Is there room for international law in realpolitik?: Accounting for the US ‘attitude’ towards international law

Review of International Studies

Volumn 30, Issue 1, 2004, Pages 71-88

  Scott, Shirley V ^a  

^a NONE

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EID: 0742302568     PISSN: 02602105     EISSN: 14699044     Source Type: Journal    
DOI: 10.1017/S0260210504005832     Document Type: Article

References (102)

1. ‘World law and world power’, The Economist (US) 349:8097 (5 December 1998), p. 16.
2. Paraguay brought proceedings regarding Angel Francisco Breard in the ICJ. Breard was a Paraguayan but the Paraguayan consular authorities had not learnt about his arrest and trial until 1996, three years after he was convicted of the attempted rape and murder of Ruth Dickie in Virginia. The Court indicated provisional measures that the US ‘should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings’ but Breard was executed on 14 April 1998. The US also failed to comply with provisional measures issued on 3 March 1999 in a similar case, concerning Walter LaGrand. Sean D. Murphy, ‘Execution of German Nationals Who Were Not Notified of Right to Consular Access’, American Journal of International Law (AJIL), 93 (1999), pp. 644-647.
3. The Helms-Burton Act (the Cuban Liberty and Democratic Solidarity Act or Libertad Act) was signed into law by President Clinton on 12 March 1996. This aimed to ‘discourage third-country investment in Cuba by exposing foreign companies to potential claims in US courts and also by denying entry into the US for such foreign companies or their officers’. Most controversial was Title III which created a private right of action in US federal courts against third-country nationals who ‘traffic in’ property confiscated from US nationals. See Agora: The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act 90, AJIL, 419 (1996).
4. Title IV was also controversial because it precluded entry into the US of such third-country nationals who ‘traffic in’ property confiscated from US nationals, precluding entry of their officers and controlling shareholders and their families. There are several grounds on which this is considered illegal; the main one is its ‘blatant violation of the international rules governing extraterritoriality’. Other grounds include that it violates: the most fundamental principles of international responsibility, the principle of non-intervention, the rules of the GATT/WTO, the NAFTA, the Charters of international organisations including the International Monetary Fund and the World Bank, and the rules of the Organisation for Economic Cooperation and Development. Brigitte Stern, ‘Can the United States Set Rules for the World? A French View’, Journal of World Trade, 31 (1997), pp. 10-11. Also controversial was the D'Amato Act (the Iran and Libya Sanctions Act of 1996 1996), 35 ILM 1273.
5. Christian M. Capece, ‘The Ottawa Treaty and its Impact on US Military Policy and Planning’, Brooklyn Journal of International Law, XXV:1 (1999), pp. 183-204.
6. Curtis A. Bradley and Jack L. Goldsmith, ‘Agora: Breard’, AJIL, 92:4 (October 1998), p. 675.
7. But note that this was a policy decision rather than one of constitutional law. See Malvina Halberstam, ‘The Constitutional Authority of the Federal Government in State Criminal Proceedings that Involve US Treaty Obligations or affect US Foreign Relations’, Indiana International Comparative Law Review, 10:1 (1999), pp. 1-15.
8. For consideration of other reasons for the US reluctance to sign human rights treaties see Carl E. Schneider, ‘America as Pattern and Problem’, The Hastings Center Report, 30:1 (January 2000), p. 20.
9. ‘US Decision Not to Sign Treaty Establishing International Criminal Court’, AJIL, 93 (1999), p. 186.
10. See Jonathan B. Tucker, ‘Nonproliferation regimes at risk: Challenges to the Chemical Weapons Convention’, CNS Occasional Papers #3. , accessed 6 January 2001.
11. ‘How can the United States get away with [these double standards]? The answer, as in many other things, is simple: it is the world's only superpower.’ ‘World Law and World Power’, The Economist (US), 349:8097 (5 December 1998), p. 16(1).
12. See remarks by Michael Byers on ‘The Single Superpower and the Future of International Law’, American Society of International Law (ASIL). Proceedings of the Annual Meeting. Washington: 2000. ‘Fifty years ago the United States took the lead in building modern international human rights law. But lately, Washington has been in the public eye for the obstacles it has raised to its further development.’ Kenneth Roth, ‘Sidelined on Human Rights: America Bows Out’, Foreign Affairs (March/April 1998), pp. 2-6 at 2.
