is the Landmines Convention.50 In December 1997 in Ottawa, Canada, 122 states pledged to ban the use, production or shipment of anti-personnel land mines. The United States, along with Russia, China, India, Pakistan, Iran, Iraq, Vietnam, Egypt and Turkey, refused to sign. The rationale for the Clinton administration’s rejection of the agreement was the need to protect South Korea against North Korea’s massive military advantage. Although the US has destroyed many of their landmines, about one million are still in use, mainly in Korea. The United States maintains that US troops will be imperilled if anti-personnel landmines are banned. Some one million landmines are buried along the 151 mile-long frontier and are viewed as an early warning system. On March 1, 1999, the landmine mine treaty entered into legal force, faster than any disarmament convention ever concluded. States parties are required to destroy their stockpiles of anti-personnel land mines within four years and to clear their territory of planted mines within ten years. The United States indicated in June 1998 that it would join the treaty banning landmines by 2006, provided the Pentagon can develop suitable alternatives by then.51 Since 1997, more than 14 million stockpiled land mines have been destroyed. Nevertheless, in August 2001 the Bush administration adopted the recommendation of the Department of Defense that the US abandon its commitment to join the Landmine Treaty in 2006 and to abandon parts of the program to develop alternatives to landmines.52

Still another unilateralist security-related matter surfaced in July 2001 when the United States walked out of a London conference convened to discuss a 1994 protocol for strengthening the 1972 Biological and Toxin Weapons Convention (to which 144 states are party, including the United States).53 John Bolton, US Undersecretary of State, declared at that time that “the protocol is dead”, and accused Iraq, Iran, North Korea, Libya, Sudan and Syria of violating the convention, but without offering any specific evidence of such breaches. The United States asserted that it rejected the enforcement protocol on grounds that it was not enforceable. Instead of accepting the Protocol in any form, the US proposed a range of measures for the US and a few allies (the Australia group) to police the rest of the world.54 Other governments suggested that the actual purpose of the United States in destroying this valuable cornerstone was to permit a stratification of biological weapons into “good” and “bad” categories. This would permit the United States (and other countries) to continue work on a number of biological weapons under development. Among these are anti-crop fungi (“Agent Green”), Pentagon work on so-called “non-lethal weapons” to control (in the US military's words) “potentially hostile civilians”, and the US Navy's genetically modified superbugs that consume materials, such as plastics, jet fuel, rubber and asphalt.

Another military issue — the regulation of small arms sales — generated considerable controversy over the US unilateralist position. In July 2001 the UN Conference on the Illicit Trade in Small Arms and Light Weapons55 convened to curb and eliminate the illicit trafficking in small arms and light weapons. Plans aim at restricting the $1 billion international trade in small arms and military assault weapons. The United Nations estimates that there are more than 500 million small arms in the world, including assault rifles, machine guns, grenade launchers and pistols.56 These weapons are used to kill at least half a million people each year, mostly in developing countries plagued by war zones like Sierra Leone, Congo, Angola, Sri Lanka and Colombia. Of the 49 major conflicts fought during the 1990s, small arms were used in 46 of them, causing four million deaths. Sadly, 90 percent of the casualties were civilians. The aim of the UN conference was to produce a modest set of global standards and tracing methods that could help curtail the illicit flow of weapons that magnify civil wars, arm child soldiers and militia gangs, and expand the power of organised crime.57

The Bush administration, sympathetic with the views of the National Rifle Association, claimed that international curbs on small arms trafficking represent an attempt by the United Nations to interfere with American domestic firearms policy. US undersecretary of state for arms control, John Bolton, made it clear at the opening session that the Bush administration would oppose any move that could threaten citizens’ right to bear arms. This includes restrictions that might be placed on the manufacture and sale of military weapons, such as automatic assault rifles, machine guns, mortars, grenade launchers and portable rocket launchers. The irony here is that while the United States is the world’s leading arms exporter, it is the only government that requires official authorization for dealers engaged in arms brokering and American laws restricting the export of such weapons are models for international standards.58 On July 21, 2001, representatives from 140 states reached agreement on a voluntary pact to curb the illegal flow of millions of small arms to the world’s war zones. The United States angered other governments by blocking agreements to regulate civilian ownership of military weapons and to restrict aid to rebel movements. In addition, the United States was the only state in the General Assembly to oppose the UN Agreement to Curb the International Flow of Illicit Small Arms. As adopted, this agreement obligates governments to require arms manufactures to compile records on small arms sales and mark weapons such that they can be traced to determine their origin on the black market.59

One of the most visible US unilateralist national security efforts was the Bush administration’s withdrawal from the 1972 Anti-Ballistic Missile (ABM) Treaty with the former Soviet Union/Russia.60 In December 2001, the United States officially gave notice of withdrawal from the 1972 ABM Treaty, which essentially killed the landmark agreement.61 The ABM pact, negotiated with the former Soviet Union during the Cold War, specifically forbids testing and deployment of a ballistic missile defense system. Contrary to these prohibitions, President Bush believes such a system is critical for US defense in the 21st century, especially to counter certain rogue states such as Iran, Iraq and North Korea, which might acquire nuclear-armed ballistic missiles. Throughout 2001 he advocated scrapping the ABM treaty, calling it a relic from a much different time.62 On June 13 2002, the US withdrawal took effect. This marked the first time in the nuclear era that the United States renounced a major arms control agreement.

General concern remains that the US decision to withdraw from the 1972 ABM Treaty with Russia could threaten international stability by freeing other states to abandon peace and disarmament agreements, thereby undermining the spirit of international cooperation and trust on which they are based. The likely costs of pulling out of the treaty might suggest to other states that even if they were to take risks to help cultivate long-term stability, the United States will take a narrow view of its national interests and ignore the security needs of its allies. The obvious consequences are that others will feel to act without regard to US interests. The Bush administration opted to withdraw from the 1972 ABM Treaty, which limits the testing and deployment of strategic missile defenses, in order to accommodate development of a National Missile Defense system. The ABM Treaty was about constraints. Their view was clear: There was no way to test, much less deploy, an effective missile defense system without violating its terms. Absent the ability to develop a missile shield, the United States remains vulnerable to rogue forces (such as North Korea), which might be capable of launching nuclear missile, or chemical and biological weapons of mass destruction. To protect against this, the US must conduct missile tests that would violate the treaty. Better politically and legally not to be bound by the treaty.63

The demise of the ABM Treaty is not likely to change the strategic balance between Russia and the United States. Even so, governments that do not respect their treaty obligations cannot expect other governments to show much confidence in negotiating and signing other agreements with them. The Bush administration also revealed its willingness to scuttle a three decades-old international agreement — the first time the United States ever withdrew from a nuclear arms accord. Why was the United States so insistent on withdrawal? The answer is found in the Bush administration’s desire to begin constructing in June 2002 a special ABM testing site in Alaska, an action that would violate the treaty. All this said, the point should not be lost that the United States did pursue the lawful course for ending the pact — withdrawal according to provisions in the treaty,64 as opposed to outright abrogation.

