26. State Department Legal Adviser's remarks "Transatlantic Approaches to the International Legal Regime in an Age of Globalization and Terrorism."
Remarks at the Atlantic Council Workshop regarding
Transatlantic Approaches to the International Legal Regime
in an Age of Globalization and Terrorism
November 1, 2005
Let me begin by thanking the Atlantic Council for hosting this workshop and inviting me to participate in it.
I have actually been looking forward for quite some time to being with you tonight. I am a strong supporter of the Council’s mission of promoting dialogue on common issues and supporting educational and exchange programs to train the next generation of leaders. This interest comes naturally to me, as I am myself a product of the Atlantic Alliance. I was born in Paris when my father was assigned to SHAPE Headquarters in the years before some of the differences that the Atlantic Council is devoted to discussing forced the move of NATO and SHAPE from Paris to Brussels.
I am especially pleased to have this opportunity to consider with you one of the most important issues in the transatlantic relationship — namely, the differing approaches of the United States and Europe toward international law and legal institutions. We are best served when we understand and address our differences, but avoid caricatures. This is why, as Legal Adviser to the State Department, I am particularly grateful for workshops such as these, which take a serious-minded approach toward understanding and resolving transatlantic differences. I know that Secretary Rice, as a professor of international relations, shares this view, and I look forward to reporting back to her and others in the Department some of the conclusions and recommendations from today’s workshop.
We hear increasingly that there is a divide between the United States and Europe over our approaches to international law. The standard line in Europe seems to be that Europeans are committed to international law and international institutions, while the United States increasingly is not. Indeed, over the last four years, the United States has been criticized by some in Europe for acting “lawlessly.” The United States refused to ratify the Kyoto Protocol. We unsigned the Rome Statute. We withdrew from the ABM Treaty. We went to war in Iraq without a legal basis under international law. And we have violated the Geneva Conventions by holding terrorists in Guantánamo without giving them lawyers or charging them with crimes.
This is a troubling pattern of criticism, not just because of what is said about U.S. conduct, but also because of what it asserts about the future of transatlantic relations. This transatlantic divide is invoked by some who seem to despair of bridging it — claiming, for example, that on international questions “Americans are from Mars and Europeans are from Venus” — or who blame the divide on the supposed European pursuit of a world order that is hostile to nation states and, moreover, to democratic self government.
What I would like to do tonight is examine whether there actually is a deep divide between the United States and Europe on questions of international law. If so, how significant is this divide, what are the reasons for it, and what should be done about it? In reflecting on these questions, I am mindful of Secretary Rice’s observation in Paris earlier this year that “it is time to turn away from the disagreements of the past.” My objective, instead, is to try to address concerns that we are likely to suffer future disagreements, concerns that I think are largely misplaced.
When one looks closely at the criticisms of U.S. policy, many seem to recast transatlantic policy differences as disputes about international law. There are several recurring categories of mistakes, two of which are closely related. First, the United States is often criticized for having failed to sign or ratify a treaty. The Kyoto Protocol is a good example. The United States did not think the Protocol was sound public policy and thought it would harm the U.S. economy, so it did not ratify the Protocol. This decision was perfectly legal under international law.
A second, related criticism attacks decisions by the United States to withdraw from international agreements. U.S. conduct with regard to the Rome Statute, which was initially subject to criticism on the ground that the United States was failing to ratify, became the subject of still more vigorous criticism when this Administration “unsigned” the agreement — that is, when it notified the UN, as depository of the Rome Statute, that we do not intend to become a party. As U.S. officials explained, this was a lawful solution to a political disagreement. While the United States is fully committed to the principle of accountability, it disagrees with the ICC’s method for achieving accountability; moreover, from the U.S. perspective, the ICC claims an objectionable form of jurisdiction over non‑party states and infringes on the Security Council’s primary role under the UN Charter for the maintenance of international peace and security. A second example is the ABM Treaty between the United States and the Soviet Union. In 2002, President Bush, in accordance with Article XV of the Treaty, formally notified the United States’ withdrawal. The Administration was accused by some observers of disregarding international law. Exactly the opposite is true: The United States reviewed the ABM Treaty, determined that the Treaty had become outdated, negotiated a new arrangement with Russia, and withdrew in accordance with the express terms of the Treaty.
