International Law - Legalism



Legalism—the tendency to profess legal grounds for U.S. foreign policies—is a second core belief underpinning the American ideology. The inclination to embrace legalism springs from rejection of the balance-of-power approach as the means for preserving U.S. national security and from the liberal assumptions that people are rational human beings who loathe war and prefer the peaceful settlement of disputes. In modern times U.S. foreign policy clearly contributed to the creation of a global system of institutions and legal rules that allow states to settle their disputes without resource to use of force. This legalism perspective is well embodied in active U.S. participation in international rule-making and in the multitude of contemporary international institutions that the United States has joined and in great part has been responsible for establishing. Paramount among these is the United Nations, which was envisaged through the political initiative of the United States at Dumbarton Oaks in 1944 and San Francisco in 1945. The United States was also the main architect for designing and negotiating the International Bank for Reconstruction and Development (the World Bank) and the International Monetary Fund to reconstruct the post–World War II international economic order. From 1987 to 1994 the United States assumed the leading role in negotiating the World Trade Organization, which effectively rewrote the 1947 General Agreement on Tariffs and Trade in an effort to provide legal rules, inclusive of mandatory dispute settlement, for international commercial transactions. At the end of the twentieth century the United States assumed an intensely active internationalist role as it participated in more than one thousand intergovernmental organizations, most of which were conceived through U.S. political initiatives and were sustained with substantial U.S. financial support. In this regard it is critical to appreciate that nearly all of these international organizations were empowered to negotiate and create new legal rules, both for internal administration and as international regulations. As a global superpower with worldwide interests, the United States remained intimately involved in that norm-creating process through these global institutions.

For the United States, the rule-making facet of legalism rests in the critical legal principle of a government pledging its willingness to abide by international agreements to which it has voluntarily committed itself. This legal principle, known as pacta sunt servanda and drawn from the domestic practice of contract law, asserts that treaties made in good faith between governments are binding. While no meaningful police or judicial mechanisms are available to enforce international agreements, state practice clearly indicates that all governments, including the United States, overwhelmingly abide by their treaty obligations for two fundamental reasons: first, it is in their national interests to do so; second, abrogation of treaty commitments absent legitimate justification deprives a government of its political and legal credibility with the rest of the international community. The United States, like all states, honors its treaty obligations principally because those rules benefit American foreign policy interests. To spotlight this point, in 2001 the United States was party to more than five thousand international agreements, of which more than five hundred were prominent multilateral conventions. If treaty-based legal rules were nugatory for U.S. foreign policy, why pursue the painstaking political effort to negotiate, ratify, and consolidate such an impressive array of international instruments into legally binding obligations? The answer is plain: international legal agreements are not worthless. These rule-making documents well serve U.S. national interests, and upholding their obligations provides the United States with greater constructive opportunities and legal latitude in its relations with other states.

Legalism places heavy burdens on U.S. foreign policy, especially when considerations are given to the use of military force internationally. By rejecting the power-politics approach, policy-makers cannot assert national security self-interests as the only justification for engaging in armed conflict abroad. Instead, U.S. foreign policy actions may be dressed in legal principles to explain the bases for those decisions. Several examples demonstrate this pronounced tendency to justify the grounds for military action in legal terms, including resort to using the United Nations as an umbrella of legitimacy to prosecute the Korean War in 1950 and the Gulf War in 1991, citing a request by the Organization of Eastern Caribbean States as partial legal justification for the 1983 invasion of Grenada, and use of NATO to sanction the lawfulness of U.S. action in Bosnia in 1994–1995 and in Kosovo in 2000.

The American resort to legalism contains a proclivity toward moralism. Moralistic assertions may be used to explain how international legal rules and institutions are integrated into U.S. foreign policy outcomes. This American sense of morality in its international relations rests on two presumptions. First, the belief persists that the conduct of states can be judged by moral standards. Second, there is the assumption that American morality supplies the universal standard for making those judgments. By definition, American foreign policy actions are presumed morally right and legally justifiable. Thus, when flawed policy initiatives occur, they are not attributed to "American" values that guide the policy action. Rather, such fallacies are rationalized as resulting from leadership deficiencies, information failures, bureaucratic miscommunications, or organizational lapses.

Americans often justify political goals and foreign policy actions in moral terms and evaluate outcomes of events through a prism of moralistic values. This occurs when the government seeks to explain to the American public why foreign assistance for some state might be necessary. Numerous examples of such cases can be found during the Cold War, as the United States often asserted moral principles to justify aid to prodemocratic governments aimed at suppressing communist insurgencies in Greece in 1947, Lebanon in 1958, the Dominican Republic in 1965, El Salvador in 1981–1984, and Grenada in 1983. One might also add the decision to send military and food aid during the widespread famine in Somalia in late 1992. U.S. participation in massive refugee relief efforts similarly rests on pillars of moral values, well illustrated in the tragedies that gripped Bosnia (1992–1994), Burundi (1993), Rwanda (1994), and Kosovo (2000).

Idealism, or the vision that advocates that international peace is desirable and possible, also remains salient as a theme in American legalism. American idealists believe that violence and conflict represent human failures that can be overcome through education. Idealists find clear, accepted moral values in international agreements such as the United Nations Charter and the Universal Declaration of Human Rights. They are closely aware of moral claims by other governments and tend to advocate greater access for peoples in other countries to civil rights and liberties, health care, housing, and education. Idealists emphasize the importance of applying the principle of self-determination in U.S. foreign policy to peoples abroad and are more likely to advocate multilateral than unilateral action in world affairs. The integration of idealism with legalism's proclivity for establishing institutional structures served as the catalyst for the United States—through President Woodrow Wilson—to assume the leading role in establishing the League of Nations in 1919 and for supporting the United Nations in 1945. Idealism also fostered the rapid promotion and acceptability of human rights law in U.S. foreign policy programs and treaty commitments.