The international security stakes escalated in late 2002 with the Bush administration’s decision to act militarily against the Iraqi regime after being frustrated by ten years of UN inspections. The United States in August 2002 embarked on a unilateral initiative to invade Iraq, driven by the belief that Saddam Hussein has amassed weapons of mass destruction and intends to use them against the United States, or give them to terrorist groups.65 The passage in October 2002 of United States congressional resolutions authorizing military action against Iraq gave the President his war powers and put greater pressure on the UN Security Council to negotiate a resolution authorizing resumption of unconditional, unfettered on-site UN inspection of any Iraqi facilitates.66 The Bush administration insisted that the UN Security Council resolve to use force if Baghdad should fail to comply with inspections, and Congress in effect endorsed the threat that Washington would lead an attack if the United Nations does not. The upshot from this US pressure was UN Security Council Resolution 1441, which provided that Iraq was in material breach for its past uncooperative behaviour and gave Saddam Hussein a final opportunity to comply with onsite inspections, or face “serious consequences”.67 The United States stepped up its military preparations for another Gulf war, albeit without publicly providing compelling evidence of a direct threat from Iraq. While most members of the Security Council (and the international community) agree that in-depth UN inspections of Iraq assumed a matter of urgency, they were less convinced that frustrated inspections amount to a legal rationale for the unilateral use of force against that country.

In tandem with this strategy in mid-2002 was the Bush administration’s attempt to convert US self-defense into a broad doctrine of anticipatory self-defense that might justify unilateral pre-emptive strikes against Iraq. On June 1 2002, at West Point, President Bush set forth “pre-emptive self-defense” as a new doctrine for US security policy.68 The successful strategies of the Cold War era, he declared, are ill suited to national defense in the 21st century. Deterrence and containment will not dissuade terrorists or dictators possessing weapons of mass destruction. The United States, he contended, cannot afford to wait until it is attacked. Given today's circumstances, Americans must be ready to take “pre-emptive action” to defend their country.69 On August 26, Vice President Cheney escalated the new doctrine by applying it to Iraq. Saddam Hussein, he declared, is bolstering Iraq’s chemical and biological capabilities and he is aggressively pursuing development of nuclear weapons. Given these impending threats, he concluded, “risks of inaction are far greater than the risks of action”.70 That may seem logical, but as a party to the United Nations Charter, the United States, like all states, is obligated to abide by the principles of international law that explicitly govern under what conditions governments may lawfully resort to armed force abroad. All of these conditions require the authority of the Security Council, either through an invocation of Article 51 (calling for self-defense) or a resolution adopted under Chapter VII of the Charter (calling for a collective security action). President Bush's case for war with Iraq became highlighted in his administration’s National Security Strategy, which was issued on September 20, 2002.71 Pre-emptive self-defense, which can be defined as the anticipatory use of force when confronting an immediate, imminent attack, has long been accepted as a legitimate and appropriate response under international law. Yet, while recognised as a valid concept under international law, anticipatory self-defense certainly is not free from controversy. Furthermore, for such pre-emptive self-defense to be asserted lawfully, the threat must be real, immediate, overwhelming, and leave no time for deliberation.72 In effect, if you see an armed attacker coming at you — really bearing down on you with malice in his eyes — you may defend yourself before the attack strikes your territory or people. In the new National Security Strategy, however, the argument is made for broadening the scope of “pre-emptive” action to include the notion of “preventive war”. Whereas a doctrine of pre-emption is legally respected and widely accepted, the lawfulness of preventive attacks is far less certain. A preventive action would permit the United States to attack some state when that state’s past practices and explicit statements suggest that it might one day pose a threat to the United States. But the actual nature of the threat does not have to be imminent, immediate or overwhelming. A doctrine of preventative war, if adopted by the Bush administration as a cardinal tenet of national security policy, would establish the “mother” of all unilateralist policies. It would invite the Bush administration to determine if, when, and where some government constituted a potential threat, and excuse a US armed attack now on the grounds that some day later that other government might strike the United States. Such a policy would be more perceptive and presumptive. It would be based on what might be anticipated to happen sometime in the future. Clearly, the administration’s position is motivated by the threats of terrorists, who are stealthy and cannot be easily deterred, as well as by the enormous dangers posed by weapons of mass destruction.73 Nonetheless, adoption of a US policy doctrine that accepts the permissibility of preventive war could provide similar rationales for other government to embark on military actions that they already wished to take against other states. Today’s international system is characterised by the relative infrequency of interstate war. Developing and promoting doctrines that endorse pre-emptive and preventive actions might do much to unravel the international legal rules already in place for governing the use of force. In sum, the Bush administration’s national security doctrine of engaging in pre-emptive strikes, coupled with launching preventive war, is seriously problematic at best. At its essence, such a doctrine seems unreasonable by allocating to the United States the sole right to claim the moral high ground with an exclusive doctrine of pre-emptive strikes against a sovereign state, without any other government having the same right to do so.74

A number of preliminary conclusions flow from these patterns of US unilateralist policy positions. One is that where relatively minor US strategic or economic interests are at stake, the Bush administration seems inclined to align its legal position with various domestic political influences, as opposed to international legal standards. This appears to be the case with small arms sales (support for the National Rifle Association) and funding the world population fund (support for anti-abortion concerns), as well as for OECD cooperation on tax havens (promote anti-tax attitudes), imposing protective steel tariffs, and putting curbs on international tobacco advertising (support for the tobacco lobby). A second conclusion suggests that where more significant US economic interests but less strategic concerns are at stake, political or diplomatic foreign policy tools are more likely to be employed. Examples reflecting this situation include US opposition to international cleaner energy supplies (support for big domestic oil and fossil fuel industries) and dealing with issues of xenophobia and racial discrimination. Third, where greater US strategic, economic and political interests are at stake, little substantive action will be taken, other than at the level of rhetoric, as with the cases of global warming, the International Criminal Court, the reconstruction of Iraq, enforcement of the germ warfare protocol, and the ban on landmines. Fourth, in the case of countries considered to be “rogue states”, the wider and shifting security concerns of US foreign policy are given primacy over specific legal matters, as has been the case with Iraq and North Korea. In other words, in the conduct of foreign policy towards states which are perceived as severe violators of international legal rules, legal principle tends to be trumped by ‘realpolitik’ where significant US economic, security, and strategic interests are at stake. Unilateralist issues mirroring this tendency include withdrawal from the ABM treaty, US policy toward Iraq, and promotion of a national security doctrine supporting resort to pre-emptive/preventive war against terrorist groups and rogue states.

There is no question that issues relating to international peace, worldwide trade, human rights, environmental security, democratic values and respect for the rule of law are of worldwide concern, since the maintenance of these opportunities constitutes an essential foundation for international order. These cardinal issues underscore the fact that international commitments made are matters of direct and legitimate concern to all participating states and do not belong exclusively to the internal affairs of any one state, even the global superpower. Seen from abroad, the pursuit of unilateralist positions does little to demonstrate the good faith of the United States government toward the fulfilment of these international cooperative ambitions.

V. US Foreign Policy as Legal Realism

The attitude of the Bush administration toward international issues can be described as legal realism. Since 2001 the US government has managed its foreign policy in light of three fundamental assumptions: (1) Governments are viewed as essentially rational unitary actors; (2) governments give priority to ensuring their state’s security; and (3) governments confront an international milieu that is characterised most importantly as anarchy. In these regards, constraints and opportunities created within the international system can be employed to explain the behaviour of states.75 The Bush administration, armed with these assumptions, views interstate relations through a prism of neo-realist attitudes. The contemporary international system is not one that functions through a network of international institutions and legal rules that allow states to settle their disputes without recourse to force. Rather, the Bush administration believes that states operate in a self-help world earmarked by international anarchy. Absent an international authority that offers assured protection, the United States must protect itself. This attitude equates self-help with the need for the United States to pursue unilateral, competitive policies.76 Such a penchant toward competition is reinforced by doubts about the motives and intentions of various adversaries (especially Iraq, North Korea and Iran). Intentions are uncertain, not knowable, and subject to sudden change. Thus such unclear intentions work against cooperation. The United States cannot afford to overlook the possibility that potential adversaries will use their full capabilities against them, and the Bush administration concluded they must focus on their adversaries’ capabilities instead of intentions. As a consequence, the prospects for cooperation become encumbered because the United States must be especially sensitive to how an adversary affects its current and future relative capabilities. Given its status as the post-Cold War hegemon, the United States under the Bush administration naturally prefers competitive interstate policies. Governments must rely on their own means to ensure their national security. As the most powerful state militarily, technologically, economically, politically and culturally, the United States enjoys obvious competitive advantages in all these dimensions of its foreign policy dealings, including those involving the creation and adoption of new international legal rules.

