How American treaty behavior threatens national security

International Security

Volumn 33, Issue 1, 2008, Pages 45-81

  Chayes, Antonia ^a  

^a TUFTS UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 47949101117     PISSN: 01622889     EISSN: 15314804     Source Type: Journal    
DOI: 10.1162/isec.2008.33.1.45     Document Type: Article

References (195)

1. Harold Hongju Koh, "On American Exceptionalism," Stanford Law Review, Vol. 55, No. 5 (May 2003), pp. 1479, 1483-1494;
2. and Michael Ignatieff, "The Burden: The American Empire (Get Used to It)," New York Times Magazine, January 5, 2003, p. 22.
3. Numerous commentators, journalists, politicians, and activists have pointed to the deleterious impact of U.S. treaty behavior. See, for example, Philip Gordon, "Bridging the Atlantic Divide," Foreign Affairs, Vol. 82, No. 1 (January/February 2003), p. 70.
4. See also Bruce Nussbaum, "Commentary: The High Price of Bad Diplomacy," Business Week, March 24, 2003, p. 33; and Ignatieff, "The Burden."
5. See Stewart Patrick, "Multilateralism and Its Discontents: The Causes and Consequences of U.S. Ambivalence," in Patrick and Shepard Forman, eds., Multilateralism and U.S. Foreign Policy: Ambivalent Engagement (Boulder, Colo.: Lynne Rienner, 2002), p. 11.
6. See Peter J. Spiro, "The New Sovereigntists: American Exceptionalism and Its False Prophets," Foreign Affairs, Vol. 79, No. 6 (November/December 2000), pp. 9-15.
7. Samuel Krislov, "American Federalism as American Exceptionalism," Publius, Vol. 31, No. 1 (January 2001), p. 9. Alexis de Toqueville sought to explain why the United States, and not France, was able to create a democracy from revolution.
8. See "From Sea to Shining Sea," Economist, November 8, 2003, pp. 6-8.
9. See Michael Ignatieff, "Introduction: American Exceptionalism and Human Rights," in Ignatieff, ed., American Exceptionalism and Human Rights (Princeton, N.J.: Princeton University Press 2005), p. 3.
10. Koh, "On American Exceptionalism," especially pp. 1483-1494. For positive assessments of U.S. conduct, see also Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword (New York: W.W, Norton, 1996);
11. and James Q. Wilson, "American Exceptionalism," American Spectator, Vol. 39, No. 7 (September 2006), pp. 36-43,
12. See also Oona Hathaway, "Do Human Rights Treaties Make a Difference?" Yale Law Journal, Vol. 111, No. 8 (June 2002), pp. 1935-2042;
13. and Beth A. Simmons, "Theories of Compliance," book manuscript, 2008, chap, 3.
14. See "U.S. Sanctions against Japan for Whaling," American Journal of International Law, Vol. 95, No. 1 (January 2001), pp. 149-152;
15. and Bob Holmes and Duncan Graham-Rowe, "Pressure Is On to Lift Whale Ban," New Scientist, June 18, 2005, pp. 6-8,
16. States Parties to CEDAW, http://www.un.org/womenwatch/daw/cedaw/states. htm (accessed March 23, 2008);
17. and States Parties to ICESCR, http://www2.ohchr.org/english/bodies/ ratification/3.htm (accessed April 15, 2008).
18. See Lawrence J. LeBlanc, The United States and the Genocide Convention (Durham, N.C.: Duke University Press, 1991);
19. and Natalie Hevener Kaufman, Human Rights Treaties and the Senate: A History of Opposition (Chapel Hill: University of North Carolina Press, 1990).
20. David Scheffer, "Staying the Course with the International Criminal Court," Cornell Law Journal, Vol. 35, No. 1 (November 2001-February 2002), p. 47.
21. See "U.S. Notification of Intent Not to Become a Party to the Rome Statute," American Journal of International Law, Vol. 96, No. 3 (July 2002), p. 724.
22. The lead U.S. negotiator for the Rome Statute, David J. Scheffer, offers his assessment of the treaty in Scheffer, "The United States and the International Criminal Court," American Journal of International Law, Vol. 93, No. 1 (January 1999), pp. 12-22. For a legal assessment of "unsigning,"
23. see Edward T. Swaine, "Unsigning," Stanford Law Review, Vol. 55, No. 4 (May 2003), pp. 2061-2089.
24. Although the United Nations negotiated an amendment to part 11 of the convention to assuage America's concerns, the United States still has not ratified it. See Leigh S. Ratiner, "The Law of the Sea: A Crossroads for American Foreign Policy," Foreign Affairs, Vol. 60, No. 5 (Summer 1982), pp. 1006-1021;
25. and James K. Sebenius, Negotiating the Law of the Sea (Cambridge, Mass.: Harvard. University Press, 1984).
