International Law - Pragmatism



The fourth core belief set in the American national ideology is pragmatism, that is, resort to an applied practical approach to foreign policy decisions. It stems from the realization that Americans built a country out of the wilderness, created their own government institutions, and achieved more economic and ideological success than any other people in modern history. American pragmatism thus resembles an engineering approach to foreign policy problem solving. U.S. involvement is often viewed as working to make things politically stable and morally right. The assumption is that right answers do exist for world problems, and the U.S. response contains those right answers. Complications arise in international relations when other governments do not perceive these problems in the same way as the United States. As a consequence, the preferred American approach in seeking solutions for law-related foreign policy issues is to deconstruct the problem, much as an engineer would use a blueprint to break tasks down into sub-problems. A mechanical solution is then devised for each legal component of a problem, while all the time keeping in mind the political implications. It bears mentioning that in this process one runs the risk of losing sight of the problem's larger legal context in order to protect perceived political interests inherent in each sub-problem. When this occurs, the result can be the substitution of means for ends and the tendency to improvise solutions that are unlikely to lead to resolution of the greater problem.

Resort to pragmatism means that legal situations are dealt with on an individual basis, as opposed to long-term planning. Pragmatist policymakers tend to evaluate policies based on whether they solve the problem, rather than on what is legally permissible, ethically required, or even morally acceptable. In this regard, reliance on pragmatism invites U.S. decision makers to assert a strong realist approach in foreign policy. The theory of realism involves application of power politics to international relations. Realists are generally skeptical about human nature and are willing to accept that governments will inevitably act aggressively in their foreign policy. Hence, governments must pursue and protect their national interests, including use of force if deemed necessary. Realists advocate the prudent management of economic and military power. In sum, for U.S. foreign policy realists, the main objectives that the government should advance in its international relations are its military security and economic prosperity, that is, its national interests. Legal considerations are pushed aside, save insofar as they contribute to securing military security and economic objectives. Hence, when such realist tendencies occur, the likelihood arises that foreign policy decisions might compromise or circumvent international legal rules for the sake of obtaining perceived direct political gains. To attain greater short-term benefits for U.S. national interests, a strictly pragmatic approach might conclude that international legal commitments should be short-circuited or overridden. Unilateralist political ambitions are given higher value than multilateral legal obligations.

Resort to pragmatic foreign policies by the United States frequently occurs in situations involving the use of force abroad, which often produce fundamental conflicts with legalism, especially in terms of moral constraints and idealistic principles. When that occurs, historical experience suggests that pragmatism usually prevails. This can be seen in the American attitude toward policies of intervention abroad and government rationales devised to politically support those actions. To put this into legal perspective, international law holds that military intervention by one state into the territory of another state is flatly prohibited, except under four special circumstances: (1) if there is a treaty agreement permitting such intervention between the two states; (2) if the intervention comes at the genuine invitation of the legitimate government of a state; (3) if the intervention is undertaken as part of a collective security action involving an international organization; and, more controversially, (4) if the intervention is done for humanitarian purposes. Throughout most of its history, the United States chose not to rely on these legal justifications to substantiate the legitimacy of its intervention actions abroad.

Historically, the legal logic used by the United States to support foreign intervention is couched in the articulation of presidential doctrines. These policy proclamations, which significantly shape U.S. legal attitudes toward the permissibility of international intervention, are greatly influenced by pragmatic motivations but increasingly assume ideological traits irrespective of relevant legal considerations. The Monroe Doctrine and its Roosevelt Corollary were historically the most widely applied of these doctrines. The Cold War markedly affected U.S. policy attitudes and resurrected American willingness to engage in military intervention abroad. Consequently, during the last half of the twentieth century the U.S. perception of aggression (that is, legally impermissible intervention) became framed in terms of evaluating and containing radical communist regimes throughout the Third World generally and the Western Hemisphere in particular. U.S. policymakers believed radical influence upon the domestic politics or governmental structure of a state produced regional instability and therefore plowed fertile ground for that country to become a victim of communist aggression. Concerns about the threat of communist expansion worldwide resurrected and reactivated the fundamental policy motive contained in the Monroe Doctrine—intervention for self-defense—and fostered its application through a number of post–World War II policy doctrines.