Similarly, in March of this year, after the International Court of Justice had issued rulings in the LaGrand and Avena cases that involved detailed review of U.S. criminal law proceedings, the United States announced that it would withdraw from the Optional Protocol to the Vienna Convention on Consular Relations, which is clearly permissible under international law. Moreover, we withdrew only after the President had determined that the United States would comply with the ICJ’s ruling in the Avena case.
Conflating these two types of conduct — the failure to subscribe to international agreements, and the decision to withdraw from international agreements — with a disregard for international law, as critics often do, is confused. No one doubts that states enjoy the capacity to decide for themselves which international agreements are in their national interest, and failing to endorse certain agreements due to national interests has no bearing on a state’s reputation for abiding by international law.
A state’s decision to refrain from becoming a party to a treaty does not mean it has abandoned multilateralism. The United States has initiated numerous climate partnerships in the last several years, establishing joint projects on climate change science, cleaner energy technologies and greenhouse gas emissions. Failing to ratify the Kyoto Protocol does not mean that the United States opposes multilateral efforts at addressing climate issues, any more than the failure of other states to agree to U.S. climate initiatives means that those states are isolationist. Similarly, the decision to unsign the Rome Statute does not indicate a distrust of international mechanisms generally or even international criminal tribunals specifically. The United States has, in fact, played a key role in setting up, funding, and supporting international criminal tribunals to bring perpetrators of serious crimes to justice in the former Yugoslavia, Rwanda and Sierra Leone.
Criticisms of U.S. decisions to withdraw from international agreements are similarly misplaced, and equally counterproductive. Both with regard to the Rome Statute and the ABM treaty, U.S. behavior was designed to remove any doubts regarding its legal commitments, and it observed carefully the international legal rules for notification. It simply cannot be preferable for the United States to retain a more ambiguous posture, even at the risk of behaving in a way inconsistent with its obligations. And to state the obvious, criticizing as lawless a state’s decision to unsign or withdraw from an international agreement creates a substantial disincentive to sign, or become a party to, a treaty in the first place. The United States prefers the customary international law norms reflected in the Vienna Convention on the Law of Treaties, which recognize that permitting withdrawal serves both sovereignty interests and the integrity of treaties.
A third type of criticism — disagreements with U.S. interpretations of international instruments — is somewhat different, though here, too, critics are too quick to regard reasonable differences of opinion as evidence of a disregard for international law. This is not a question of differing commitments to international law, or even differing legal methodologies. Like our European allies, when the wording of a treaty is unclear or when it is not obvious how a treaty should be applied in some unforeseen circumstance, we look in good faith to ordinary meaning of the text and its object and purpose, related agreements, and past practice, among other things. Unsurprisingly, differences may arise; it is no secret that treaty language is often drafted so as to permit more than one interpretation, in the expectation that disagreements will be worked out among states and if necessary resolved through further negotiations. The point, in any event, is that interpretive disputes are to be expected, and do not connote a disregard for international law; were it otherwise, the number of good-faith disagreements the EU and the United States have had in WTO cases would have branded us both as international outlaws.
