Summary of the breakout conversation “United States and International Law” at the 2009 Annual Members’ Conference.
Ms. Elizabeth Andersen, Executive Director, American Society of International Law
Hon. John Bellinger, III, Former Legal Advisor, Department of State
Moderated by Dr. Frances Burwell, Vice President, Atlantic Council
This session was held under Atlantic Council Rules, defined by President and CEO Frederick Kempe as “Chatham House Rules with military enforcement.” Below is a general summary of the topics discussed.
To what extent do President Obama’s policies on international law represent a change from those of his predecessor? This session revealed that the answer is far from clear. The perception that the Bush administration showed little regard for international law stems mostly from policies enacted during his first term. However from 2006-2008, the United States ratified 90 treaties— the most ever in history. While most of these successes involved “picking the low-hanging fruit,” ratifying longstanding tax and extradition treaties, administration officials also dedicated their efforts to more controversial cases, such as the Law of the Sea Treaty. The Bush administration’s initial hostility towards the creation of the International Criminal Court belies later cooperation in information sharing with the Court and Bush’s appeal for Sudanese President Omar al-Bashir to be tried before the Court. The Medellín case, in which the president signed an executive order to uphold a challenge by the International Court of Justice to a death row sentence by a Texas court (later overturned by the Supreme Court), was perhaps the most compelling example of a commitment to international law in the later Bush years.
How can the Obama administration make further progress? Allies who expect dramatic differences from President Obama may be surprised by the difficulties ahead. The more well-known treaties that have not been ratified are among the most controversial and will prove difficult to pass through Congress. The Law of the Sea treaty is still not ratified, but the timing to push it through Congress remains limited in the midst of more pressing legislative debates. In fact, the U.S. legislative process makes it difficult for any U.S. administration to sign on to an internationally binding treaty. As the Medellín case illustrated, the strength of the U.S. judiciary also presents important challenges to U.S. adherence to international law. Many legislators (and judges) do not see the value of treaties that commit the United States to reciprocal international obligations. While this mistrust can partly be addressed by educating lawmakers and involving them in the treaty process, it may also require a more careful approach by the international community so as to avoid drafting treaties that will prove impossible to ratify in practice. The views of U.S. legislators reflect important cultural differences in how Americans view international law versus Europeans. Americans see the national legal system as “the gold standard,” which has proven resilient and capable of challenging unjust state laws. Meanwhile, international law is seen as an extension of international politics, with international legal forums becoming politicized by national interests. If international forums such as the International Criminal Court (ICC) evolve in a way that demonstrates restraint and neutrality, future U.S. administrations are more likely to view cooperation differently. This does not mean that the Obama administration is likely to reverse the U.S. position on the ICC anytime soon. It will however continue to cooperate with the court and perhaps seek observer status. Participation in the Special Working Group on the Crime of Aggression presents a good opportunity to influence the direction the ICC takes on matters of importance to U.S. interests.
While President Obama’s announcement to close Guantanamo was a much needed step forward, practical implementation of that policy remains a challenge. The Bush administration began the process of relocation, but the remaining prisoners are the most difficult cases. European allies have proven to be more willing to take on prisoners than some might have thought. One speaker pointed to the Obama administration’s treatment of detainees as an important difference from the Bush administration that is not lost on our allies and which may propel greater cooperation. Despite these efforts, it will be hard to close Guantanamo without moving some detainees to U.S. soil, a decision that would require Congress to lift its previous restrictions. However, convincing Congress may prove too difficult a task for the Obama administration, which cannot risk appearing “soft on terrorism.”
Despite these challenges, our speakers saw the closure of Guantanamo by the set deadline and passage of the Treaty on the Law of the Sea, as the two most important priorities for the Obama administration. The gains President Obama has made in buying international support may lead to greater understanding by European allies of the inherent limitations of the U.S. system, and cooperation to find ways forward in light of these considerations.
– Summary by Cynthia Romero, Assistant Director, Transatlantic Relations Program