The United States, as the acknowledged hegemonic power in multilateral legal negotiations, has not genuinely sought, in its contemporary foreign policy dealings, compromise solutions on problematic legal issues through cooperative negotiations. Rather, the Bush government aims to assert policy positions that enable the United States to preserve its power and assert preponderant influence throughout the international community. Political authority and economic wealth seem valued more than international agreement because they furnish the means to ensure US hegemony in a competitive international system. The Bush administration’s reluctance to relinquish power through compromise and legal agreement demonstrates the high currency that its policy makers place on individual state sovereignty and independence, as opposed to multilateral considerations and interdependence.

Ultimately, the principal goal of the Bush administration’s unilateralist legal policy positions is to assert prevalent American influence in international affairs. Key to attaining this ambition is defense of US sovereignty and territorial integrity through various legal dealings. In this regard, US policy positions on soft, non-security legal issues tend to be viewed through the lens of domestic political considerations. That is, the main driver of American policy positions on international legal issues is not to attain an acceptable, agreed upon negotiated multilateral instrument. Rather, it is to ensure that in the course of negotiations, these multilateral legal instruments do not run counter to the political views and interests of important domestic constituencies. If perceived as doing so, the Bush administration’s demonstrated policy preference is to withdraw from the negotiations so that these instruments will be consummated without US obligations that might adversely affect those particular constituencies. In essence, then, the Bush administration’s validation efforts seek to pursue negotiating positions intended to bolster and protect the status of domestic groups. By way of example, since 2001 politically conservative domestic constituencies exerted influence on US policy positions against various legal issues, among them international efforts to restrict advertising of tobacco products, counter protective steel tariffs, international trade in small arms, protection of the rights of the child, as well as aid to the World Population Fund.

American attitudes toward issues involving US national security run a different course. Hard, security-related legal issues are more prone to be treated by the Bush administration in ways that might secure a preponderance of — or at least a balance of — military power relative to perceived threats. This strategy clearly can be seen in the Bush decision to withdraw from the ABM treaty to counter conceivable missile threats from rogue states and China. Similarly, the administration formulated the doctrine of preventive war to contend with the perceived threat of Iraq’s possession of weapons of mass destruction that some time in the future presumably might be used against the United States. Similarly, US efforts to deal with North Korea’s emerging nuclear weapons threat mirror this balance-of-power-strategy, as does the Bush administration’s policy position of rejecting reconsideration of acceding to the 1997 Landmines Convention. Finally, the Bush administration’s strategy of pre-emptive legal balancing is well illustrated in its campaign to undercut the functional credibility of the International Criminal Court through “Article 98 agreements” in order to preclude US soldiers from being extradited to The Hague.

Since 2001, American policies toward international legal issues have been guided by attitudes of pragmatism, exceptionalism and messianism, all of which reinforce the neo-realist mind-set of the Bush administration’s policy makers. There is no question that since entering office, the Bush administration has taken highly pragmatic policy attitudes toward international legal issues. Foreign policies are evaluated based on whether they solve the problem, rather than on what is legally permissible, ethically required, or even morally acceptable. The United States must pursue and protect its national interests, including the use of force if deemed necessary, in a prudent manner. In short, the Bush administration advocates that the US government should advance military security and economic prosperity as its chief foreign policy objectives to best serve US national interests. Legal considerations are relegated to a secondary role, save in so far as they contribute to military security and economic objectives. Consequently, when such realist tendencies occur, the likelihood is that US foreign policy decisions might compromise or circumvent international legal rules for the sake of obtaining perceived direct political gains. To attain greater short-term benefits for US national interests, a strictly pragmatic approach might conclude that international legal commitments should be short-circuited or overridden. Put bluntly, unilateralist political ambitions are given higher value than multilateral legal obligations.

Attainment by the United States of the status of lone superpower brought with it a sense of exceptionalism to the Bush administration. The premise is that the United States and its political system are admired and thought special by the rest of the world. That is, American policy makers believe that the profound success of private free-enterprise capitalism and democratic principles in the United States make their country and its people the envy of the rest of the world. The United States, as the most economically and politically successful state in history, is thought superior to all other states. Moreover, such exceptionalist beliefs presume that the United States carries a certain moral responsibility for the fate of peoples in foreign countries. As such, the Bush administration advocates international activism and interventionism in a wide variety of international institutions, but they do not concede to any clear, universally accepted international legal code for foreign policy behaviour. Their chief belief is that the United States should principally advance American values in its foreign policy.

Belief in such American exceptionalism breeds US unilateralist attitudes in foreign affairs. Integral to the Bush administration’s belief that their country’s experience has produced the best social and political order in history is the predilection of the United States to act alone in addressing foreign policy concerns. This go-it-alone tendency in US foreign policy represents the rejection of the balance-of-power approach for promoting national security in international relations. This may come as little surprise, especially given that since becoming the hegemonic power, the United States confronts no counter-balancer. Hence, the Bush administration’s self-perceived virtuosity in world affairs tends to become exaggerated and generates increased tendencies to engage in more acts of unilateralism in foreign relations and in how it perceives international legal issues.

Still a third facet of contemporary American self-virtuosity arises in the tendency of US policy makers to engage in messianism abroad. The Bush administration’s foreign policy sometimes takes up crusade-like causes for ends that are perceived as noble and just. US policy makers conclude that they must bring the benefits of American ideals and institutions to other less fortunate peoples. Such feelings blend the traits of the American self-image of political, moral and ideological superiority to produce within American policy makers a tendency to engage in messianic campaigns. For example, the Bush administration undertook efforts in 2003 to install a democracy in Iraq under the premise of establishing a model governmental system of all Arab states. Another example is the Bush administration’s ongoing prosecution of a war against global terrorism to make the world (especially the United States) a safer place for democracies. The point here is this: There emerges a missionary-like compulsion in contemporary US foreign policy ambitions to remake the world in the American image, to establish models of governance grounded in American values and democratic institutions, by force if necessary. Such attitudes can foster a sense of paternalism. More ominously, they breed resentment from other societies who see the United States as attempting to impose its political values and cultural mores upon them, irrespective of what international legal rules might assert. That seems a high price to pay in an increasingly interdependent global community.

VI. US Hegemony and the Rule of Law

The United States entered the 21st century as the world’s pre-eminent power, which produced a sense of euphoria for contemporary American foreign policy. Clearly the decline in tensions from US-Soviet rivalry during the Cold War and the subsequent emergence of the United States as the sole superpower are welcome developments. Even so, new challenges have arisen to make international relations far more dangerous and uncertain. The rise of transnational terrorism, the proliferation of weapons of mass destruction, the threats posed by man-made destruction of our planet, and severe health-related concerns such as HIV/AIDS and SARS77 must be addressed through international cooperation. Even so, US policy makers have yet to articulate an overarching grand strategy for dealing with such serious problems of transnational and even global scope. Perhaps more distressing, since 2001 the inclination of the US government to retreat from supporting global involvement or international collaboration to solve military, economic, environmental, human rights or health-related problems the world community at large has left the United States more isolated. For issues where new international legal instruments and multilateral cooperation are called for, American foreign policy has been typified by unipolar positions and narrow self-interests. Even more distasteful, these policies of ad hocism appear driven all too often by an arrogance that offends American friends and allies.