The first doctrine of the post–World War II era, the Truman Doctrine, was asserted in 1947 and committed the United States to a global policy aimed at stopping the spread of communism. The Truman Doctrine was designed specifically to send $400 million to help Greece and Turkey put down communist insurgencies that threatened those governments' stability. The lawfulness of this aid was not at issue, nor did the United States intervene militarily. The scope of U.S. anticommunist assistance was expanded in January 1957 when President Dwight D. Eisenhower formally asked Congress to authorize the use of armed force to assist any country that requested help against communist aggression. In March 1957, Congress ratified the Eisenhower Doctrine, which became the legal rationale for U.S. intervention into the Middle East, where radical nationalism had sharpened in the aftermath of the Suez crisis of 1956. The Eisenhower Doctrine assumed Realpolitik policy objectives and affirmed U.S. determination to become the leading power in the region. The U.S. government invoked the Eisenhower Doctrine only twice, and in neither case was it in response to external aggression. In April 1957, Washington dispatched emergency aid to Jordan, which was threatened by an abortive coup. In January 1958, U.S. marines landed in Lebanon to support the Chamoun government, which was in the midst of a civil war. Importantly, in both cases, U.S. assistance had been formally invited by the legitimate government in power, making the action lawful notwithstanding the obvious Realpolitik ramifications.

The administration of President Lyndon B. Johnson produced a new intervention doctrine for U.S. foreign policy. The Johnson Doctrine derived from the episode in April 1965 when the United States sent 21,000 troops into the Dominican Republic to restore civil order on the pretext of preventing a "second Cuba" from emerging in the hemisphere. The principal legal rationale for the action was self-defense (more accurately, exaggerated national security concerns) against the perceived threat of communism being established in the Dominican Republic. Shortly thereafter, this doctrine was applied globally to shore up justification for U.S. military assistance to the government of South Vietnam in the face of the communist aggression of North Vietnam and China.

The Vietnam War imbroglio produced a new doctrine for U.S. foreign policy toward regions threatened by communist aggression. By the late 1960s, the enormous costs of the conflict in lives and dollars, coupled with the eruption of strong domestic antiwar sentiment, demonstrated to the Nixon administration the need to shift the American approach to military assistance. The new policy, articulated in 1969, aimed to transfer immediate self-defense responsibilities to the South Vietnamese indigenous forces. While the United States would continue to bear responsibility for deterring nuclear and conventional war, the burden for deterring localized conflicts would shift to the countries involved. This so-called Nixon Doctrine was later broadened to encompass the entire globe. As with other American doctrines, considerations of international law were largely omitted from the policy calculus. The change in military assistance policy was not done in response to international criticisms of U.S. military intervention into Vietnam or the widely reported American violations of the laws of war. Rather it was done to counter domestic public discontent and to produce more opportunity for an early withdrawal of U.S. forces from Southeast Asia. These were actions motivated by pragmatism and Realpolitik, not for reasons of legalism or moral commitment.

The administration of President Jimmy Carter revived the expansion of U.S. military commitment to the Middle East. On 29 December 1979 the Soviet Union invaded and seized control of Afghanistan. The Carter administration reacted by withdrawing the SALT II Treaty from Senate consideration, increasing aid to Pakistan, cutting off grain sales to the Soviet Union, and calling for a boycott of the 1980 summer Olympic Games in Moscow. More provocative was the president's proclamation in January 1980 that warned the Soviets to halt their expansion into the Middle East. In effect, Carter declared that the Soviet invasion of Afghanistan threatened the Persian Gulf and Indian Ocean oil supply pipelines and asserted that the United States would act alone if necessary to protect Middle East oil from Soviet takeover. Thus, the Carter Doctrine identified the continued flow of oil from the Persian Gulf as a paramount strategic interest of the United States, to be defended with U.S. military force if necessary. In so doing, it broke with the Nixon Doctrine, which called for partnership in preference to the unilateral approach in the Truman, Eisenhower, and Johnson doctrines. The United States in this case responded to an unlawful act of foreign intervention by asserting the strategic necessity—as opposed to the predicate of lawfulness—of military assistance to a victim state. Again, preeminence was given to motivations of American exceptionalism and pragmatism over normative elements found in policies of legalism, liberalism, and moralism.