The interpretive disputes recently invoked to evidence a transatlantic divide have tended to involve the use of force and the laws of war. Although the United States and its European allies have not always agreed on the answer to international legal questions relating to the use of force — nor has all of Europe agreed — everyone remains committed to a system where the rule of law governs this core issue. This is why President Bush has consistently underscored the legal bases for our actions in Iraq and Afghanistan in UN Resolutions. In Afghanistan, after the UN Security Council recognized the right of countries attacked on September 11 to use force in self defense, on the day we initiated hostilities in Afghanistan, the United States notified the Security Council that we were exercising our right to use force in self defense under Article 51 of the United Nations Charter. And in Iraq, the United States relied on the authority of UN Security Council Resolutions 678 and 687 to use all necessary means to compel Iraq to comply with its international obligations. This was not a new or novel legal argument. This was the legal basis relied on by the United States to police the no-fly zones for nearly ten years and that had been recognized by the Secretary General of the UN. Of course, one can reasonably argue as a policy matter that the United States and coalition partners should not have used force without a new endorsement by the Security Council. But this is again a policy argument masquerading as a legal criticism. The United States has never suggested that the Resolutions could be disregarded, and we have acted consistently with our understanding of the Resolutions. And the United States believed, and continues to believe, that it was enforcing compliance by Iraq and Afghanistan with their international legal obligations, which is a point that sometimes gets lost in attempts to shift the focus to U.S. conduct.
Even with respect to U.S. detention of terrorists in the war on terrorism, many European critics have been too quick to disparage U.S. actions as violations of the Geneva Conventions or other international law, without being able to point to particular provisions we are supposed to have violated. As a lawyer committed to the rule of law and individual rights, I can certainly understand a policy yearning that international rules regulate the detention of any human beings, but in fact the international rules applicable to combatants who do not themselves observe international humanitarian law are far from clear. The reality is not that the United States has acted lawlessly, in violation of its international obligations; rather, the United States has not adopted policies or acted in a way that some critics in Europe would like us to do.
In short, I do not mean to deny that there are transatlantic differences on international law issues; examined closely, however, they have little to do with respect for international law and institutions. Rather, the differences may be rooted more in our different approaches to supranational institutions, which stem from our respective experiences in World War II and its aftermath. European integration is unlike anything that U.S. citizens have experienced, and the positive experience with European supranational institutions may account for the lesser skepticism that Europeans have toward international institutions.
But progressive multilateralism should not be confused with the respect for international law and institutions. Return for a moment to the disagreement between the United States and Europe over Kyoto. One of the U.S. objections was that the Kyoto regime failed to enlist China, India, and developing countries on equal terms, and that once that agreement was finalized much of the opportunity to enlist such states in legally binding commitments would be lost. Since Kyoto’s entry into force, the United States and Australia have sought a different sort of multilateral solution in which China and India, together with several other states, are equal participants in a voluntary regime. Not only did the U.S. failure to ratify Kyoto not signal an abandonment of multilateralism, it proceeded on the defensible view that multilateralism may be most effective when it proceeds on more realistic assumptions about the incentives of states.
Consider another sticking point for some critics, the U.S. failure to ratify certain human rights instruments like the Convention on the Elimination of All Forms of Discrimination against Women — CEDAW. It seems misguided to concentrate criticism on the United States, or to emphasize differences in the legal posture of the United States and European states, when blatant violators of women’s rights are welcomed as parties to the treaty, many with reservations that broadcast a comprehensive disagreement with the treaty’s articles. International law and institutions should represent achievements in multilateralism, not provide cover for states in a way that actually impairs the multilateral promotion of human rights.
Moreover — and this point is equally fundamental — multilateralism is not always a viable option, and the failure to act multilaterally is not tantamount to disregarding international law. Acting individually should not be confused with acting unlawfully. As President Bush stated in a November 2003 speech in London, “Our first choice, and our constant practice, is to work with other responsible governments. We understand, as well, that the success of multilateralism is not measured by adherence to forms alone, the tidiness of the process, but by the results we achieve to keep our nations secure.” This is why the United States views the support of NATO in Kosovo, the support of numerous other states in the intervention in Iraq and efforts at rebuilding it, and the recent reflections of the Secretary-General’s High Level Panel on the future of use of force rules as examples of successful multilateralism.