26. But compare with James L. Malone, "Who Needs the Sea Treaty?" Foreign Policy, No. 54 (Spring 1984), pp. 44-63.
27. For a legal analysis of nonsignatories, see Luke T. Lee, "The Law of the Sea Convention and Third States," American Journal of International Law, Vol. 77, No. 3 Guly 1983), pp. 541-568.
28. The last review conference was held in April 2008. Oliver Meier, "CWC Conference Boosts Treaty, Exposes Rifts," Arms Control Today, December 2007, http://www.armscontrol.org/act/2007_12/CWC.asp.
29. See Emma Belcher, "U.S. Exceptionalism and the Comprehensive Test Ban Treaty," unpublished paper, Fletcher School of Law and Diplomacy, Tufts University, 2004;
30. Thomas Graham Jr. and Damien J. La Vera, "Nuclear Weapons: The Comprehensive Test Ban Treaty and National Missile Defense," in Patrick and Forman, Multilateralism and U.S. Foreign Policy, pp. 225-246;
31. and Daryl G. Kimball, "CTBT Rogue State?" Arms Control Today, December 2001, http://www.armscontrol.org/act/2001_12/ ctbtanalysisdec01.asp.
32. See David J. Scheffer, "Staying the Course with the International Criminal Court," Cornell International Law Journal, Vol. 35, No. 1 (November 2001-February 2002), p. 47.
33. Foster v. Neilson, 17 U.S. 253 (1829).
34. Nicholas Quinn Rosenkranz contends that legislation implementing treaty provisions cannot extend, beyond the enumerated powers of Congress without becoming unconstitutional. This view, as Rosenkranz explains, calls for partially overturning or seriously limiting the Supreme Court's opinion in Missouri v. Holland, 252 U.S. 416 (1920), which interpreted the treaty power
35. broadly. See Rosenkranz, "Executing the Treaty Power," Harvard Law Review, Vol. 118, No. 6 (April 2005), pp. 1867-1938.
36. Afghanistan, for example, declared that it reserved the right to uphold "reservations on all provisions of the Convention [on the Rights of the Child] that are incompatible with the laws of Islamic Shari'a and the local legislation in effect." See http://www.unhchr.ch/tbs/doc.nsf/ 73c66f02499582e7c1256ab7002e2533/b1710eb42f6170b8c1256b9200649405?OpenDocument.
37. Some treaties allow states to suspend obligations in cases of emergency. The United Kingdom used this type of reservation, a derogation, in the ICCPR. France also has attached reservations to its ratification of the ICCPR. See http://www.ohchr.org/english/countries/ratification/4_l.htm.
38. Article 19 of the convention reads: "A State may, when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty." For the text, see http://www.untreaty.un.org/ikc/ texts/instruments/english/conventions/1_1_1969.pdf.
39. Catherine Redgwell, "U.S. Reservations to Human Rights Treaties: All for One and None for All?" in Michael Byers and Georg Nolte, eds., United States Hegemony and the Foundations of International Law (New York: Cambridge University Press, 2003), pp. 392-415.
40. In 1946 the Senate inserted this reservation into the optional clause of Article 36, paragraph 2, of the statute of the International Court of Justice. See Interhandel Case (Switzerland v. United States of America), 1959 ICJ 6 (March 21) (separate opinion of Judge Lauterpacht) (Preliminary Objections).
41. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1984 ICJ 392.
42. See also Abram Chayes, "Nicaragua, the United States, and the World Court," Columbia Law Review, Vol. 85, No. 7 (November 1985), pp. 1445-1482.
43. See Harold. Koh and Andrew Moravcsik, "The Paradox of U.S. Human Rights Policy," in Ignatieff, American Exceptionalism and Human Rights, pp. 147-197; and Koh, "On American Exceptionalism."
44. See Curtis A. Bradley and Jack L. Goldsmith, "Customary International Law as Federal Common Law: A Critique of the Modern Position," Harvard Law Review, Vol. 110, No. 4 (February 1997), pp. 815-876;
45. Jack Goldsmith, "Should International Human Rights Law Trump U.S. Domestic Law?" Chicago Journal of International Law, Vol. 1, No. 2 (Fall 2000), pp. 327-339;
46. and Curtis A. Bradley and Jack L. Goldsmith, "Treaties, Human Rights, and Conditional Consent," University of Pennsylvania Law Review, Vol. 149, No. 2 (December 2000), pp. 399-468.
47. Goldsmith, "Should International Human Rights Law Trump U.S. Domestic Law?" p. 335.
48. See Robert Z. Lawrence, "U.S. Trade Policy: The Exception to American Exceptionalism?" in Morton H. Halperin, Jeffrey Laurenti, Peter Rundlet, and Spencer P. Boyer, Power and Superpower: Global Leadership and Exceptionalism in the 21st Century (Washington, D.C.: Brookings Institution Press, 2007);
49. and Joel P. Trachtman, "The WTO Cathedral," Stanford Journal of International Law, Vol. 43, No. 1 (Winter 2007), pp. 127-167.
