International Law - Liberalism



A third critical ingredient in American ideology is a belief in the political and economic values associated with liberalism. Dominant as an American political philosophy, liberalism stipulates that the rights of the individual supersede rights of the government, and as such, the individual must be protected by law. Such notions, which are enshrined in the Declaration of Independence and the Constitution's Bill of Rights, proclaim the Lockean notions of protection of individual liberty, private property, and the rule of law.

Belief in principles of liberalism imbues Americans with antagonism toward authoritarian governments that suppress the civil and political rights of their citizens. This can be seen in Woodrow Wilson's principle of self-determination (1919); Jimmy Carter's human rights policy (1976–1980); the Clinton administration's efforts to restore democracy in Haiti and to use military force if necessary to overthrow the military junta (1994); and the anticommunist impulse, especially during the 1950s and 1960s, toward the Soviet Union and Eastern Europe, when communist governments were viewed as enslaving their populations under the control of a police state. Americans believe in individual rights and democratic principles, and the U.S. government often seeks to translate those beliefs into policies abroad.

During the 1990s these beliefs gave rise to the democratic peace theory, a notion of democratic idealism. Liberals argue that democratic states are less likely to wage war against each other, the fundamental proposition in the democratic peace theory. Democracies are more lawabiding and pacific because democratic norms and culture inhibit the leadership from taking actions that might precipitate war. Democratic leaders must listen to multiple voices that tend to restrain decision makers, and citizens of democracies share a certain kinship toward one other. All of these factors work together, the thinking goes, to diminish the possibilities of war. Promoting democracy fosters peace, political stability, and greater cooperation and collaboration in solving problems. Integrating this notion into its foreign policy, the Clinton administration successfully used economic and political incentives to promote democracy in Russia as well as states in Latin America, Eastern Europe, and Asia. By the beginning of the twenty-first century more states than ever before were nominally democracies.

Since revelations of the Holocaust in 1945, the protection of human rights has emerged as a major concern of international law. World attention to human rights has intensified because of television coverage of the horrors of gross violations, increasing efforts of nongovernmental organizations to promote concern for human rights abroad, and growing awareness that human rights violations are a major source of international instability. For the United States, the contemporary realm of human rights law flows directly from both the government's evolving experience in protecting the civil rights and liberties of its citizens and the goal of extending those protections to peoples everywhere. Many human rights norms are modeled after rights, liberties, and protections incorporated into U.S. constitutional law, American jurisprudence, and the national welfare system instituted during the mid-1930s under the administration of Franklin D. Roosevelt. Not surprisingly, the American people tend to support foreign policies that champion and enforce such human rights standards. To codify such standards, U.S. foreign policy has strived to create global human rights law through the adoption of prominent international legal agreements, to which most states have become lawfully obligated. As a consequence, the United States has assumed a leading role in promoting the negotiation and promulgation of human rights instruments. Yet a paradox persists here for U.S. foreign policy and international human rights law. On the one hand, the United States, more than any other government, is responsible for initiating, engineering, and bringing into force most of these agreements. On the other hand, the political concerns of some U.S. government officials that these treaties might be used to interfere into domestic affairs have prompted partisan isolationist impulses that continue to preclude a number of them from being ratified into U.S. law. Even so, the United States can take credit for substantially contributing to the codification of global human rights law and became a contracting party to several core instruments: the 1948 Genocide Convention (132 contracting parties); the 1966 Convention on the Elimination of All Forms of Racial Discrimination (157 contracting parties); the 1966 International Covenant on Civil and Political Rights (147 contracting parties); and the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (124 contracting parties). Although actively participating in negotiations leading to their promulgation, at the turn of the century the United States remained outside legal obligations associated with a number of other important human rights treaties, including the 1951 Convention Relating to the Status of Refugees (137 contracting parties); the 1966 Covenant on Economic, Social, and Cultural Rights (147 contracting parties); the 1973 Convention on the Prevention and Punishment of the Crime of Apartheid (101 contracting parties); the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (168 contracting parties); and the 1989 Convention on the Rights of the Child (191 contracting parties). Each of these treaties includes specific human rights protections that have generated ideological preferences in the U.S. Senate for isolationism, exceptionalism, and pragmatism—considerations that supersede that of codifying idealism and moralism into legal obligations binding American policy.