Today, globalisation — which can be defined as the penetration of economic, political, social and cultural relations across borders — radically alters the context of US foreign policy. As borders become permeable, government leaders are learning that their ability to control the form and flow of transactions that shape the social and economic well being of their peoples is severely constrained. Consequently, they must realise that new international legal rules are increasingly necessary to promote greater regularity of behaviour for the increasingly complicated nexus of transnational activities and the unceasing development of new technologies. It may be that globalisation cannot be regulated. If so, its ways and means must at least be proscribed through international rules, undergirded by a consensus among states. Yet, the constant resort by the United States to unilateralist policies, particularly in devising new international legal solutions intended to mitigate serious global problems, makes attaining that multilateral legal consensus all the more difficult.

If the United States can realise the common interest in such international legal rules, that government can do much to make the observance of legal rules decisively more advantageous than their violation. If American diplomacy can sustain a balance of order and support legal means for producing change, it seems likely that the prospects will be substantially enhanced for these rules to become widely accepted and for new institutions to be developed to ratify that adherence. Here is the point: Habits of governments accepting and observing legal rules can contribute to greater international order and stability. Significant consequences for law observance flow from the example set by the Great Powers, especially the United States. Habits of cooperation and observance of legal rules are more likely to succeed if the major powers can work together to make them acceptable on a practical basis, so that they serve the common international interest, as opposed to serving any single state’s narrow national interest.

More than any other nation, the United States throughout the last half of the 20th century claimed special interests in and an avowed dedication to promoting international order. Since World War II, that government assumed a unique responsibility to lead the international community in demonstrating the criticality of international legal rules for maintaining international stability. Yet, self-serving unilateralist policies erode and undercut that ambition. In the aftermath of the 2003 War with Iraq, the need arises for the United States to be more conscientious about its own international conduct. There is, moreover, a genuine need for the Bush administration to reverse its tendency to frustrate multilateral rule making — which corrodes the genesis of legal norms — and to halt its inclination to reduce legal questions down to issues for diplomatic consideration or unilateral decision. Put tersely, US unilateralism depletes the prospects that international law will be observed and, over the long term, that kind of policy will produce no winner.

International legal rules work. While there is no sole arbiter or judge to enforce the law with authoritative infallibility, there is broad agreement on the content and meaning of legal rules, even in a world of diverse peoples, places and cultures. All states recognise that the observance of legal rules well serves their interest and that each violation may bring particular undesirable consequences. It is highly unusual when policy makers conclude that the advantages of breaching international legal rules outweigh those of observing the law. But it is in this context that recent US policy actions regarding the use of armed force come into question. Not only does recent US foreign policy intimate that the Bush administration will not be bound by the multilateral negotiation of new international legal rules that do not coincide strictly with perceived American interests. It also suggests that the US government is willing to manufacture new interpretations of legal rules that can be used whenever it wants, for whatever purposes it wants, against whichever state it wants. This hardly makes for greater predictability in international relations, or enhances the prospects for greater stability in world order.

The dominance of the United States in contemporary international relations is not merely a fact of crude hegemonic power. It carries legal consequences for the future that far exceed circumvention of the UN Charter and the Security Council. Given the Charter’s ambiguity in the face of new threats — especially the proliferation of weapons of mass destruction and rise of transnational terrorism — and the Security Council’s inability thus far to cope with these developments, US foreign policy is purposefully being designed to reach beyond the Charter’s framework. The Bush administration has arrogated unto itself the right not only to act in its own perceived interest, but also to set the criteria and redefine the rules for exercising what it deems to be the appropriate use of force in the common interest. In the case of the war with Iraq, US military intervention was justified not merely on the basis of self defense (Article 51), or the enforcement of sixteen previous Security Council resolutions, or the protection of human rights through humanitarian intervention. Rather, the American administration actually contended that the war was legitimised through a broadened construct that blends protecting US national security with instigating forceful regime change in Iraq, ostensibly with the aim of installing a liberal democracy there by pre-emptive strikes that led to a preventive war.

It is easy to dismiss these new legal premises as diplomatic rhetoric to mask what might be narrow US interests and imperial ambitions in the oil-rich Persian Gulf region. Yet, while the UN Charter remains relevant and still provides an important legal framework for determining what should be a lawful use of force, its controlling legal authority has been called into serious question by US state practice in Iraq. The critical issue now becomes what expectations will be accepted by the general practice of states for the rules determining the appropriate use of force  not just for the United States, but for the entire international community. If principles asserted by the Bush administration involving the use of force — particularly that of launching preventive war to counter conceivable security threats in the future — go unchallenged by other states, then the process of international norm creation can permit them to rise to the level of a new paradigm for legal rules legitimising the use of force. Irrespective of whether these new rules are consistent with the Charter framework, if the United States is widely perceived to be acting in the common interest, and little or no challenge is forthcoming from the international community to its assertions, it will in effect be making new law. The practice of states, when coupled with a dearth of objections to it from the international community, creates the impression of support by the international community. This in turn, generates a general perception of its perceived acceptance as a permissible legal rule.

The critical problem here is that such a process of norm creation lends credibility to the maxim that the selective might of a superpower can make a legal right for its actions, which can then be transformed into a legal rule. But this favourable situation for US foreign policy does not necessarily translate into the legitimate use of force by all states. It is important to realise that the purported legal principles the United States might create by its unilateral actions are not exclusive to the United States alone. If, for example, the principle of preventive war truly reflects international consensus as a desired norm, even though verified only by international silence, any government will be presumed to be able to employ that principle. It is not in the interest of the United States to have such a situation develop. International law operates on the basis of consensus, aimed expressly to promote stability and predictability among interstate relations. For such consensus to evolve, the US government must work to promote compromise and conciliation, rather than assume that because its policies support American national interests, they should be legally acceptable to the international community at large. Arrogant attitudes and hubris can only undermine support for US policies and erode the legitimacy of its actions.78

International legal rules consist of rules and obligations that prescribe the rights and duties of states in their dealings with each other. These rules predominantly stem from international agreements and the customs of states, which, over time, are accepted as binding by the international community. Occasions arise, however, when modifications of international legal rules become imperative due to shifting community values (such as protection of human rights or the need to safeguard children), the multifaceted impacts of technology (for example, the need to protect the environment or to control the proliferation of weapons of mass destruction), or to fill obvious lacunae in existing the law (for example, to suppress terrorism and to punish international criminals). It is in these broad areas that international legal rules are having the greatest saliency in their contemporary impacts. It is also in these areas that the United States seems most adamant in impeding the creation of those new legal rules.