50. Amy Smithson, "The Chemical Weapons Convention," in Patrick and Forman, Multilateralism and U.S. Foreign Policy, pp. 247-259;
51. and Danielle Tarin, "The United States and the Chemical Weapons Convention: Exemplifying American Exceptionalism in Treaty Behavior," unpublished paper, Fletcher School of Law and Diplomacy, Tufts University, 2006.
52. Arbitrator's Decision, United States Tax Treatment for "Foreign Sales Corporations," Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/ARB (August 30, 2002);
53. and Appellate Body Report, United States Tax Treatment for "Foreign Sales Corporations," Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW (January 14, 2002).
54. See B. Peter Rosendorff, "Voluntary Export Restraints, Antidumping Procedure, and Domestic Politics," American Economic Review, Vol. 86, No. 3 (June 1996), pp. 544-561;
55. and Steven Berry, James Levinsohn, and Ariel Pakes, "Voluntary Export Restraints on Automobiles: Evaluating a Trade Policy," American Economic Review, Vol. 89, No. 3 (June 1999), pp. 400-430.
56. See generally Michael J. Glennon, "How International Rules Die," Georgetoiun Law Journal, Vol. 93, No. 3 (March 2005), pp. 939-991.
57. See also Oona A. Hathaway, "Do Human Rights Treaties Make a Difference?" Yale Law Journal, Vol. 111, No. 8 (June 2002), pp. 1935-2042;
58. and Harold Hongju Koh, "Why Do Nations Obey International Law?" Yale Law Journal, Vol. 106, No. 8 (June 1997), pp. 2599-2659.
59. For the "revisionist" view, see Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (New York: Oxford University Press, 2005);
60. and Oona A. Hathaway and Ariel N. Lavinbuk, "Rationalism and Revisionism in International Law," Harvard Law Review, Vol. 119, No. 5 (March 2006), pp. 1404-1443, for a critical review of the revisionists.
61. Cornelia Pillard, "Unitariness and Myopia: The Executive Branch, Legal Process, and Torture," Indiana Law Journal, Vol. 81, No. 4 (Fall 2006), p. 1297.
62. Office of the Press Secretary, "Fact Sheet: Status of Detainees at Guantanamo" (Washington, D.C.: White House, February 7, 2002), http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html.
63. For a recent example, see Eric Fair, "An Iraq Interrogator's Nightmare," Washington Post, February 9, 2007.
64. Hamdan v. Rumsfeld, 548 U.S. 55 (2006), 126 S.Ct. 2749.
65. Ibid., p. 2795.
66. Ibid.
67. Ibid., pp. 2793-2799.
68. See Part 1, Articles 1 and 16, http://www.ohchr.org/engIish/law/cat.htm.
69. The U.S. reservation can be found at http://www.ohchr.org/engIish/bodies/ ratification/9.htm.
70. See Office of Legal Counsel to Alberto Gonzales, U.S. Department of Justice, "Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A," Memorandum from Assistant Attorney General Jay S. Bybee, August 1, 2002. A later memorandum by John Yoo, written in 2003, expands on this definition.
71. See Mark Mazzetti, "'03 U.S. Memo Approved Harsh Interrogations," New York Times, April 2, 2008.
72. In response to the Supreme Court's decision, Congress passed the Military Commission Act of 2006 in October. See Public Law 109-366, 120 stat. 2600 (2006).
73. See Office of Legal Counsel, "Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A," Memorandum by Acting Assistant Attorney General Daniel Levin, December 30, 2004, http://www.usdoj.gov/olc/2004opinions. htm.
74. For the 2007 edition of the Manual for Military Commissions, see http://www.defenselink.mil/news/d20080213manual.pdf. It contains the rules and procedures that implement the Military Commissions Act of 2006. In addition, the manual prohibits defense counsels from presenting classified evidence unless the government approves its use.
75. See also "Attorneys for 3 Guantanamo Detainees Criticize New Tribunal Rules," International Herald Tribune," February 8, 2007.
76. Boumediene v. Bush, 127 S.Ct. 3078 (2007),
77. consolidated with Al Odah v. United States, 127 S.Ct. 3067 (2007), was brought on behalf of thirty-seven Guantanamo detainees. It raises the question of whether requiring federal court challenges to Combatant Status Review Tribunal decisions regarding Guantanamo detainees to be heard under truncated procedures in the U.S. Court of Appeals for the District of Columbia Circuit, instead of under the federal habeas corpus statutes normally used to challenge unlawful detentions, constitutes an unconstitutional suspension on the writ by Congress. The Supreme Court heard oral arguments on December 5, 2007.