Even though democracy and respect for human rights have prominent stature as American political values, the application of such norms to U.S. foreign policy remains inconsistent. Throughout the Cold War years, a state's human rights record had little to do with whether it received foreign aid from the United States, which sought to aid anticommunist governments even if they were oppressive to their own people. Witness, for example, U.S. support for the Somoza regime in Nicaragua, the shah in Iran, the Marcos government in the Philippines, and the white minority government in South Africa even during the Carter administration, the strongest proponent of a U.S. foreign policy grounded in human rights considerations.

There likewise persists among Americans a strong aversion to military intervention into another state's affairs even to install a democratic regime or to protect principles of human rights. Americans appear quick to champion human rights rhetorically, but they abhor taking action to implement or guarantee them for peoples in other states. This penchant is a legacy of the Vietnam War and the manifest disinclination to send troops abroad. American policymakers usually rule out U.S. military intervention undertaken to protect the human rights of peoples elsewhere because of the high political costs that casualties would produce at home for the administration. This socalled Vietnam syndrome explains in large part the readiness of the Clinton administration to quit Somalia abruptly in 1993 and its unwillingness to send U.S. troops to suppress gross genocidal atrocities being perpetrated in Bosnia during 1991–1994, Rwanda in 1994, and Sierra Leone in 1999. In the same vein, the Clinton administration downplayed human rights abuses in the People's Republic of China in favor of consistently supporting renewal of its most-favored-nation trade status, as well as in supporting the admission of China into the World Trade Organization. Clearly the strategic implications for the United States of a secure economic relationship with China overrode moralistic concerns that advocate stronger protection for human rights for its population.

As instilled in the American political culture, liberalism also assumes an economic dimension. This aspect takes the form of laissez-faire capitalism, which, like liberal democracy, concentrates on the free will of the individual. Key values earmarking the U.S. brand of capitalism turn on the profit motive, private property, and the free market as a means of guaranteeing rewards for persons who earn their way. Sustained U.S. commitment to capitalism during the Cold War years worked to define socialism under the former Soviet Union and its communist satellites as dysfunctional and menacing to the world economy. Pursuit of capitalism by the United States also coalesced with American economic and political supremacy after World War II to facilitate its ability to assert the leading role in constructing the postwar world economic order. Critical was the U.S. capacity for proposing and legally assembling core international treaties and institutions, which have continued to regulate international economic relations. Put tersely, the American conviction in the liberal values of capitalism bolsters the U.S. emphasis on international trade and commerce and generates pronounced impacts for the role that international law must perform in U.S. foreign policy.

The United States emerged as the world's economic superpower during the last half of the twentieth century. It did so by realizing that international trade with other states and foreign multinational corporations would be essential to its continued economic well-being and prosperity and by negotiating bilateral treaties of friendship, navigation, and commerce with nearly every state in the international community. In addition, the national economies of states devastated by World War II, especially those of Europe, had to be rebuilt. To this end the United States assumed the lead role as early as 1944 in proposing and negotiating the Bretton Woods agreement, which established a new monetary order and created the International Monetary Fund and the International Bank for Reconstruction and Development (the World Bank) to advance and regulate the world economy. In late 1947 the United States successfully promoted negotiation of the General Agreement on Tariffs and Trade (GATT), which became effective on 1 January 1948. Initially signed by twenty-three countries accounting for four-fifths of world trade, this multilateral trade agreement prescribed fundamental principles to guide international commercial transactions among most states: free, nondiscriminatory trade; unconditional use of the most-favored-nation clause; reciprocity and mutual advantage in trade relations; reduction of tariffs; and elimination of protective barriers. These principles became the cornerstones of U.S. trade goals in the postwar economic order, and by 1993 the GATT had attracted 130 states as contracting parties.