New rules of international law traditionally emerge through a gradual process of evolution. A practice is developed among states, leading to the formation of habitual compliance, which after being recognised by the international community, is explicitly codified through written agreement or tacitly accepted through custom declared as a legal rule. Two fundamental elements thus loom as prerequisite for the emergence of an international normative rule. First, there must be evidence of practice, which may be seen as a material component. Second, there must be demonstration of acceptance, which takes on the quality of a subjective component. Given the nature of a norm’s determination, the process does not lend itself to precision in gauging exactly when some practice reaches the level of a legal rule. Moreover, no identifiable criteria or conditions have been universally adopted for norm creation, except for the general qualification that a norm-producing practice must set a sufficient foundation that induces concerned states to accept it as a legal practice. To express the legal rule-creating process in an equation format, (1) the feeling of doing one’s duty of that which is right (opinio juris sive necessitatis), when added to (2) such demonstrable state acquiescence that preponderant international consent is engendered, yields (3) the emergence of a legal rule. Critical to this process producing the successful emergence of multilateral legal rules is support by the major governments for those rules. Granted, rules may effectively materialise without Great Power consent, but the viability and acceptability of those rules might be compromised. Even if negations are conducted in good faith, the regular hesitation or refusal of the United States to accept such rules not only detracts from the law-making process: It also short-circuits the possibility that the new law will be effectively applied such that it might give rise to universally-accepted rules and norms.

The United States’ rejection or disregard of several negotiated agreements during the past three years appears to be undercutting efforts by many other states to strengthen the international rule of law. If this is so, American foreign policy in the early 21st century confronts a critical dilemma: Should US global objectives be guided by the rule of power or the rule of law?

It is true that unilateralism is not a monopoly of any US administration, or of any particular session of Congress. The United States, under Ronald Reagan, unilaterally held out from joining the 119 states that signed the epochal 1982 Law of the Sea Convention after nine years of diligent negotiations.79 Having finally won such an exclusive concession following twelve more years of talks,80 the United States came to support that treaty in 1994, though still short of becoming a party to it. The Bush administration has not yet acted on pursuing ratification of that ocean law instrument. In 1997, the Clinton administration unilaterally decided not to accept as a legal obligation the ban on anti-personnel landmines, a policy attitude that the Bush administration has likewise adopted. In the 1999, the US Senate unilaterally rejected the Comprehensive Nuclear Test-Ban Treaty, which the Clinton Administration had signed three years earlier along with 154 other countries. Like the Republican-dominated Senate, the Bush administration does not support the comprehensive test ban agreement and has expressed no intentions of seeking its ratification.

The fact remains that unilateralism reached new heights under the Bush Administration, which irks America’s allies, especially the Europeans. As the analysis above illustrates, unilateralism takes different forms. Withdrawal from collective action in producing collective goods (such as establishing control over international environmental, criminal, population or health issues) takes the form of omission. It may, on the other hand, take the form of commission, such as insisting on use of force against Iraq, withdrawal from the ABM Treaty, or preventing the attainment of guaranteed compliance for the germ warfare treaty. The bottom line, however, is that the essence of unilateralism aims to set rules for oneself that are different from the rules that govern others. The consequences from such hegemonic unilateralism may vary. The confrontation that the Bush Administration encountered in early 2003 with France and Germany in the UN Security Council and the North American Treaty Organisation are a reminder of what bitter consequences can result from America’s unilateralist approach to foreign affairs.81

Given the assumption that international legal processes alone are unlikely to contain “rogue states”, the underlying concern for the Bush administration devolves into how best to use American power and influence to deal with threats posed to US strategic interests. The strategy commonly followed is to reject participation in and agreement to international agreements and conferences, while at the same time condemn the behaviour of other states and justify the use of unilateral US legislative, judicial and executive mechanisms to enforce those policy decisions. But this kind of self-serving strategy contributes little to making international relations work more effectively or efficiently. It also suggests a key lesson: If the 21st century is characterised by the rise of so-called “comprehensive security” comprised of environmental security, economic security and human security, then global remedies to fashion political solutions and set legal standards require collective action, not unilateral self-help. The ultimate strategic lesson from recent events is that they strongly signal that the time has come for the Bush administration to shift gears toward greater use of collective action, not only on security matters, but also in foreign relations in general. Otherwise, the United States should be prepared to confront rejection on many of its foreign policy choices, even by its closest allies.

If implementation of global standards remains important to US policy makers, the fundamental question for the Bush administration becomes to determine what the most effective means are by which to narrow the distance between broadly accepted legal norms and their repeated violation in interstate transactions. While this clearly underlies the disagreement in the Security Council in February 2003 over how to deal with Iraq, it also transcends all the issues that involve US unilateralist policies. Contemporary international relations are characterised by increasing interdependence, globalisation, and cooperation among states, nations and organisations. At the same time there are occurring violent tribal conflicts, religious extremism, fundamentalism and ethnic wars in many regions of the globe. From an international perspective, the problem for US foreign policy becomes how, against the background of interfacing cultures, belief systems, political ideologies, economic disparities and deeply ingrained feelings of intolerance and mistrust, to improve and ensure effective compliance with international legal rules.problem can only be addressed by the willingness to compromise and cooperate. Pursuit of self-serving American unilateralist policies is not likely to provide the best answer.

Since entering office, the Bush administration has often rejected the need for new legal standards and rules for governing the conduct of states, as well as refused to permit international scrutiny of its own domestic situation. Other governments might perceive a certain lack of good faith on the part of a powerful state that claims to be promoting and protecting international law abroad in its foreign relations while, at the same time, remaining highly selective in what rights it elects to promote and in refusing itself to comply or cooperate with new or emerging multilateral legal regimes. Moreover, it should be remembered that international legal rules are premised on fundamental principles of state sovereignty, mutual respect, and equality that cannot be traded away according to competing policy concerns in a pragmatic calculus. The US unilateralist approach tends to treat international legal rules as a menu from which the Bush administration, prompted by domestic forces and interest groups, can choose in formulating and implementing its foreign policy. Confronted with such an overtly self-interested conception of international law, foreign governments are bound to question the real motives and legitimacy of US action. Internationally, the consequences of this approach might be far-reaching. It suggests that a hierarchy of legal rules that are created and accepted by the government of the world's lone superpower to serve its own exclusive interests will determine what legal constraints can be placed on the conduct of US foreign policy abroad. In this event, it is not difficult to see that such an approach might emasculate the universality and common understanding upon which international law depends.

Unilateralism casts into question the universal applicability of international rules and standards. At a normative level, international instruments and institutions reflect stronger legitimacy and greater objectivity in dealing with violations of legal rules. In such a legal system, all states are held accountable to the same standards. Thus, the political and national interest dimensions that are so evident in bilateral mechanisms are diminished, though not entirely eliminated. The principal concern at the international and regional levels focuses mainly on effective implementation of these legal rules. But apparent failings and the lack of enforcement capability of various UN treaty bodies and institutional actors should not be taken as proper justification for pursing unilateral or bilateral measures. It is critical to remember that international and regional institutions are only as strong as their member states are willing to make them be. If the United States — the world’s military, economic and technological superpower government — is not willing to support these institutions, and then it should not be unexpected that they will encounter difficulties. Further, if the United States intentionally works to circumvent or enfeeble legal rules to which it is obligated, it should come as no surprise that these institutions and instruments will falter in accomplishing their legal and political objectives.82 Nonetheless, it will not be the United Nations, or international organisations, or international law that fails to work. Accountability will fall to the member states, especially the Great Powers, who fail to responsibly ensure that these international rules and institutions operate effectively and efficiently.


Propelled by accelerating technological advances, the 21st century is characterised by increasing international interdependence and intensifying globalisation. These twin forces generate profound repercussions that are both constructive and destructive. Yet no single state — not even the American hyperpower — is capable of managing them alone. Consequently, legal rules and norms must be devised to coordinate state behaviour in an increasingly complex interdependent world. Herein lies a hitch, however, as the most influential member of the international community often acts unwilling, even obstructionist at times, to participate in the negotiation or acceptance of new legal rules. This attitude, of course, complicates the credibility of those new rules. Of even greater concern, when American foreign policy actively opposes and works to thwart the application of those legal rules, as in the cases of the International Criminal Court, the Kyoto Protocol, and prosecution of war with Iraq, the legitimacy of the United States’ behaviour may aptly be called into question by other members of the international community.