78. See Robert Barnes, "Justices Weigh Courts' Role in Detainee Cases," Washington Post, December 5, 2005;
79. and Amy Goldstein, "Justices Won't Hear Detainee Rights Cases - for Now," Washington Post, April 3, 2007.
80. See also Linda Greenhouse, "A Second Case on Detainees Complicates Deliberations," New York Times, February 6, 2008 (referring to yet another case: Bismullah v. Gates).
81. Michael J. Glennon and Alison L. Stewart, "The United States: Taking Environmental Treaties Seriously," in Edith Brown Weiss and Harold K. Jacobson, eds., Engaging Countries: Strengthening Compliance, with International Environmental Accords (Cambridge, Mass.: MIT Press, 1998), pp. 173-214.
82. See Peter H. Sand, "Whither CITES? The Evolution of a Treaty Regime in the Borderland of Trade and Environment," European Journal of International Law, Vol. 8, No. 1 (1997), pp. 29-58.
83. See Weiss and Jacobson, Engaging Countries.
84. See "U.S. Notification of Intent Not to Become a Party to the Rome Statute."
85. Prohibitions include extraditing a defendant to the ICC (American Service-Members' Protection Act of 2002, § 2004(d), Priv. L. No. 107-206m, 116 Stat. 820 (2002)), assisting the ICC with appropriated funds (§ 2004(f)), or allowing any agent or representative of the ICC to conduct investigatory activities in any U.S. territory (§ 2004(h)).
86. Ibid., § 2008.
87. See "Commissioner Byrne's Speech on the American Service-Members' Protection Act (ASPA)," presented before the European Parliament, Strasbourg, France, http://www.europa-eu-un.org/articles/fr/article_1516_fr.htm. The European Union reacted strongly against this alleged. Hague Invasion Act. See "Council Conclusions on the ICC and the Draft U.S. Service-Members' Protection Act (ASPA)," 2437th Council Meeting, Luxembourg, June 17, 2002, p. 23.
88. See also Konstantinos Magliveras and Dimitris Sourantonis, "Rescinding the Signature of an International Treaty: The United States and the Rome Statute Establishing the International Criminal Court," Diplomacy & Statecraft, Vol. 14, No. 4 (December 2003), pp. 40-41.
89. The United States' vote on draft resolution S/2002/712 constituted the sole veto, with thirteen Security Council votes in favor and one abstention (Bulgaria).
90. Colum Lynch, "Congress Seeks to Curb International Court," Washington Post, November 26, 2004.
91. The Rome Statute includes Article 98(2), which states: "Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender." Starting in 2002, the United States began negotiating these agreements with individual countries and has concluded at least 100 such agreements. See generally Samantha V Ettari, "A Foundation of Granite or Sand? The International Criminal Court and United States Bilateral Immunity Agreements," Brooklyn Journal of International Law, Vol. 30, No. 1 (2004), pp. 205-254;
92. and Cosmos Eubany, "Justice for Some? U.S. Efforts under Article 98 to Escape the Jurisdiction of the International Criminal Court," Hastings International and Comparative Law Review, Vol. 27, No. 1 (Fall 2003), pp. 103-129. For a list of countries that have signed these agreements with the United States, see http://www.ll.georgetown.edu/intl/guides/article_98. cfm#countries.
93. See also Adam Isacson, "Taking 'No' for an Answer: The 'American Service-Members' Protection Act' and the Bush Administration's Security Relations with Latin America," International Policy Report (Washington, D.C.: Center for International Policy, May 2007), http://ciponline.org/colombia/ takingnoipr.pdf.
94. See Clare M. Ribando, Article 98 Agreements and Sanctions on U.S. Foreign Aid to Latin America (Washington, D.C.: Library of Congress, April 10, 2006), Order Code RL3337, pp. 2-9.
95. See Richard Boucher, "U.S. Signs 100th Article 98 Agreement" (Washington, D.C.: U.S. Department of State, May 3, 2005), http://www.state.gov/ r/pa/prs/ps/2005/45573.htm;
96. and Office of the Press Secretary, "Memorandum for the Secretary of State: Waiving Prohibition on United States Military Assistance to Parties to the Rome Statute Establishing the International Criminal Court," Presidential Determination, No. 2004-17 (Washington, D.C.: White House, December 30, 2003), http://www.state.gov/t/pm/rls/prsrl/27663.htm.
97. Ribando, Article 98 Agreements and Sanctions on U.S. Foreign Aid to Latin America, pp. 2-9, quoting "U.S. Could Cut Aid to Latin American Countries over ICC," EFE News Service, November 18, 2005. The United States also pressed Croatia hard, raising questions about the country's ability to join NATO if it refused to sign an immunity agreement. See Kenneth Roth, executive director of Human Rights Watch, letter to Secretary of State Colin Powell, June 30, 2003, http://www.hrw.org/press/2003/06/usa063003Itr.htm.