13. For discussion of US unilateralism in relation to international law, see the special issues of the European Journal of International Law, 11:1 (March 2000) and 11:2 (June 2000). For discussion of unilateralism in US foreign policy, see Gwyn Prins (ed.), Understanding Unilateralism in American Foreign Relations (London: The Royal Institute of International Affairs, 2000).
14. Criticism of the attitude of the US to international law has been matched by political criticism. ‘No article on contemporary world affairs is complete without obligatory citations from diplomats and scholars complaining of US arrogance’. William C. Wohlforth, ‘The Stability of a Unipolar World’, International Security, 24:1 (Summer 1999), pp. 5-12, at 6.
15. Lauterpacht described the mission of international law as being ‘to enhancing the stability of international peace, to the protection of the rights of man, and to reducing the evils and abuses of national power’. Cited in Steven R. Ratner, ‘International Law: The Trials of Global Norms’, Foreign Policy, 16:110 (Spring 1998), p. 65.
16. Burns H. Weston, ‘The Reagan Administration Versus International Law’, Case Western Reserve Journal of International Law, 19:295 (1987), pp. 295-302, at 295.
17. Arthur M. Schlesinger, Jr., The Cycles of American History (Boston, MA: Houghton Mifflin, 1986), at p. 83.
18. Stuart Malawer referred to the ‘Reagan Corollary’ of international law, which he saw as supplementing the ‘Reagan Doctrine’ in foreign affairs. Stuart S. Malawer, ‘Reagan's Law and Foreign Policy, 1981-1987: The “Reagan Corollary” of International Law’, Harvard International Law Journal, 29 (1988), pp. 85-109.
19. D. Moynihan, Loyalties (1984), at p. 67.
20. Burns H. Weston, ‘The Reagan Administration versus International Law’, Case Western Reserve Journal of International Law, 19 (1987), pp. 295-302, at 295.
21. Paul H. Kreisberg, ‘Does the US Government Think that International Law is Important?’, Yale Journal of International Law, 11:479 (1986), pp. 479-491, at 487.
22. The ILC drew up two draft Statutes in 1951 and 1953. No further action was taken during the years of the Cold War; an international criminal court whose goals included the punishment of aggressive warfare was seen during these years as a threat to national sovereignty. Robert Rosenstock, ‘Symposium: Should There be an International Tribunal for Crimes Against Humanity?’, Pace International Law Review, 6 (1984), p. 84.
23. Sean D. Murphy, ‘Payments of uS Arrears to the United Nations’, AJIL, 94 (2000), p. 348.
24. In the late 1970s the US Congress expressed occasional frustration with the level of the UN assessments. On a few occasions, Congress threatened to act unilaterally to reduce US contributions with the aim of reaching a maximum assessment of 25 per cent of the regular budget. Jose E. Alvarez, ‘The United States Financial Veto’, American Society of International Law Proceedings 1996, p. 320.
25. The US had, from the first session of the General Assembly, expressed this as being its goal. ‘ United States Delegate Position Paper: Principal Issues Before Committee 5 (21 October 1946), in Foreign Relations of the United States (1946), p. 467.
26. Vaughan Lowe, ‘US Extraterritorial Jurisdiction: The Helms-Burton and D'Amato Acts’, International and Comparative Law Quarterly, 46 (April 1997), pp. 378-390, at 378.
27. The United States has been credited with the distinction of perfecting the ‘art’ of unilateral sanctions on the international plane through the instrumentality of its domestic laws: V.S. Mani, ‘Unilateral Imposition of Sanctions through Extra-Territorial Application of Domestic Laws: A Tale of Two US Statutes’, Indiana Journal of International Law, 38 (1998), pp. 1-27, at 2.
28. The trend was particularly apparent during the Cold War, aimed at the Soviet bloc or countries dealing with it. In response to the imposition of martial law in Poland at Christmas 1981 and imprisonment of the Solidarity leadership the US took measures against the USSR, involving a prohibition on US exports of equipment and technology to be used in the construction of a natural gas pipeline from the Arctic regions of Siberia to Western Europe. Gary H. Perlow, ‘Taking Peacetime Trade Sanctions to the Limit: The Soviet Pipeline Embargo’, Case Western Reserve Journal of International Law, 14:213 (1983), pp. 253-272, at 254.