Finally, we must confront the fact that both multilateralism and international law are undergoing considerable stress, as reflected in recent controversies regarding the law of war and occupation — in particular the Hague Regulations and the Geneva Conventions. We are a country that believes in international law and we have gone to great lengths to ensure that our actions are consistent with the Hague Regulations, the Geneva Conventions and other international obligations. Moreover, our lawyers — including I am happy to say numerous lawyers from the Office of the Legal Adviser — worked hard, side by side other Coalition partner lawyers and Iraqi lawyers, to ensure that our actions during the temporary administration of Iraq were consistent with international law. The disagreements that remain are primarily disagreements involving interpretation, like the kind I touched on earlier, rather than disagreements about the importance of international law. We must not allow the relatively small differences we have with some in Europe to prevent us from joining together to combat the far larger challenges to our common values with which we are currently confronted.
This point about values is one that is obvious but still needs emphasis. The rule of law has been an essential element of both U.S. and European democracies, as well as the European integration project, so it is unsurprising that the United States and its European allies have been the key players in the negotiation of treaties and the establishment of international institutions, including most notably the UN system.
This shared commitment to law and legal institutions has not been lost, and will not be. This Administration recognizes, of course, that disagreements about the application of international law in the Iraq context have raised questions in the international community regarding our commitment to comply with our international obligations. But members of the Administration have been emphatic that this commitment is not at stake. Secretary Rice has repeatedly reaffirmed our support for international law and institutions, including in remarks this spring before the American Society of International Law. In those remarks, the Secretary stated that, “[o]ne of the pillars of [our] diplomacy is our strong belief that international law is vital and a powerful force in the search for freedom. The United States has been and will continue to be the world’s strongest voice for the development and defense of international legal norms.” I have personally been delighted to engage directly with my European counterparts to discuss our shared interests. In June, I visited with the heads of the various international legal institutions in The Hague, including the judges of the International Court of Justice. In September, I attended the semiannual meeting of the Council of Europe’s Committee of Legal Advisers on Public International Law in Strasbourg. And at the end of last month, I met with legal advisers of many foreign ministries in New York as part of International Law Week at the UN.
The United States, like Europe, recognizes that the test of its commitment to international law values comes when questions are not symbolic, but rather in difficult circumstances when compromises are required. I have already mentioned how the President made an extraordinary decision to ensure domestic compliance with the ICJ decision regarding the Vienna Convention on Consular Relations, despite evident opposition to such a step. As another example, Secretary Rice worked hard last spring to find an acceptable formula for a Security Council resolution to address the issue of accountability in Sudan. While the United States continues to maintain fundamental objections to the ICC, we did not veto UNSCR 1593, which referred the situation in Darfur to the ICC, because we recognized the need for the international community to work together to end the atrocities in Sudan and speak with one voice to bring to account the perpetrators of those crimes. Moreover, we have re-emphasized that we respect the right of other countries to become party to and support the ICC, but we expect ICC parties to respect our right not to become a party and not to be covered by the Rome Statute. In short, the United States will continue to be a strong advocate of international responsibility in all its dimensions — not just in the form of criminal accountability, but also peacekeeping and related humanitarian efforts in the Sudan and other crisis spots — and we know we will be working with our European allies in these endeavors.
None of this will prevent disagreements from arising from time to time on matters of deep concern to both the United States and Europe, but I am quite skeptical that these will reflect some kind of deep or growing transatlantic divide.
While many commentators seem intent on emphasizing differences between the United States and Europe on questions of international law and legal institutions, in fact, the United States and Europe share — and have historically shared — common understandings and objectives on these matters. At this time of terrorist threats to both U.S. and European societies, we must build on our commonalities and avoid having our differences divide us in a way that prevents cooperation and progress on the critical issues of our day — issues which shape global affairs and world history.
This Administration remains committed to expanding the rule of law both in the domestic affairs of states and in their relations with each other. We remain committed to promoting the development of international law and its institutions. We intend to work with our European allies to achieve these goals, and we plan to talk more clearly — and more often — about these issues as we go forward.