98. See also Bradley Graham, "Rumsfeld Lauds Croatia's Efforts," Washington Post, February 9, 2004.
99. Quoted in Adam Isacson, "The Impact on Latin America of the Service-Members' Protection Act," testimony before the Western Hemisphere, Peace Corps, and Narcotics Affairs Subcommittee, Senate Committee on Foreign Relations, 109th Cong., 2d sess., March 8, 2006. See also "Courting III Will," Los Angeles Times, November 26, 2005;
100. and Allison Danner and Beth Simmons, "Why States Join the International Criminal Court," unpublished paper, Harvard University, 2007.
101. As Isacson explains, the ASPA did not freeze all military aid programs. It froze four programs: International Military Education Training (IMET), Foreign Military Financing, Excess Defense Articles, and Emergency Drawdowns. The freezing of the IMET program drew the most criticism domestically. See Isacson, "Taking 'No' for an Answer."
102. Coalition for the International Criminal Court, "Developments on U.S. Bilateral Immunity Agreements (BIAs): U.S. Removes Military Training Sanctions from BIA Campaign and Issues Economic Aid Waivers to Some ICC Member States," December 2006, http://www.iccnow.org/documents/CICCFS- UpdateWaivers_11Dec06_final.pdf; and Isacson, "Taking 'No' for an Answer."
103. Section 1212 reads: "Repeal of limitations on military assistance under the American ServiceMembers' Protection Act of 2002."
104. See Xaviera Fontan, "A Policy Analysis of the American Service-Members' Protection Act and Nethercutt Amendment Prohibitions on Non-Signatories of Article 98 Agreements," unpublished paper, Fletcher School of Law and Diplomacy, Tufts University, March 10, 2008.
105. The Constitution stands above both statutes and treaties. See Reid v. Covert, 354 U.S. 1 (1957).
106. See Taylor v. Morton, 23 F. Cas. 784 (CCC. Mass. 1855),
107. affirmed on other grounds, 67 U.S. (2 Black) 48l" (1862),
108. as well as Whitney v. Robertson, 124 U.S. 190 (1888). This rule is not unique to American jurisprudence. Austria, Germany, Poland, and Russia, for example, use this rule of statutory construction.
109. But to accommodate domestic and international obligations, the Supreme Court articulated the "Charming Betsy" doctrine, which urges judges to interpret federal statutes narrowly so as to avoid conflict with treaties. See Harold Hongju. Koh, "International Law as Part of Our Law," American Journal of International Law, Vol. 98, No. 1 (January 2004), p. 44;
110. and Detlev F. Vagts, "The United States and Its Treaties: Observance and Breach," American Journal of International Law, Vol. 95, No. 2 (April 2001), pp. 320-323.
111. The United States, upon the advice and consent of the Senate, ratified the VCCR in 1969, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820. Article 36(1)(b) of the VCCR provides that if a person detained by a foreign country "so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State" of such detention, and "inform the [detainee] of his righ[t] to request assistance from the consul of his own State."
112. On Breard, compare Carlos Manuel Vazquez, "Night and Day: Coeur d'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine," Georgetown law Journal, Vol. 87, No. 1 (October 1998), pp. 1-101,
113. with the "revisionist" Curtis A. Bradley, "Breard, Our Dualist Constitution, and the Internationalist Conception," Stanford Law Review, Vol. 51, No. 3 (February 1999), pp. 529-566. Years later, in Sanchez Llamas v. Oregon, 548 U.S. 331, the Supreme Court held that, contrary to the ICJ's determination, the VCCR did not preclude the application of state default rules.
114. For examples of the international reaction, see David Stout, "U.S. Executions Draw Scorn from Abroad," New York Times, April 26, 1998;
115. and Mary Beth Warner and Jerry Kammer, "Germans Knock U.S. Justice," Arizona Republic, March 4, 1999. For a discussion of the cases and issues,
116. see Aparna Sridhar, Comment, "Creating Judicial Remedies for Violations of the Vienna Convention on Consular Relations: A Proposed Resolution to Medellin v. Dretke," Stanford Journal of Civil Rights & Civil Liberties, Vol. 2, No. 2 (August 2006), pp. 333-360.
117. See also Evan J. Criddle, "The Vienna Convention on the Law of Treaties in U.S. Treaty Interpretation," Virginia Journal of International Law, Vol. 44, No. 2 (Winter 2004), pp. 431-500.
118. Anthony N. Bishop, "The Death Penalty in the United. States: An International Human Rights Perspective," South Texas Law Review, Vol. 43, No. 4 (Fall 2002), pp. 1119-1120. Bishop cites official statements from Britain, France, and Spain, which signal Europe's unwillingness to abet executions.
119. Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, April 24, 1963, [1970] 21 U.S.T. 325, T.I.A.S. No. 6820.
120. John B. Quigley, "Toward More Effective Judicial Implementation of Treaty-Based Rights," Fordham International Law Journal, Vol. 29, No. 3 (February 2006), pp. 568-569.
121. Office of the Press Secretary, "Implementation of Human Rights Treaties, "Executive Order, No. 13107 (Washington, D.C.: White House, December 10, 1998);
122. and Nina Schou, "Instances of Human Rights Regimes," in Thomas M. Franck, ed., Delegating State Powers: The Effect of Treaty Regimes on Democracy and Sovereignty (Ardsley, N.Y.: Transnational, 2000), p. 209.
123. Avena and Other Mexican Nationals (Mexico v. United States of America), 2004 ICJ 128 (March 31) [hereinafter Avena].
124. Ibid.
125. Ibid.
126. Medellin v. Dretke, 544 U.S. 660, 662 (2005);
127. and Medellin v. Texas, No. 06-984, 552 U.S. _, slip opinion, March 25, 2008, p. 6.
128. Avena, pp. 53-55.
129. Ibid., pp. 56-57, 72.
130. Medellin, 544 U.S., p. 663,
131. quoting George W Bush, memorandum to the Attorney General, February 28, 2005: "'I have determined, pursuant to the authority vested in me as President by the Constitution and laws of the United States, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), 2004 ICJ 128 (March 31), by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.'" Medellin v. Texas, 552 U.S. _(2008) explains that the Supreme Court dismissed as improvidently granted Medellin's first petition for certiorari because "the state-court proceedings might have provided Medellin with the review and reconsideration he requested, and because his claim for federal relief might otherwise have been barred," and adding that the Texas Court of Criminal Appeals dismissed Medellin's second state habeas petition as an abuse of the writ because neither the Avena decision nor the president's memorandum was "binding federal law."
132. Medellin v. Texas, 552 U.S. _(2008).
133. Ibid.
134. And, as discussed above, even if the treaty is self-executing, it may be superseded by a later, inconsistent legislative enactment.
135. Andreas Paulus, "From Neglect to Defiance? The United States and International Adjudication," European Journal of International Law, Vol. 15, No. 4 (September 2004), pp. 783, 808, citing President George W. Bush, address on National Public Radio, December 9, 1998.
136. See Amnesty International, "U.S. Withdrawal from VCCR Protocol Is Step Backwards," March 10, 2005, http://www.arfmestvusa.org/abolish/ document.do?id-C8544612FF018A4685256FC000630122.
137. Hadar Harris, '"We Are the World'-Or Are We? The United States' Conflicting Views of the Use of International Law and Foreign Legal Decisions," Human Rights Brief, Vol. 12 No. 3 (Spring 2005), pp. 5, 6.
138. Ibid.
139. William J. Aceves, "Murphy v. Netherland," American Journal of International Law, Vol. 92, No. 1 (January 1998), pp. 87, 91.
140. Ibid. In Boumediene v. Bush, 127 SCt. 3078 (2007),
141. and Al Odah v. United States of America, 127 SCt. 3067 (2007), the Supreme Court also will likely assess whether international standards apply to U.S. courts. Amici for the detainees argue that international law entitles detainees to certain fundamental rights, including those enshrined in the Geneva Conventions and Article 9 of the ICCPR. According to the amici, the failure of the United. States to follow the Geneva Conventions "weakens the entire international legal regime and invites other signatories to disregard their own treaty obligations." Boumediene v. Bush, Nos. 06-1195, 06-1196, 2007 WL 2441573 (Appellate Brief of International Humanitarian Law Experts as Amici Curiae in Support of Petitioners, 2007). Amici for the U.S. government, however, counter that the ICCPR creates no obligations in U.S. federal courts and is not applicable to territories leased by nations.
142. "Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems," May 26, 1972, 23 UST 3435, TIAS No. 7503 (hereinafter the ABM treaty).
143. Ibid.
144. President Ronald Reagan, address to the Nation on Defense and National Security, Public Papers 437, 443, March 23, 1983.
145. 23 U.S.T. at 3456;
146. and T.I.A.S. no. 7503 at 22. Agreed Statement D declares: "In order to insure fulfillment of the obligation not to deploy ABM systems and their components except as provided in Article III of the Treaty, the Parties agree that in the event ABM systems based on other physical principles and including components capable of substituting for ABM interceptor missiles, ABM launchers, or ABM radars are created in the future, specific limitations on such systems and their components would be subject to discussion in accordance with Article XIV of the Treaty."
147. Abraham D. Sofaer, "The ABM Treaty and the Strategic Defense Initiative," Harvard Law Review, Vol. 99, No. 8 (June 1986), pp. 1972-1985, at p. 1974.