Finally, during the 1980s, President Ronald Reagan articulated his own policy dictum to reinforce the central theme of halting the spread of communism. The Reagan administration expanded military and economic assistance to friendly Third World governments battling leftist insurgencies and actively supported guerrilla movements and other opposition forces in countries with leftist governments. This policy, which became known as the Reagan Doctrine, was applied with particular zeal in Latin America. Central to these efforts was supplying military and economic aid to the government of El Salvador in its civil war against the Farabundo Marti National Liberation Front and in organizing, funding, and training the contras, a guerrilla force of 15,000 who sought to overthrow the Marxist Sandinista government in neighboring Nicaragua. Support for such "freedom fighters" was also extended to Angola, Afghanistan, and Cambodia to assist those irregular forces in their struggles against totalitarian leftist regimes. In these ways the Reagan Doctrine can be viewed as a natural corollary of the Nixon Doctrine, albeit one whose permissibility under international law is seriously in question. Such assistance to rebel insurgents is generally viewed as unlawful intervention into the internal affairs of another state and is prohibited under international legal rules, irrespective of the ideological character of the ruling government.

Other U.S. policies highlight the salience of pragmatism over legalism. For example, even though the Reagan administration was adamant about not dealing with terrorists, in 1985 it agreed to sell weapons to Iran in the hope that this might persuade Islamic fundamentalists holding hostages in Lebanon to release them. Interestingly, the monies from the arms sales went to support of the contras in their war against the Nicaraguan Sandinistas. Similarly, the invasion of Grenada in 1983 (on the pretext of rescuing one thousand American medical students on the island) and the bombing of Libya in 1986 (on the pretext of acting in self-defense against Libya for its bombing of a West Berlin discotheque) further eroded the respect for law by the Reagan administration in its foreign policy. Although praised by Congress and the American pubic, these actions were widely condemned by the international community for their shaky legal underpinnings. Propelled by ideological concerns, U.S. foreign policy was characterized by American pragmatism, self-virtuosity, and unilateralism exercised at the expense of the legal, moral, and liberal considerations that embody the fundamental legal principle of noninterference in the internal affairs of other states. Throughout the Cold War years, presidential doctrines articulated policies in which international legal considerations were conspicuously omitted, as unilateralist ideology assumed paramount importance.

Since the end of the Cold War, pragmatism in U.S. foreign policy has remained ascendant over legal and moral considerations when issues of using armed force are involved. Even so moral, liberal, and legal considerations have been integrated more and more to explain and justify U.S. rationales for using armed force abroad. There has evolved the need to advocate normative arguments for American actions to foster greater international acceptance of the lawfulness of that policy.

For President George H. W. Bush, the invasion of Panama and the Gulf War were principal U.S. actions involving use of force. In December 1989, U.S. armed forces intervened militarily into Panama in Operation Just Cause. The Bush administration provided three pragmatic reasons, grounded in nationalist considerations, to justify the action: to keep the Panama Canal open; on grounds of self-defense, to protect the lives of U.S. citizens living there; and to apprehend the self-proclaimed "maximum leader," General Manuel Noriega, so that he could be put on trial for alleged violations of U.S. narcotics laws. One liberal objective was given in support of the action: to restore democracy in Panama. None of these directly relate to international law, and, in fact, a joint communiqué of reservations and understandings appended to the Panama Canal Treaties of 1977 flatly renounces any right of the United States to intrude into the internal affairs of Panama. The legal rule of nonintervention into Panama was overridden for perceived pragmatic short-term objectives of U.S. policy interests, to protect the canal and to seize Noriega.