In the wake of the events of September 11, 2001, a key debate within the foreign policy community centred on whether the United States would abandon its unilateralist proclivities.83 It now appears clear that the answer is in the negative. While it might have been pragmatically in the national interests of the United States to organise a coalition to counter terrorism, there has been little conversion in the Bush administration to the idea of establishing new legal rules or reinforcing international institutions through multilateral forums. The Bush administration’s fundamental attitude in opposing international agreements assumes that they are unrealistic, unworkable and contrary to US interests. Likewise, such legal realism may well be viewed among US policy-makers as enhancing the public good of the international community, as well as the national interests of the United States. Yet, as the sole remaining superpower, the United States is viewed around the world with mixed emotions. There is admiration, but also resentment, envy, mistrust and anger at what so often seems to be US hubris, arrogance and a swagger attitude of “US military might makes international legal right”. The United States seems intent on pursuing its national interest in a narrowly defined way, doing what it thinks is best for itself and wanting to compel others to adapt to the US position. Not surprisingly, Europeans resent the US government when it throws its hyperpower weight around. Several legal issues in particular work to alienate Europe from the United States. The cursory ways the United States rejected the Kyoto Protocol on greenhouse gases, US reluctance to cooperate in regulating offshore tax havens, the Bush administration’s campaign against the International Criminal Court, and its willingness to discard the ABM treaty contributed to European anxieties even before September 11. The US insistence in late 2002-early 2003 on punishing Iraq by means of military force stands out even more saliently as an example of unilateralism. More significantly, the US-European confrontation that resulted in the UN Security Council in February 2003 over when to use military force against Iraq demonstrated that European resentment toward the Bush administration was real and relevant. It may be that France and Germany were opposing the Bush administration on legal principle. It is just as possible that these governments were demonstrating pique at the US government for the latter’s haughty way of dealing with its European allies, and using opportunities in the Security Council to assert their resentment.

The Bush Administration’s unilateral enforcement or rejection of evolving international norms appears susceptible to criticism on four main grounds. First, such proclivities foster a hierarchy of priorities in US foreign policy that can produce negative implications both domestically and internationally. The tendency is to accept only those rules and norms that best serve the national interests of the United States, while disregarding the views of the rest of the international community. Second, policies of unilateralism demonstrate a failure by the United States to support international participation and cooperation. While international strategies might be employed to codify the existence of legal rules, the means used to promote and implement these rules are wholly domestic and pre-eminently unilateral. This exceptionalist approach by the United States toward the acceptance or enforcement of international norms seems to undermine and weaken not only existing multilateral regimes, but also the broad normative consensus that binds together contemporary international law itself. Third, the rationale underlying unilateralism seems to reflect a misreading of why states obey (or disobey) international law. It downplays how foreign governments can often induce other states to comply with international norms.84 The point here is that unilateral enforcement or rejection of emerging norms may achieve short-term policy objectives for the United States, but will not likely bring about long-term positive results for the international community. For the United States, it seems that multilateral treaty regimes, if seriously supported and resourced, offer better alternatives for arriving at viable solutions for global problems in the long run. Finally, within the dimension of national security and military force, the promotion of US unilateralist legal positions perpetuates a flawed belief among American policy makers. It reinforces a perception that divides the world community into two camps. There are the liberal, free democratic states which make and enforce international rules, and there are the “rogue” or “outlaw” states which operate outside the permissible bounds of international law. This perception seems too simplistic, neat and convenient. The international community is more complex than that. All states cannot be conveniently lumped into the good or the bad. There are also the rich and the poor, the strong and the weak, the autocratic and the socialist, the developed and the developing. Moreover, once translated into US foreign policy initiatives, such a bipolar conception might prove detrimental to the universal legal, economic, political and social values that the United States wants to promote and protect abroad.

One can conclude that the Bush administration’s perception of world events and its resultant unilateralist policies reflect a resurgent realism. That is, the Bush policy makers perceive a world of moral, political and legal anarchy where state power and self-interest operate as the dominant variables.85 From this vantage point, military force and economic sanctions, as well as other coercive measures, become the common currency of international relations. Policy makers who hold more liberal perceptions, on the other hand, begin with the assumption that most states abide by international legal rules most of the time. The assumption supporting international legal regimes is that participant states are generally predisposed to comply with international obligations, and that international institutions can serve the public good. Given the penchant for unilateralism, the Bush administration clearly seems to fall in the realist camp.

Yet, with this in mind, there is no question that diplomats and governmental leaders in all states have invested huge amounts of time, energy and resources to preparing, drafting, negotiating and monitoring treaty obligations. Whether these processes produce legally binding obligations or soft law regimes, the overriding presumption is that a state’s freedom to act internationally is made more limited. At the same time, the expectation arises that other state parties to international instruments will be similarly constrained. In a complex era of intensifying interdependence and globalisation, national sovereignty cannot remain unbounded. Hence, in the absence of an effective global police force or judicial system, states voluntarily bind themselves to observe a vast system of international legal rules. For the most part, their compliance is induced, not coerced.86 These are the rules of the international law game, and they apply similarly to all states regardless of disparities in geographical size, demographic numbers, military power or technological capability. In the end, the unilateralist impulse in such a world legal system is not likely to well serve the international community as a whole. That is a conclusion that all states, especially the major powers, would do well to remember as the new century, with all its integrated promises and transnational dangers, continues to unfold.

* Professor of International Law, Department of Government, Georgetown University.

1 Kyoto Protocol to the United Nations Framework Convention on Climate Change, December 10 1997, Annex A, UN Doc. FCCC/CP/1997/L.7/Add.1, 37 International Legal Materials, 22.

2 See Eric Pianin, ‘160 Nations Agree to Warming Pact’ Washington Post, 11 November 2001, A10.

3 Eric Pianin, ‘Bush Unveils Global Warming Plan’ Washington Post, 15 February 2002, A9 and Charlie Coon, ‘President Bush’s Climate Change Proposal’ Heritage Foundation Web Memo 6 March 2002, <sysiwyg://66>.

4 Greenhouse gas intensity is the ratio of greenhouse gas emissions to economic output.

5 See generally Christopher C Joyner, ‘Burning International Bridges, Fuelling Global Discontent: The United States and Rejection of the Kyoto Protocol’ (July 2002) 33 Victoria University of Wellington Law Review, 27-50.

6 Roger Cohen, ‘America the Roughneck (Through Europe’s Eyes)’ New York Times, 7 May 2001, A10; Gerard Baker, ‘The Americas: Bush Heralds Era of US. Self-interest’ Financial Times (London), 24 April 2001, 9; Edmund L Andrews, ‘Bush Angers Europe by Eroding Pact on Warming’ New York Times, 1 April 2001, 3.

7 Joseph Kahn, ‘US Set to Oppose International Plan for Cleaner Energy’ New York Times, 14 July 2001, A1, col. 1.

8 The OECD has drafted a Model Tax Convention on Income and on Capital, online at <> (accessed 25 February 2003).

9 Dana Milbank, ‘US to Abandon Crackdown on Tax Havens…’ Washington Post, 11 May 2001, A29.

10 The irony here is that the US loses an estimated 70 billion in tax revenue each year because assets are concealed in offshore tax havens. ‘US, Cayman Islands Agree to Share Tax Information’ Newsday, 28 November 2001, A62.