From 1947 to 1993 the United States played the pivotal role in the GATT's multilateral trade conference negotiations (called "rounds"). The 1986–1994 Uruguay Round produced the most ambitious trade liberalization policies yet, and led to creation of the World Trade Organization (WTO), an institution proposed and strongly supported by the United States in its foreign economic policy. On 1 January 1995 the GATT was replaced by the WTO. Charged with monitoring and regulating international commerce, in 2001 the WTO had 142 members, accounting for 90 percent of world trade. The organization serves as a forum for administering trade agreements, conducting negotiations, and settling trade disputes; it also has the power to enforce provisions of the GATT and to assess trade penalties against countries that violate the accord. WTO rules, which cover commerce in goods, trade in services, intellectual property rights, dispute settlement, and trade policy reviews, consist of sixty agreements that run thirty thousand pages in length. While critics might grumble about diminished sovereignty, U.S. foreign policy clearly benefits from the WTO's legal guarantees of nondiscriminatory free trade and the mandatory legal process created for settlement of disputes between member states. From 1995 through 2001 the United States brought fifty-seven complaints to the WTO and had to answer forty-nine complaints by other countries. In cases actually decided by the WTO litigation process, the United States prevailed sixteen times and lost sixteen times. In twenty-seven cases, disputes were resolved to U.S. satisfaction without litigation. Critical to appreciate is that the U.S. government complied with WTO juridical processes and its arbitral panels' rulings, irrespective of the outcome. In these dispute situations, U.S. foreign policy allocates greater import to the rule of law than to pragmatic self-interest or belief in the virtues of America's economic might.

The GATT and the WTO strengthen and make more stable the international trading system that has fostered unprecedented global economic growth since the 1950s. More than any other government, the United States has been the architect of that system. While the lawfulness of its foreign trade policy might be tested at times through multilateral institutions, the United States is willing to accept that price to preserve economic order and support for the liberal principles of international commerce. To this end, U.S. foreign policy-makers cede preference to the long-term benefits of international legalism and liberalism over the costs that would be incurred by national exceptionalism and isolationism.

The regional dimension of U.S. economic policy exists in the North American Free Trade Agreement (NAFTA), which entered into force for the United States, Canada, and Mexico on 1 January 1994. The agreement, which exceeds two thousand pages, established schedules for reducing tariff and nontariff barriers in nearly all of twenty thousand product categories. NAFTA also expanded foreign investment opportunities and other financial transactions among the three states. While many uncertainties persist over the economic impacts of NAFTA, one obvious reality is the much freer flow of goods, services, and investments among the three member countries. Once again, U.S. foreign policy operates through agreed-upon international legal conduits to attain liberal economic goals of freer, nondiscriminatory trade relations with its neighbors. In a world of accelerating globalism and economic interdependence, the creation, implementation, and respect for international economic law becomes increasingly necessary for the United States.

U.S. foreign policy sometimes uses economic instruments as sanctions against other states. Throughout the Cold War, strategic embargoes were levied against trade with communist bloc countries in Eastern Europe as well as the Soviet Union, China, Vietnam, North Korea, and Cambodia. With the end of the Cold War the United States continued to apply its own legislative sanctions against certain states, namely, Cuba, Iran, Iraq, and Libya, and cooperated with the UN Security Council in imposing economic sanctions against a number of other governments. The U.S. economic embargo of Cuba reflected a policy steeped in liberal, ideologically messianic ambitions to install democracy in that country. At the same time, the sanctions stood as a symbol of U.S. unilateralism, driven by forces of self-virtuosity. A number of measures, including the 1996 Helms-Burton Act, applied sanctions against Cuba and foreign companies doing business with the Castro government. These sanctions represented the effort by the United States to link trade relations to the nature of the Cuban government in order to pressure the Cuban people to overthrow Castro in favor of democracy. But this policy was condemned by the UN General Assembly, Organization of American States, Canada, and several European governments. While the goal of turning Cuba into a democracy may have seemed admirable, the means used appeared counterproductive.



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