Quelltext der Seite Breaches of the rule of law

*[http://www.yale.edu/yjil/PDF/Cogan.pdf Cogan, Jacob Katz (2006) Noncompliance and the International Rule of Law. Yale Journal of International Law, Vol. 31, p. 189]

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 ...

*[http://www.fletcherforum.org/wp-content/uploads/2013/02/Koplow_37-1.pdf Koplow, David A. (2012) Indisputable Violations: What happens when the United States Unambiguously Breaches a Treaty?]

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. 

*[http://www.brookings.edu/~/media/research/files/reports/2014/10/15-marijuana-legalization-modernize-drug-treaties-bennett-walsh/cepmmjlegalizationv4.pdf Bennett, Wells/John Walsh (2014) Marijuana Legalization is an Opportunity to Modernize International Drug Treaties]