Sovereignty über Alles
Is the United States an exception when it comes to abiding by international law?
April 24, 2002
It is evident that the current U.S. administration is imbued with an extreme, negative attitude toward international law and treaties. Nobody can deny the key conflict between the notion of national sovereignty which is fundamental in international law, and the duty of states to fulfill time terms of the international agreements and treaties into which it has entered.
But the Bush Administration resolves it by finding favor with the former. This extends to the point where some members of the Bush administration assert that there is, in fact, no such thing as international law; there is only national sovereignty.
Ideologically satisfying though that stance may be, it is plainly dishonest. The United States participates in a whole panoply of international laws daily — laws regulating trade, communications, aviation, passage on the high seas, diplomatic relations, to name only a minor portion of relevant agreements and conventions.
The United States is unhesitating in taking recourse to international law whenever its own interests have been jeopardized, for example, to protect its nationals and its commerce.
What the extreme view held in the Bush administration expresses is nothing more than a pathetic selfishness — the wish to arbitrarily pick and choose between portions of international law, which at any given time it sees as favoring its interests or impeding them.
One member of the administration, U.S. State Department Director for Policy Planning Richard Haas, has described this stance as à la carte multilateralism. Others in the Bush administration have justified the approach because the United States is the sole superpower and is therefore exceptional.
Contrast this stance with U.S. domestic law, where a vast industry exists within the United States directed at seeking to bend, find loopholes in, and seek advantageous applications of the law for individuals.
This often leads to changes in the law, but it rarely challenges the notion of the very existence of law as a mainstay of civilized society, other than by persons of an anarchist cast of mind, such as the Oklahoma City bomber, Timothy McVeigh.
A current key example of the United States placing itself outside the ambit of international law, as distinct from disagreeing with its specific formulation as it has a sovereign right to do, is its refusal to sign the Statute for the International Criminal Court on the ground that it would not be prepared to allow any American to be brought before the International Court.
Its objections to the statute could be remedied under the provisions of the statute. It could also seek to gain acceptance of amendments to the statute. Both of these actions would constitute an exercise of U.S. sovereignty.
Instead, its current attitude implies that American norms and values are distinct from or possibly superior to norms and values widely agreed to by the community of nation-states. It surely cannot imply that no American could ever commit the crimes over which the International Criminal Court (ICC) would have jurisdiction. That would be truly preposterous.
It is also a deeply disturbing stance given the role the United States played in the establishment and conduct of the trials of Nazi war criminals at Nuremberg and in the trial of Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia.
One of the gravest of those problems, nationally and internationally is the traffic in, and use of, narcotic drugs. It is a phenomenon, in a number of respects, not unlike the international arms trade. Arms, especially weapons of mass destruction, certainly have their addicts, of which Saddam Hussein is an example.
If the current U.S. administration were to apply to nuclear weapons the same approach it applies to narcotics — that of zero tolerance and “war on drugs” — because of their extreme danger to civilized society, the United States would surely join the ranks of the most determined nuclear weapon abolitionists.
What differentiates the two approaches? Is it held that narcotics are more threatening to life and social order than nuclear weapons, their proliferation, the doctrine of mutual assured destruction? Or is it that one goal — the abolition of narcotics — is seen as more within reach than the elimination of nuclear weapons or simply closer to homes and electorates?
Both areas are difficult, no doubt, but the idea that the problems of nuclear weapons, and the dangers they pose, are more distant and overall under better control than those of the now ubiquitous and growing use of narcotics is not supported by the facts.
Nuclear weapons simply appear less immediately threatening in the daily lives of families than do narcotics, but clearly they are present, around the clock, many on hair-trigger alert.
The new strategies and resources required to prevent the spread of nuclear weapons, and to move safely toward their elimination, would be less costly than those required for narcotics and would have more certain results. What has been absent is the will to make that commitment.
This is all the more tragic because nuclear arms control is an area redolent with proof of the principle that when a solution to a serious problem is postponed, its ultimate solution becomes more costly. The cost of the proposed national missile defense demonstrates this.
A new paradigm is now being asserted in the context of the proposed national missile defense system. This new paradigm expresses resignation from the job of strengthening non-proliferation arrangements, and it attempts to assign the blame for this to the treaties themselves, as if they had a life of their own — claiming that they are “hopelessly flawed.”
This resignation ensures that they remain flawed and places the specific protection of U.S. security vastly above any action by the United States to alter the security or threaten the environment.
In fact, this paradigm abandons the U.S. commitment to the eventual elimination of nuclear weapons and signals instead a national policy of indefinite reliance on nuclear weapons for protecting the security of the United States.
The United States is not alone among the nuclear-weapon states in proclaiming a commitment to the elimination of nuclear weapons while plainly behaving in the opposite direction. This hypocrisy on the part of the nuclear-weapon states is proving to be extremely dangerous. It will ultimately fail.
Existing nuclear-weapon states, particularly Russia and China, will not accept that the new U.S. defensive shield will have no impact on them. They will build new nuclear weapons in response.
The states already on the way to acquiring nuclear weapons will continue down that path, possibly assisted by nuclear-weapon states, and they will be joined by others.
The world will enter a new period of nuclear weapons development — a second nuclear arms race. It will do this because the strongest power, the United States, declared itself too weak, selfish or frightened.
Adapted from “Fatal Choice” by Richard Butler.
Copyright © 2001 by Richard Butler.
Used by permission of Westview Press.
Diplomat-in-residence at the Council of Foreign Relations Richard Butler, former head of the United Nations Special Commission (UNSCOM) to disarm Iraq is an expert in arms control, international security issues, the United Nations and the Middle East. He served as Australian Ambassador to the United Nations from 1992 to 1997, before serving as the head […]