Breaches of the rule of law
We treat noncompliance with disdain, and for good reason. After all, what does it mean to be a law if violation is permitted? And what does it mean to be a legal system if disobedience is tolerated? This contempt for noncompliance is such that we scorn the legal system that fails to uphold its own rules. And just as we are conditioned to treat ineffective legal systems with disdain, so too do we condemn individual acts of noncompliance. This law and order view of noncompliance is not only the ideal - it is also our own experience. In advanced national legal systems, such as that in ...
1993 Chemical Weapons Convention, the 1963 Vienna Convention on Consular Relations, and the obligation to pay annual dues under the Charter of the United Nations.
Adlai E. Stevenson at the UN: "The Charter cannot be ignored. Faith cannot be broken. Commitments must be met. Bills must be paid.” When the tide turned in the 1970s, and the General Assembly tended to vote against U.S. positions, US policy also made a U-turn on these principles.
We should not overstate this ambivalence. There are plenty of instances in which the United States publicly adopted a legal posture wholly at odds with the mainstream opinion of the world legal community.
The recent U.S. arguments that waterboarding was not “torture,” for example, or that “extraordinary rendition” was legally permissible, failed the international laugh test. In the 1999 NATO bombing campaign against Serbia to arrest the ethnic cleansing of Kosovo, the United States did not have a real legal justification to propound,since it was acting without authorization from the Security Council and without a self-defense rationale. But the point is that in most of those instances, the United States at least had something to say.
It may have only been a half-baked legal theory, a justification that rested on impressionistic “legitimacy” rather than strict “lawfulness ...
In 2005, frustrated with the inability to ensure compliance and embarrassed by repeatedly losing “slam dunk” cases in the ICJ, the United States withdrew from the “optional protocol” to the VCCR.This maneuver does not terminate U.S. participation in the whole treaty—the United States still sustains the agreement as a vital vehicle for protecting U.S. citizens who are incarcerated abroad and is still legally obligated to perform reciprocal duties—but it does remove the mechanism that allows other parties to bring suit against the United States in the ICJ. So the U.S. violations continue, but the avenue for attaining international judicial accountability is foreclosed. By the same measure, the United States can no longer protect U.S. nationals abroad by bringing its own suits in the ICJ.
A unifying theme underlies the three violations described above. They all rely upon an insidious combination of a constitutional design that automatically elevates domestic U.S. law above international law; a superpower status that enables the United States to default on treaty obligations without risking immediate meaningful adverse consequences; and a domestic legal and political culture that too often disregards international affairs and foreign opinion, with the result that our government’s violations attract little popular attention and outrage.
At this point, little can be done to remedy these three specific violations. The 2012 CWC deadline has passed, and even heroic and expensive remedial efforts today could not destroy the remaining chemical weapons much faster than the current enterprise.
The violations of Consular Relations obligations are not “inevitable,” but the Department of State can do little to compel state and local law enforcement officials to be more attentive to a treaty that they have no perceived stake in upholding.
The United States’ persistent withholding of dues to the UN and its constituent bodies is a deliberate political choice by congressional and executive leaders who profess little shame in driving the country into violation of its international legal commitments. Our perspective in reflecting upon the three indisputable violations, therefore, must be forward-looking.
International law accords a state multiple options when confronting a proposed treaty that it largely agrees with, but for which it doubts its ability to fully comply.
The state may propose key alterations during the treaty negotiations or, if the document has already been concluded, it may propound amendments. Often, it can join the treaty with “reservations,”
The violations of Consular Relations obligations are not “inevitable,” but the Department of State can do little to compel state and local law enforcement officials to be more attentive to a treaty that they have no perceived stake in upholding.
Sometimes, the wise course is to delay joining the treaty until the state can be certain of its ability to comply. If it has already joined, it might take advantage of a “withdrawal” clause to exit the accord. But in the interest of international credibility of the state and the international mandate, what it should not do is to join the treaty unconditionally, accept the full array of legal obligations, demand that other countries extend to it the promised benefits, and then undeniably
out its responsibilities. The United States has too often embarrassed itself by playing fast-and-loose with international law and there is plenty of blame to spread around. Sometimes Congress has been at fault; sometimes it was the executive branch in the lead. Sometimes the violation is deliberate; at other times it is an unintended consequence of other policies or failures. But what these three unlovely cases have in common is insufficient attention to the obligation to “faithfully execute” a treaty as “supreme law” — and that failure is both foolish and illegal.
This is not an argument that the specific costs of these particular indisputable violations are, or will soon become, unbearable. The United States is so big and powerful—and international law is so underdeveloped and ... that in the short-run a superpower can “get away with” these transgressions.
But in the long-run, lawless behavior is unsustainable; elevating domestic policy preferences above binding international legal obligations is profoundly not in the U.S. interest. Even if the feeble enforcement mechanisms of the international community cannot compel the United States to honor its commitments, the country itself should work to promote the rule of law by its deeds as well as by its rhetoric.
John Jay warned in Federalist Paper No. 64 on March 7, 1788, “that a treaty is only another name for a bargain, and that it would be impossible to "find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it.” President Obama made the same point in his celebrated April 5, 2009 speech in Prague: “Rules must be binding. Violations must be punished. Words must mean something.”
That is true, even for the United States.