U.S. foreign policy at times assumes an approach of idealistic legalism to seek means of attaining international peace and cooperation. Such ambitions are seen in the nation's leadership in several disarmament conferences throughout the twentieth century, among them the Hague Peace Conferences of 1899 and 1907, Washington Naval Conference of 1922, Geneva Conference of 1922, London Conferences of 1930 and 1935, and Kellogg-Briand Pact of 1928, in which sixty-two contracting parties, including the United States, renounced the use of war as an instrument of national policy.

Idealism furnishes the bedrock of international humanitarian law, which governs the use of armed force and the treatment of individuals during armed conflict. International humanitarian law is designed to reduce and limit suffering of individuals in war. It thus extends the principles and protections of human rights to the rules governing armed conflict. In substantial part, such international humanitarian law is the product of U.S. foreign policy. In 1907, the Second Hague Peace Conference adopted Hague Convention IV, Respecting the Laws and Customs of War on Land, which remains the core legal statement on the law of land warfare. These regulations originated in the code of principles set out in 1863 by Francis Leiber, a U.S. physician during the American Civil War, to provide Union troops with rules of conduct on the battlefield. In reacting to the horrors of World War I, the United States in 1929 played a pivotal part in drafting two Geneva conventions that codified protections for prisoners of war and ameliorated conditions of sick and wounded soldiers in the field. The experiences of World War II reaffirmed the need to broaden the 1929 accords, and in 1949 in Geneva four major conventions were adopted that codified more comprehensibly legal rules for the protection of victims of war. Although drafted under the aegis of the International Committee of the Red Cross, the United States assumed the lead role in revising and developing these agreements, which dealt with the wounded and sick in the field and at sea, treatment of prisoners of war, and the protection of civilians. The four Geneva conventions of 1949 represent the most important codification of international humanitarian law protecting armed forces and civilian victims of armed conflict. As such they have been ratified by virtually every state in the world.

Idealism also underpins modern international criminal law, the main goal of which is to make accountable persons accused of committing atrocities and gross violations of human rights law. International criminal law descends substantially from American jurisprudential values and U.S. foreign policy initiatives. The trials in 1945 by the International Military Tribunal at Nuremberg, which prosecuted twenty-two German Nazi officials for committing acts of genocide, crimes against humanity, war crimes, and crimes against the peace during World War II, were innovations of and productions by American lawyers. So, too, were the Tokyo War Crimes Trials during 1947–1948 that prosecuted Japanese war leaders and industrialists. In reaction to "ethnic cleansing" in Bosnia during 1992–1993, the United States diplomatically steered the UN Security Council into the May 1993 establishment of the International Criminal Tribunal for the Former Yugoslavia (the Hague Tribunal). With U.S. diplomatic and financial support, this court emerged as a credible institution for investigating, prosecuting, and punishing persons accused of committing genocide, crimes against humanity, and war crimes against persons in the former Yugoslavia (mainly Bosnia). By 2001 the Hague Tribunal had publicly indicted one hundred persons for alleged atrocities, and nineteen had been convicted. Among those in custody and being tried was Slobodan Milosevic, former president of the Republic of Yugoslavia. In 1994 the United States again acted through the UN Security Council to create a special tribunal to try and prosecute persons accused of committing similar offenses in Rwanda. By 2001 the International Criminal Tribunal for Rwanda had indicted at least fifty-five persons, had fifty-one cases in progress, and found eight individuals guilty, including former Prime Minister Jean Kambanda, the first head of state ever convicted of such crimes. The United States also actively participated in the 1998 Rome negotiations that produced the Convention for the International Criminal Court. Ironically, while this instrument was the product of considerable American jurisprudential influence, the U.S. government continued to have strong reservations about the convention text. In particular, American objections centered on the fact that no provision existed for the United States to veto in the Security Council a particular case coming before the court and the possibility that U.S. troops abroad might be made subject to the court's jurisdiction on trumped-up charges.

Idealistic traits in U.S. foreign policy have generated support within the American public for humanitarian military intervention in situations where gross human rights atrocities or flagrant acts of genocide are perpetrated. Led by the Clinton administration, from 24 March to 10 June 1999, NATO conducted an air campaign against the Federal Republic of Yugoslavia. NATO aircraft flew more than 38,000 combat sorties against targets in Kosovo, Serbia, and Montenegro. Geostrategic and Realpolitik concerns clearly motivated the United States to act, especially the belief that ethnic conflict within Kosovo could destabilize the Balkans and inflame tensions between Greece and Turkey. Criticism was leveled at the Clinton administration for sketchy legal rationales proffered to justify NATO's military attacks, which caused severe collateral damage and civilian deaths. Nevertheless, strong evidence suggests that Serbian forces were undertaking a wide range of human rights and humanitarian law violations throughout Kosovo under the guise of "ethnic cleansing." An estimated six to ten thousand Kosovar Albanians were victims of mass murder, and more than 250,000 Kosovars were displaced and forced to flee to Albania, Macedonia, and Montenegro. The Clinton administration contended that a cardinal objective of NATO in its military action was to deter Belgrade from launching an all-out offensive against its own civilians. In this sense, the NATO bombing campaign took on the character of a humanitarian intervention, motivated by both moral and idealistic concerns. Strictly speaking, the lawfulness of U.S.–NATO action remains suspect because it was taken neither in self-defense to a military attack by Serbia nor legitimized by the approval of the UN Security Council. Still, it is reasonable to infer that the U.S.–NATO action may have saved thousands of Kosovar Albanian lives and might be considered an act of anticipatory humanitarian intervention.



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