29. In June 1982 President Reagan extended the prohibitions to equipment manufactured abroad by foreign subsidiaries of US companies and even by wholly foreign-owned companies benefiting from technology licences granted by American firms. See discussion in Andreas F. Lowenfeld, ‘Congress and Cuba: The Helms-Burton Act’, AJIL 90 (1996), pp. 432-433.
30. See also K. Blockslaff, ‘The Pipeline Affair of 1981/82: A Case History’, German Yearbook of International Law (GYIL), 27 (1984), pp. 28-37;
31. Detlav Vagts, ‘The Pipeline Controversy: An American Viewpoint’, GYIL 27 (1984), pp. 38-53. The measures were not popular with US allies in Western Europe and were enforced for only five months.
32. Allan Gerson, ‘Multilateralism a la Carte: The Consequences of Unilateral “Pick and Pay” Approaches’, AJIL, 11:1 (2000), p. 62.
33. Deborah L. Madsen, American Exceptionalism (Edinburgh: Edinburgh University Press, 1998), pp 1-2.
34. America was once more required to save the world in the Vietnam War - not from misguided religious institutions this time, but from ‘corrupt political institutions that are inconsistent with the democratic capitalism that America is destined to exemplify and disseminate.’ The ‘setback’ in Vietnam was not seen as evidence that the ideology was wrong but that influential sectors of the American public had partially abandoned the ideology. ‘[L]ack of patriotic faith in the American mission defeats American purpose’. Deborah L. Madsen, American Exceptionalism (Edinburgh: Edinburgh University Press, 1998), p. 162.
35. Madeleine K. Albright, ‘The Testing of American Foreign Policy’, Foreign Affairs, 77:6 (1998), p. 63.
36. Condoleezza Rice, ‘Promoting the National Interest’, Foreign Affairs, 79:1 (January/February 2000), pp. 45-62.
37. ‘Anti-Americanism relies on American exceptionalism’. Bruce Grant, A Furious Hunger: America in the 21st Century (Melbourne University Press 1999), p. 214.
38. See also ‘Rogue Nation’, The Nation, 272:21 (28 May 2001), p. 3.
39. James C. Hathaway, ‘America, Defender of Democratic Legitimacy?’, European Journal of International Law, 11 (2000), pp. 121-134, at 121.
40. European Journal of International Law.
41. See, inter alia, Anthony Clark Arend, ‘Do legal rules matter: international law and international politics’, Virginia Journal of International Law, 38 (1998), p. 107;
42. Kenneth W. Abbott, ‘Elements of a Joint Discipline’, Proceedings of the Annual Meeting of the American Society of International Law (1992), p. 167;
43. Robert J. Beck, Anthony Clark Arend and Robert D. Vander Lugt (eds.), International Rules: Approaches from International Law and International Relations (Oxford: Oxford University Press, 1996);
44. and Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’, AJIL, 92 (1993), p. 205.
45. ‘As international relations scholars have begun to reject the realist paradigm that places international law on the periphery of the relations of states, the potential for interdisciplinary scholarship between the two disciplines have flourished.’ J. Craig Barker, International Law and International Relations: International Relations for the 21st Century (London and New York: Continuum, 2000), p. 84.
46. Andreas Paulus, ‘Realism and International Law: Two Optics in Need of Each Other’, 96 ASIL: Proceedings of the 96th Annual Meeting of the American Society of International Law, 269 (2002).
47. Consider, for example, the views of Condoleezza Rice, as expressed prior to the presidential election when she was Senior Fellow at the Hoover Institution and Professor of Political Science at Stanford University as well as foreign policy advisor to Republican presidential nominee George W. Bush. ‘AMERICAN FOREIGN POLICY in a Republican administration should refocus the United States on the national interest and the pursuit of key priorities’. And a little later, ‘POWER MATTERS, both the exercise of power by the United States and the ability of others to exercise it’. Condoleezza Rice, ‘Promoting the National Interest’, Foreign Affairs, 79:1 (January/February 2000), pp. 45-62.