148. Abram Chayes and Antonia Handler Chayes, "Testing and Development of 'Exotic' Systems under the ABM Treaty: The Great Reinterpretation Caper," Harvard Law Review, Vol. 99, No. 8 (June 1986), pp. 1956-1971.
149. S. Rep. No. 164, 100th Cong., 1st sess. (1987);
150. 133th Cong. Rec. S12,498 (daily ed. September 22, 1987);
151. and 82 ICJ, p. 151.
152. Eric Schmitt and Steven Lee Meyers, "Clinton Lawyers Give a Go-Ahead to Missile Shield," New York Times, June 15, 2000.
153. See also Lisbeth Gronlund and David Wright, "The Alaska Test Bed Fallacy: Missile Defense Development Goes Stealth," Arms Control Today, Vol. 31, No. 7 (September 2001).
154. Kucinich v. Bush (D.D.C., December 30, 2002).
155. See also "Contemporary Practice of the United States Relating to International Law," American Journal of International Law, Vol. 97, No. 1 (January 2003), p. 206.
156. Michael Ignatieff's edited collection provides insight into each of these explanatory avenues. See Ignatieff, American Exceptionalism and Human Rights.
157. Andrew Moravcsik, "Why Is U.S. Human Rights Policy So Unilateralist?" in Patrick and Forman, Multilateralism and U.S. Foreign Policy, pp. 358-359.
158. See Jack N. Rakove, "Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study," Perspectives in American History, Vol. 1 (1984), p. 236. For the most comprehensive collection of the debates at Philadelphia,
159. see Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols., rev. ed. (New Haven, Conn.: Yale University Press, 1966 [1911]). But the extent and division of such power set forth in the Constitution has become the subject of much scholarly debate, which is too complex to be detailed here. See especially the writings of Louis Henkin, Harold Hongju Koh, and Carlos Manuel Vazquez, in contrast with Curtis Bradley, Jack Goldsmith, and Eric Posner.
160. On Bricker and his legacy, see Kaufman, Human Rights Treaties and the Senate; and Louis Henkin, "U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker," American Journal of International Law, Vol. 89, No. 2 (April 1995), pp. 341-350.
161. Monica Mange, "The UN Wants Your Children: Explaining American Exceptionalism in the Convention on the Rights of the Child," unpublished paper, Harvard Law School, 2004. Her sources include Susan Kilbourne, Comment, "Closing Remarks, Legal Reform & Children's Human Rights," St. John's Journal of Legal Commentary, Vol. 14, No. 2 (Spring 2000), p. 464.
162. Susan Kilbourne, "U.S. Failure to Ratify the UN. Convention on the Rights of the Child: Playing Politics with Children's Rights," Transnational Law & Contemporary Problems, Vol. 6, No. 2 (Fall 1996), p. 439. Kilbourne's article is one of several in the fall 1996 issue analyzing the CRC.
163. See John Leo, "They Hate Your Mommy," U.S. News and World Report, July 1, 2002, p. 35. Many of these claims are patently erroneous.
164. See Harold Hongju Koh, "Why America Should Ratify the Women's Rights Treaty (CEDAW)," Case Western Reserve Journal of International Law, Vol. 34, No. 3 (Summer 2002), pp. 263-276. For the text of CEDAW, see http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.
165. Samantha Power, "A Problem from Hell": America and the Age of Genocide (New York: Basic Books, 2002); and Mange, "The UN Wants Your Children."
166. See the chart in Moravcsik, "Why Is U.S. Human Rights Policy So Unilateralist?" p. 185.
167. Andrew T. Guzman, "A Compliance-Based Theory of International Law," California Law Review, Vol. 90, No. 6 (December 2002), p. 1823;
168. and Rachel Brewster, "Unpacking the State's Reputation," unpublished paper, Harvard Law School, 2008.
169. Three of Europe's leaders leveled implicit criticisms at the United States in a joint op-ed they wrote in 1999. British Prime Minister Tony Blair, French President Jacques Chirac, and German Chancellor Gerhard Schröder noted that "failure to ratify the Comprehensive Test Ban Treaty will be a failure in our struggle against proliferation" and will "expose a fundamental divergence within NATO." See Chirac, Blair, and Schröder, "A Treaty We All Need," New York Times, October 8, 1999. Regarding Kyoto, Swedish Environment Minister Kjell Larsson made clear that the protocol "is still alive, and no individual country has the right to
170. See BBC News, "Europe Backs Kyoto Accord," March 31, 2001, http://news.bbc.co.uk/1/hi/world/europe/1252556.stm. After the United States refused to support a proposed legally binding protocol to strengthen the BWC or any efforts to revise the protocol in 2001, a Geneva official remarked, "Many people were very, very angry at what the U.S. did. Even diplomats who had, in the past, supported the U.S. could no longer support them at all. [The U.S. proposal] just killed any chance at agreement on a final declaration."