11 George Lardner, ‘O’Neil Targets Tax Havens’ Washington Post, 19 July 2001, E13. For the OECD List of Unco-operative Tax Havens, <,2340,en_2649_201185_2082323_1_1_1_1,00.html> (accessed 13 December 2003).

12 World Health Organization, Chair’s text of a framework convention on tobacco control (Revised), WHO Doc. A/FCTC/INB6/2 (13 January 2002), online at <> .

13 See Elizabeth Olson, ‘WHO Treaty Would Ban Cigarette Ads Worldwide’ New York Times, 22 July 2002, A-7, col. 5. l; Sebastian Mallaby, ‘Trade and Trade-Offs on Tobacco’ Washington Post, 14 January 2002, A17.

14 Mike Allen and Jonathan Weisman, ‘Steel Tariffs Appear to Have Backfired on Bush’ Washington Post, 19 September, A1.

15 Andrew Osborn and David Gow, ‘Fear of trade war after US steel tariffs ruled illegal’ The Guardian, 11 November 2003, online at <,2763,1082148,00.html> (accessed 23 December 2003).

16 William Branigin, ‘Bush Administration Lifts Steel Tariffs’ Washington Post, 4 December 2003, A1.

17 Jackie Spinner, ‘Only Allies to Help with Rebuilding’ Washington Post, 10 December 2003, A1.

18 Robin Wright and Sana Milbank, ‘Bush Defends Baring Foes of War From Iraq Business’ Washington Post, 12 December 2003, A1.

19 Human Immunodeficiency Virus/ Acquired Immunodeficiency Syndrome.

20 A Kathirasen, ‘Why the US was Booted Out’ New Straits Times (Malaysia), 6 May 2001, 21; Richard Beeston and Damian Whitworth, ‘Washington’ Enemies Deliver Snub at UN’ The Times (London), 4 May 2001.

21 On 24 September 2001, the House unanimously approved legislation to provide $582 million to pay back dues to the United Nations. See Juliet Eilperin, ‘House Approves UN Payment’ Washington Post, 25 September 2001.

22 See generally General Assembly, Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, UN. Doc. A/CONF.189/12 (25 January 2002), online at <> .

23 Jane Perlez, ‘How Powell Decided to Shun Conference’ New York Times, 5 September 2001, A8.

24 Rachel L Swarns, ‘Race Talks Finally Reach Accord on Slavery and Palestinian Plight’ New York Times, 9 September 2001, 1:1.

25 Steven Erlanger, ‘The Racism Walkout: The Europeans’ New York Times, 4 September, 2001, A8; Arlene Getz, ‘They Missed a Golden Opportunity’ Newsweek, 31 August, 2001 (International ed).

26 Nicholas D Kristof, ‘Bush vs. Women’ New York Times, 16 August, 2002 (editorial).

27 The Convention on the Rights of the Child, G.A. Res. 44/25, UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A/44/49 (1989).

28 See World Declaration on the Survival, Protection and Development of Children, adopted September 30, 1990, online at <> and Plan of Action for Implementing the World Declaration on the Survival, Protection and Development of Children in the 1990s, online at <> .

29 Alan Sipress, ‘US May Skip UN Assembly Session On Children Due to Abortion Clause’ Washington Post, 28 August 2001.

30 Some critics in the United States continue to lobby heavily against ratification of the Rights of the Child Convention, claiming that the convention will undermine parental authority, interfere with parents’ ability to raise and discipline their children, and will elevate the rights of children above the rights of parents. In reality, the convention repeatedly refers to the importance of the parent-child relationship, and requires governments to respect the rights and duties of parents. The most significant contradiction between the convention and US law and practice is in relation to the death penalty. The Convention on the Rights of the Child prohibits the use of the death penalty for offences committed before the age of eighteen. However, 22 US states allow executions of juvenile offenders, and currently there are 82 juvenile offenders on death row in the United States. In the last five years, nine executions of juvenile offenders were carried out in the United States. Human Rights Watch, ‘Human Rights News’ located at <> (accessed 13 February 2003).

31 See Rome Statute of the International Criminal Court (ICC), July 17, 1998, UN Doc. A/CONF.183/9, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, and by Establishment of an International Criminal Court, G.A. Res. 105, UN GAOR, 53d Sess., UN Doc. A/RES/53/105, available at <> (last visited 25 February, 2003).

32 Only Algeria, China, Israel, Libya, Qatar, Yemen and the United States voted against the draft text.

33 William J Clinton, ‘Statement on the Rome Treaty on the International Criminal Court’ Weekly Comp. Pres. Doc. 37 (31 December 2000), 4, available at 2001 WL 14297016.

34 American Servicemembers' Protection Act of 2002, 124 Pub. L. No. 107-206, §§ 2001-2015, 116 Stat. 820, 899-909 (2002). The United States has already achieved some success in protecting its peacekeepers from the jurisdiction of the Court, and continues other efforts to enhance this protection. Furthermore, the legislation will, effective 1 July 2003, block US military aid to certain countries that are parties to the Court, unless the President waives this provision based either on US national interests or on the other country's agreement to shield US troops present in their territory from the actions of the Court. Ibid. § 2007.

35 This legislation not only prohibits cooperation with the Court, but it also restricts US participation in peacekeeping missions unless the President certifies that US troops will not risk prosecution by the Court or that US national interests justify accepting the risk of prosecution. Ibid. §§ 2004-2006.

36 The president is authorized to use “all means necessary and appropriate” to free covered persons being held by or on behalf of the Court. Ibid. § 2008.

37 The Statute exempts NATO members, major non-NATO allies, and Taiwan from losing military assistance. Ibid., § 2007(d). For a general analysis, see Colonel M Tia Johnson, ‘The American Servicemembers’ Protection Act: Protecting Whom?’ (Winter 2003) 43 Virginia Journal of International Law, 405-484.

38 Military Order of 13 November 2001 — Detention, Treatment, and Trial of Certain Noncitizens in the War against Terrorism, 66 Fed. Reg. 57,833 (13 November, 2001).

39 Ibid.

40 Compare David Cole, ‘Enemy Aliens’ (2002) 54 Stanford Law Review, 553 and Laura A Dickinson, ‘Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law’ (September 2002) 75 Southern California Law Review, 1407-1492.

41 Kim Tae Woo, ‘Twilight Time for the Sunshine Policy’ Time Asia, 4 November 2002, online at <> .

42 James Reilly, ‘Korea: US Policy Casting a Long Shadow over the Sunshine Policy’ 14 February 2002, online at <> (accessed 16 February 2003).

43 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 UNTS 85, available at < cat39.htm> (last visited 25 February 2003).

44 Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, E/CN.4/2002/WG.11 /CRP. 1, 17 January 2002, available at <> (accessed on 25 February 2003).

45 In September 2002, 598 detainees from forty-three countries were being held at Guantanamo naval base, although none has been charged with any crime. Katharine Q Seelye, ‘Guantanamo Bay Faces Sentence of Life as Permanent US Prison’ New York Times, 16 September 2002, A1.

46 Peter Ford, ‘US Finds Strange Bedfellows in UN vote on Torture’ (19 April 2002) Christian Science Monitor, 7; Barbara Crossette, ‘US Fails in Effort to Block Vote on UN Convention on Torture’ New York Times, 25 July 2002, A7, col. 5.

47 GA Res. 50/245, Annex (17 September, 1996), reprinted in International Legal Materials (1996), 1439.

48 Article XIV requires ratification by forty-four states listed in an annex to the Convention, including some longstanding firm opponents (eg, India), and others which are new (eg, the United States).

