Discussion

• Pages: 467

Does the US Have a Unilateralist Approach to International Law?

John Norton Moore:

This question is addressed to Adam Roberts who I intend to gently take to task. I do so, however, after saying that I'm an admirer of your paper in general. I say gently because actually I suspect that in terms of the purpose of your statement, you and I would have exactly the same underlying purpose to be served. We would both agree on the great importance of the United States and our European allies working together. I particularly enjoyed the entire intellectual sweep of what you were dealing with. I thought it was quite extraordinary.

My comment relates to the specifics of your statement that somehow we need to be concerned that the United States currently is set out on a course to ensure that laws apply to others, but they do not apply to the United States. I believe it's quite dangerous to be making these generalizations. I'm just back from the country of some of my good European colleagues and I know that one is hearing quite a few generalizations about American isolationism and nonparticipation in various treaties. I think that we have to actually proceed treaty-by-treaty in looking at these. There are very different reasons for US nonparticipation in a number of these treaties and the kinds of generalizations that we're hearing are not helping us move forward.

With respect to the Law of the Sea Convention, US leadership actually resulted in an effective renegotiation of Part XI. Our President then submitted the treaty to the Senate. There is no opposition of any significant kind in the United States to it. There is a peculiarity in the US Constitution over requirements in relation to how it goes through the US Senate, and I fully expect that the United States will be a party to that treaty at some point.

The landmines convention is eminently reasonable in seeking to bring under control the reckless scattering of landmines by aggressive leaders.

(Saddam Hussein, for example, threw landmines around Kuwait with no records kept.) That is an entirely understandable and reasonable thing to do.

On the other hand, the United States believes strongly that we need to differentiate between the uses of a variety of weapons systems. For example, our forces in South Korea maintain a well-marked mined area between North and South Korea. The laws of war and arms control ought to differentiate appropriately between those two examples. The United States did not reject the landmine convention because we want to have different laws for everyone, but because we don't think the right thing is being done.

Adam Roberts:

For the sake of brevity, I made my remarks in a way that was perhaps tactless. I agree with you that there are different reasons for nonparticipation in many of these treaty regimes and sometimes there is sound, sensible, prudential reasoning on the part of the United States in thinking seriously about the consequences of becoming party to a particular agreement. I wouldn't deny any of that for one second. And of course, the United States is not alone on the landmines treaty. Finland has similar concerns to those of the United States about the possible defensive value of landmines. So there's no suggestion that it is not a serious position.

My concern is not that the United States in fact views itself as above the law, but that there may be a perception of that because of the range and number of treaties that we're talking about and because the United States has such a peculiar-as you yourself have indicated-and slow system of ratification of treaties, which has been a nightmare for successive presidents of the United States. In respect of some of the treaties in this area, a good deal can be achieved by reservation. Not of course with the landmines treaty and not of course with the ICC statute, because, in my opinion unwisely, reservations have been excluded from those treaties. There really is a structural problem there. It is not clever of the majority of the like-minded States to exclude the possibility of reservations, because reservations, although they have had a bad name among some progressive international lawyers, are actually a very important means of bringing treaties into a relationship with the needs, interests, plans and intentions of States. So I agree with you in a large part of what you say. But I think, for example in relation to Protocol I or a number of the other treaties I listed, a good deal could be achieved by participating with reservations rather than staying formally outside the regime. I hasten to add I'm well aware that the United States, even while formally outside certain regimes, in fact has contributed very powerfully to them.

Is There a Right of Humanitarian Intervention?

Adam Roberts:

While it is impossible to establish a general right of humanitarian intervention, in individual cases one can argue that there are powerful factors supporting intervention. I'm not sure whether they are all containable within the category of necessity. I don't think they are. But there are very powerful factors, including legal factors, which may point to a justification for the use of force in a particular case. It is the concentration on the specificities of a particular and urgent situation that seems to me to be the right legal as well as political approach.

The German Bundestag, for example, when it debated the issue of Kosovo in October, 1998, essentially said that whereas it was not asserting any general right of humanitarian intervention, in the extraordinary circumstances of Kosovo, it would support an operation and would permit the use of German forces to take part in that operation. I personally think that is a more powerful and a clearer position than the very fragile one of asserting a general right of states to engage in humanitarian intervention.

One can of course buttress such an approach by making certain general propositions about particular cases, be it Bangladesh in 1971 or northern Iraq in 1991, when a use of force without the consent of the receiving sovereign State was tolerated by the international community even though it didn't have explicit UN Security Council blessing. There is also the relevant legal consideration that an intervention may be in support of UN Security Council objectives even if it is not with the specific consent of the Security Council.

There's also the relevant legal consideration that some of these actions have not been condemned. All of that falls short of a general right. But it's a considerable advance over the position that you have attributed to me, which is not the position I hold-that one simply has to throw up one's hands in despair and say...