171. See Seth Brugger, "BWC Conference Suspended after Controversial End," Arms Control Today, Vol. 32, No. 1 (January/February 2002), pp. 34-35.
172. See also John Gerard Ruggie, "American Exceptionalism, Exemptionalism, Global Governance," in Ignatieff, American Exceptionalism and Human Rights, chap. 11. Ruggie argues that U.S. behavior will become increasingly costly in a more internationalized world with stronger legal norms.
173. Pew Global Attitudes Project, "Rising Environmental Concern in 47-Nation Survey: Global Unease with Major World Powers," 47-Nation Pew Global Attitudes Survey, http://pewglobal.org/reports/pdf/256.pdf. Quoting: "In the current poll, majorities in 25 of the 47 countries surveyed express positive views of the U.S. Since 2002, however, the image of the United States has declined in most parts of the world. Favorable ratings of America are lower in 26 of 33 countries for which trends are available." Ibid., p. 3.
174. Ibid.
175. Ibid.
176. Ibid.
177. Ibid.
178. Quoting: "In 30 of 34 countries where trends are available (including the U.S.), support for America's anti-terrorism efforts has dropped since our 2002 poll, which was conducted just months after the Sept. 11 attacks. The falloff has been especially steep in Europe, with decreases of at least 25 percentage points in Ukraine, France, Great Britain, Poland, Germany, Italy, and the Czech Republic. But support has also weakened in the Western Hemisphere, with sharp drops in Venezuela and Canada. Even in the U.S., the percent who favor the war on terrorism has fallen 19 points, from 89% to 70%. Currently, support for the U.S.-led efforts to fight terrorism is at or above 50% in only 16 of 47 countries. And in several countries that have experienced terrorist attacks in recent years, such as Indonesia, Bangladesh, Spain, Jordan, Morocco, Pakistan, and Turkey, majorities say they oppose America's war on terrorism." Ibid., p. 22.
179. "The current survey reveals extensive criticism of American foreign policy, including the widespread belief that the U.S. acts unilaterally in the international arena. Majorities in 30 of 46 nations say that when making foreign policy decisions the U.S. does not take into account the interests of countries like theirs." Ibid., p. 20.
180. See also Andrew Kohut and Bruce Stokes, America against the World: How We Are Different and Why We Are Disliked (New York: Times Books, 2006);
181. and the articles in AHR Forum, "Historical Perspectives on Anti-Americanism," American Historical Review, Vol. 114, No. 4 (October 2006), pp. 1041-1130.
182. Stephen M. Walt, Taming American Power: The Global Response to U.S. Primacy (New York: W.W. Norton, 2006).
183. See Sebenius, Negotiating the Law of the Sea;
184. and Scheffer, "The United States and the International Criminal Court."
185. Robert D. Putnam, "Diplomacy and Domestic Politics: The Logic of Two-Level Games," International Organization, Vol. 42, No. 3 (Summer 1988), pp. 427-460.
186. See generally Robert Dallek, Franklin D. Roosevelt and American Foreign Policy, 1932-1945 (New York: Oxford. University Press, 1979).
187. Richard Elliot Benedick, Ozone Diplomacy: New Directions in Safeguarding the Planet (Cambridge, Mass.: Harvard University Press, 1998), pp. 51-67.
188. James K. Sebenius, "Designing Negotiations toward a New Regime: The Case of Global Warming," International Security, Vol. 15, No. 4 (Spring 1991), pp. 110-148;
189. and Harold K. Jacobson, "Climate Change: Unilateralism, Realism, and Two-Level Games," in Patrick and Forman, Multilateralism and U.S. Foreign Policy, pp. 416-432.
190. Interestingly, many companies have now reversed course and joined lobbying efforts to control greenhouse gas emissions. Development of energy-saving technologies promises lucrative future returns.
191. Eunjeong Kim, "The Role of the Executive Branch in Overcoming Ratification Obstacles: U.S. Ratification of the Child Soldier Optional Protocol," unpublished paper, Fletcher School of Law and Diplomacy, Tufts University, 2003. On the importance of executive strategy,
192. see also Jeffery S. Lantis, "Leadership Matters: International Treaty Ratification in Canada and the United States," American Review of Canadian Studies, Vol. 35, No. 3 (Autumn 2005), pp. 383-421.
193. Mariano-Florentino Cuéllar, "The International Criminal Court and the Political Economy of Antitreaty Discourse," Stanford Law Review, Vol. 55, No. 5 (May 2003), pp. 1597-1632.
194. See Power, "A Problem from Hell."
195. See Steven Kull, "Public Attitudes toward Multilateralism," in Patrick and Forman, Multilateralism and U.S. Foreign Policy, pp. 99-118.