49 Colum Lynch, ‘US Boycotts Nuclear Test Ban Meeting…’ Washington Post, 12 November 2001, A06.

50 Ottawa Convention for the Banning of Anti-Personnel Landmines: Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction, opened for signature, 3 December 1997, reprinted in 36 International Legal Materials (1997), 1507.

51 Statement by the President, The White House, 19 January 2001, online at <> (accessed 25 February 2003). Some 26,000 people are killed or maimed by landmines every year, in most cases long after the reason for burying them in the first place had passed.

52 Since the Bush administration came into office, the following have been adopted as policy: The abandonment of US plans to comply with the Mine Ban Treaty by 2006; the cessation of efforts to eliminate dumb mines from the US arsenal by 2003; the termination of the search for alternatives to antipersonnel mines; and the assertion of the indefinite need for antipersonnel mines, both smart and dumb, in Korea and elsewhere, particularly in special operations. Landmines Action Alert! 29 November 2001, online at <> (accessed 25 February 2003).

53 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 UST 583, 1015 UNTS 163.

54 See generally US Department of State, Bureau of Arms Control, ‘ Fact Sheet: The Biological Weapons Convention’ 22 May 2002, online at <> .

55 Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, New York, 9-20 July 2001, UN Doc. A/CONF. 192/15.

56 Colum Lynch, ‘Nations Reach Pact on Trade of Small Arms’ Washington Post, 22 July 2001, A17.

57 ‘An American Retreat on Small Arms’ New York Times, 11 July 2001, A16, col. 1.

58 The US is the world’s leading arms dealer, with annual sales accounting for $12 billion, of which $1.2 billion is from small arms sales. Black market sales estimated to be as high as $8 billion, most of which traced to countries of former Soviet Union and Eastern Europe. Craig Nelson, ‘Making a Killing’ Sydney Morning Herald, 7 July 2001, 28

59 See Colum Lynch, ‘Nations Reach Pact on Trade of Small Arms’ Washington Post, 22 July 2001, A17 and Mark Riley, ‘US Under Fire for Blocking Curbs on Weapons Trade’ Sydney Morning Herald, 11 July 2001, 10.

60 Treaty on the Limitation of Anti-Ballistic Systems, 26 May 1972, US-USSR, 23 UST, 3435.

61 CNN, ‘US quits ABM treaty’ 14 December 2001, online at <> (accessed 25 February 2003).

62 Michael O'Hanlon, ‘Double Talk on Missile Defense’ Washington Post, 31 July 2001, A23; Susan B Glasser, ‘US To Pursue Withdrawal from ABM Pact’ Washington Post, 17 September 2001, A28.

63 John Hendren, ‘ABM Move May Bring Instability, Russian Says’ Los Angeles Times, 18 December 2001, A20; Don Kirk, ‘North Korea is Muted on ABM Pact’ New York Times, 18 December 2001, A6, col. 1.

64 Michael Wines, ‘After US Scraps ABM Treaty, Russia Rejects Curbs of Start II’ New York Times, 15 June 2002, A2, col. 3. The withdrawal provision is Article 15, which requires six months’ notification before either side can withdraw.

65 ‘In Cheney’s Words: The Administration’s Case for Removing Saddam Hussein’ New York Times, 27 August 2002, A8.

66 House Joint Resolution: Armed Forces Against Iraq: Authorizing use of military force in dealing with Iraq, 107th Congress, 2nd Session, [Report No. 107-721] 2 October 2002, online at <> (accessed 25 February 2003).

67 SC Res. 1441 (November 2002).

68 Office of the Press Secretary, The White House, ‘President Bush Delivers Graduation Speech at West Point: Remarks by the President at 2002 Graduation Exercise of the United States Military Academy’ West Point, New York, 1 June 2002, online at <> (accessed 26 February 2003).

69 Ibid.

70 See ‘Mr. Cheney on Iraq’ (editorial), Washington Post, 27 August 2002, A14, online at <> .

71 ‘The National Security Strategy of the United States of America as Asserted in the NSS’ 17 September 2003, online at <> (accessed 26 February 2003). The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction — and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.

72 The criteria for preemptive self-defense stem from the Caroline incident in 1837. See Letter from Mr Webster to Mr Fox, 24 April 24 1841, Brit. & For. State Papers 1129, 1138 (1857), cited in Louis Henkin, Richard Crawford Pugh, Oscar Schachter and Hans Smit, International Law: Cases and Materials 872 (3rd ed. 1993). For various analyses of this incident, see R Y Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law. 82; Timothy Kearley, ‘Raising the Caroline’ (1999) 17 Wisconsin International Law Journal, 325; and Martin A Rogoff and Edward Collins, ‘The Caroline Incident and the Development of International Law’ (1990) 16 Brooklyn International Law Journal, 493.

73 The NSS states it bluntly as follows: ‘We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction — weapons that can be easily concealed, delivered covertly, and used without warning’.

74 As Tom Farer aptly put it: ‘The Bush Doctrine, to the extent it implies unilateral action, cannot be contained within the UN Charter norms that have served as the framework of international relations for the past half century. It challenges a root principle of the Charter system — namely, the formal equality of states. For this Bush Doctrine purports among other things to concede to some states (eg, Israel, France and India) but not others (eg, Iran) the right to provide for their defense in whatever manner they deem fit. It also implies the erosion of other core features of national sovereignty, including exclusive authority to exercise police and judicial power within recognised frontiers. It seemingly arrogates to the United States an unfettered discretion to decide to whom other states can give asylum and whom they are obligated to prosecute or extradite. And it claims a right to intervene pre-emptively’. Tom J Farer, ‘Editorial Comment: Beyond the Charter Frame: Unilateralism or Condominium?’ (April 2002) 96 American Journal of International Law, 359, 360.

75 See Kenneth Waltz, Theory of International Politics (1979); Robert Keohane, ‘Theory of World Politics’ in Robert O. Keohane (ed), Neorealism and Its Critics (1986), 163-69; and Robert G Gilpin, ‘The Richness of the Tradition of Political Realism’ in Ibid., 301-21.

76 See Christopher Layne, ‘The Unipolar Illusion: Why New Great Powers Will Rise’ (Spring 1993) 17 International Security, 11.

77 Severe Acute Respiratory Syndrome.

78 Fredrick S Tipson, ‘Readers’ Exchange: A Letter to the President from Frederick S Tipson’ ASIL Newsletter, March/April 2003, 1, 4, 14.

79 United Nations Convention on the Law of the Sea, done at Montego Bay, December 10, 1982, entered into force 14 November 1994. 1833 UNTS. 3, online at <> (accessed 26 February 2003). In 2003 there are 142 parties to this convention.

80 See Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, online at <> (accessed 26 February 2003).

81 Karen DeYoung, ‘Officials Say UN Future At Stake in Vote; Bush Message Is That a War Is Inevitable, Diplomats Say’ Washington Post, 25 February 2003, A01.

82 See generally Edward Luck, Mixed Messages: American Politics and International Organization 1919-1999 (1999).

83 See, eg, Lawrence J Korb and Alex Tiersky, ‘The End of Unilateralism? Arms Control After September 11’ Arms Control Today, October 2001, online at <> (accessed 20 February 2003).

84 See generally Abram Chayes & Antonia Handler Chayes, The New Sovereignty - Compliance With International Regulatory Agreements (1995).

85 Jack Donnelly, Realism and International Relations (2000), 9.

86 Louis Henkin, International Law: Politics and Values (1997), 45.

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