48. This is usually treated as a surprise or enigma. See Jutta Brunnee and Stephen J. Toope, ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’, Columbia Journal of Transnational Law, 39 (2000), p. 23, fn. 11.
49. See, for example, Stephen D. Krasner, ‘Realist Views of International Law’, 96 ASIL PROC. 265 (2002).
50. Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace 5th edn. (New York: Alfred A. Knopf, 1973), p. 5.
51. Politics Among Nations: The Struggle for Power and Peace 5th edn., p. 27.
52. Thomas J. Christensen, ‘Posing Problems without Catching Up: China's Rise and Challenges for US Security Policy’, International Security, 25:4 (Spring 2001), pp. 5-40.
53. Joseph M. Grieco, ‘Anarchy and the Limits of Cooperation: A Realist Critique of the Newest Liberal Institutionalism’, International Organization, 42:3 (Summer 1988), pp. 485-507.
54. John H. Herz, ‘Idealist Internationalism and the Security Dilemma’, World Politics, 2 (1950), pp. 157-158.
55. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2002), p. 465.
56. The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960, 464-465.
57. Morgenthau, Politics Among Nations, p. 27.
58. Cf. Shirley Scott, ‘Some Reflections on the New Stream’, Australian and New Zealand Society of International Law: Proceedings of the Fifth Annual Conference 29 May-1 June 1997 (Canberra: The Centre for International and Public Law, 1997), pp. 117-120.
59. J. Craig Barker notes that Morgenthau was strongly positivist. J. Craig Barker, International Law and International Relations (London and New York: Continuum, 2000), p. 73.
60. F. Boyle, World Politics and International Law (Durham, NC: Duke University Press, 1985), p. 59.
61. Morgenthau, Politics Among Nations. According to Morgenthau, the lawyer might ask whether a policy accords with the rules of law; the political realist asks how a particular policy affects the power of the state., p. 11.
62. Politics Among Nations, p. 15.
63. This is comparable to the way economists used to discuss political questions before the creation of International Political Economy as a field of study. See discussion in Shirley Scott, ‘Teaching International Law to Non-Lawyers’, International Legal Challenges for the Twenty-first Century. Proceedings of a Joint Meeting of the Australian & New Zealand Society of International Law and the American Society of International Law, 26-29 June 2000, pp. 199-201.
64. Morgenthau, Politics Among Nations, p. 28.
65. For a guide to literature on this topic that is available on the World Wide Web, see Marc A. Levy, ‘Exploring Environment-Security Connections’, Environment, 41:1 (January/February 1999), p. 3.
66. See, for example, Lloyd Axworthy, ‘Human Security and Global Governance: Putting People First’, Global Governance, 7 (2001), pp. 19-23
67. and Howard Adelman, ‘From Refugees to Forced Migration: The UNHCR and Human Security’, International Migration Review, 35:1 (Spring 2001), pp. 7-32.
68. Eric K. Stern, ‘Bringing the Environment In: The Case for Comprehensive Security’, Cooperation and Conflict, 30:3 (1995), pp. 211-237, at 213.
69. Influential in suggesting new referents for security was Barry Buzan's book: People, States and Fear in which he advocated conceptualising security at the level of the individual, the state, and the international system. Barry Buzan, People, States and Fear: An Agenda for International Security Studies in the Post-Cold War Era, 2nd edn. (New York: Harvester Wheatsheaf, 1991).
70. Time International commented in relation to Seattle: ‘Despite the free trade rhetoric, the aim of many countries seemed to be how to promote its own exports - and, as much as possible, avoid one another's imports.’ ‘The Battle in Seattle: Never Mind the Riots. The real threat to the WTO's free-trade agenda lies in discord among member nations.’ Time International, 154:23 (13 December 1999), p. 22.
71. Fact Sheet: ‘Benefits of the Uruguay Round’, US State Dept Dispatch Supplement, vol. 5, supplement no. 6 (July 1994), accessed 9 January 2001. Accessed 9 January 2001.
72. ‘Sovereignty in the relation between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.’ AJIL, 22 (1928), p. 875.
73. Cf. the argument in Peter J. Spiro, ‘The New Sovereigntists - American Exceptionalism and Its False Prophets’, Foreign Affairs, 79:6 (November-December 2000), p. 9.
74. Christian M. Capece, ‘The Ottawa Treaty and Its Impact on US Military Policy and Planning’, Brooklyn Journal of International Law, XXV: 1 (1999), pp. 183-204, at 183-4.
75. US President ‘makes history’ in last-minute assent to war crimes court’. The Sydney Morning Herald, 2 January 2001, at p. 9.
76. ‘Contemporary Practice of the United States: US National Security Strategy’, AJIL, 94 (2000), at p. 380.
77. See, for example, Frederic L. Kirgis, ‘The Security Council's First Fifty Years’, AJIL, 89 (1995), pp. 506-539.
78. Jules Lobel and Michael Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime’, AJIL (1999), pp. 124-154;
79. John Quigley, ‘The “Privatization” of Security Council Enforcement Action: A Threat to Multilateralism’, Michigan Journal of International Law, 17 (1996), pp. 249-283;
80. Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Clarendon, 1999).
81. James C. Hathaway, ‘America, Defender of Democratic Legitimacy?’, European Journal of International Law, 11 (2000), pp. 121-134, at 134.
82. William R. Sprance, ‘The World Trade Organization and United States’ Sovereignty: The Political and Procedural Realities of the System’, American University International Law Review, 13 (1998), pp. 1225-1265, at 1263.
83. Joost Pauwelyn, ‘Enforcement and Countermeasures in the WTO: Rules are Rules - Toward a More Collective Approach’, AJIL, 94 (2000), pp. 335-347.
84. Sprance, ‘The World Trade Organization and United States’ Sovereignty’. pp. 1225-1265, at 1264.
85. Jonathan B. Tucker, ‘Nonproliferation Regimes at Risk: Challenges to the Chemical Weapons Convention’. CNS Occasional Papers #3. Accessed 6 January 2001.
86. ‘Address by Senator Jesse Helms Chairman, US Senate Committee on Foreign Relations before the United Nations Security Council’, 20 January 1999. Accessed 22 August 1999.
87. James C. Hathaway, ‘America, Defender of Democratic Legitimacy?’, European Journal of Internattional Law, 11 (2000), pp. 121-134, at 134.
88. Jordan J. Paust, ‘Domestic Influence of the International Court of Justice’, Denver Journal of International Law and Policy, 26:5 (Mid-Summer 1998), p. 787.
89. Sean D. Murphy, ‘Contemporary Practice of the United States relating to International Law’, American Journal of International Law (2000), p. 104.
90. See explanation in Michael P. Schart, ‘Results of the Rome Conference for an International Criminal Court’, ASIL Insight, August 1998.
91. David J. Scheffer, ‘The United States and the International Criminal Court’, AJIL, 93 (1999), pp. 12-22, at 19.
92. ‘Address by Senator Jesse Helms Chairman, US Senate Committee on Foreign Relations before the United Nations Security Council’, 20 January 1999. Accessed 22 August 1999.
93. See Amnesty International, ‘International Criminal Court: US Efforts to Obtain Impunity for Genocide, Crimes against Humanity and War Crimes’, August 2002;
94. and Coalition for the International Criminal Court, ‘Bilateral Agreements Proposed by US Government’.
95. and ‘Experts Available: US Threatening to Withhold Military Aid over ICC Experts Refute Legality of Immunity Agreements US is Seeking’, August 2002, obtainable at
96. Richard Dicker of Human Rights Watch, cited in Michael P. Scharf, ‘Results of the Rome Conference for an International Criminal Court’, ASIL Insight, August 1998.
97. William C. Wohlforth, ‘The Stability of a Unipolar World’, International Security 24:1 (Summer 1999), pp. 5-12, at 6.
98. William G. Grewe, The Epochs of International Law, Translated and revised by Michael Byers, (Berlin: de Gruyter, 2000).
99. Cf. Grewe, Epochs of International Law, p. 24. It was the Spanish age ‘because the ideas held by the State which fought against Spain were not only marked by the colour of this age but also entangled in a polemical dependence on Spanish ideas and concepts’.
100. Bruno Simma, The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 1994), p. 2.
101. The Charter of the United Nations: A Commentary, p. 11.
102. ‘World Law and World Power’, The Economist (US), 349:8097 (5 December 1998), p. 16.