The Gulf War of 1991 was the first major military conflict involving U.S. intervention after the Cold War. Importantly, it came not as a unilateral U.S. response to Iraq's aggressive conquest of Kuwait in August 1990. Rather, American military action was taken as part of a collective responsibility, formally approved in seventeen resolutions by the UN Security Council in order to force Saddam Hussein's forces to quit their unlawful occupation of the Persian Gulf sheikdom. Sponsored by the United States, Security Council Resolution 678, adopted on 29 November 1990, asserted that unless Iraq unconditionally withdrew from Kuwait and released all foreigners by 15 January 1991, UN member states would be allowed to "use all necessary means to restore the international peace and security in the area." On 16 January, UN efforts to deal with Iraq culminated in a U.S.-led coalition of twenty-eight countries instigating an intense air attack against Iraq. On 23 February a massive ground assault was launched to eject Iraqi troops forcibly from Kuwait. Four days later the war ended.

While American motivations for prosecuting the war against Iraq were more strategic than moral—that is, to maintain secure access to oil resources in the Persian Gulf, to prevent Iraq from controlling nearly one-half of the world's known oil reserves, and to preclude Iraq from building up a military machine that included weapons of mass destruction—a strong case can be made for the lawfulness of its action. The United States might have acted unilaterally to oust Saddam Hussein, but it did not. Resort to the Security Council (and obtaining its concurrence) was essential for substantiating the legitimacy of the U.S. use of force. In this instance U.S. military intervention was implemented legitimately through multilateralism (through an international coalition) and attained the aims of moralism (to reverse aggression) as well as liberalism (to install greater respect for democracy and human rights) and legalism (to proceed through universally accepted UN procedures for dealing with aggressor states).

At the time, many analysts even agreed that the Gulf War served well the prospects for a "new world order." In the succeeding years, such an order did not come to pass, as violence between states became supplanted by the rise of violence between ethnic and tribal groups within states. To appreciate the tragedy of this point, one only has to think of the civil wars in Somalia (1992–1993), Burundi (1993), Rwanda (1994), Bosnia (1992–1995), Sierra Leone (1999–2000), Serbia-Kosovo (1999), and the Congo (2000–2001) that killed or displaced more than five million people over a decade.

Pragmatism affects U.S. foreign policy in several ways. It alleviates the requirement that American decision makers only make policy that is grounded in strict legal principles or ideological tenets. Policy is not wedded to philosophical or moral stricture. It can be decided with greater flexibility, based mainly on political perceptions as opposed to rigid normative considerations. Further, U.S. foreign policy tends to be reactive rather than proactive. In its international dealings the United States reacts to certain events as they occur rather than anticipating that they will occur. In this sense pragmatism contributes to the American tendency to prefer short-term national goals over long-term international solutions—an approach that invites inconsistency in foreign policy actions. Pragmatism can also blind policy-makers to the more idealistic sides of liberalism, especially with regard to respect for human rights. One only has to recall that the United States has supported a number of governments that had egregious human rights records in the treatment of their own citizens, to wit, Anastasio Somoza in Nicaragua, Rafael Trujillo in the Dominican Republic, Fulgencio Batista in Cuba, the shah in Iran, Duarte in El Salvador, Ferdinand Marcos in the Philippines, and the minority white government in South Africa.

One can similarly conclude that when vital interests are perceived to be at stake, U.S. officials sometimes bend legal rules to justify their policies rather than conform their actions strictly to the letter of the law. In 1998 the Clinton administration fired cruise missiles against Iraq in retaliation for Saddam Hussein's refusal to permit UN inspections of suspected chemical and biological weapons facilities. More missiles were fired in 1998 against Sudan and Afghanistan in response to those governments' alleged complicity in the bombings of the U.S. embassies in Kenya and Tanzania. American claims that their actions were motivated by lawful considerations of self-defense are suspect, and the evidence of these governments' complicity is not well founded. More likely, these attacks were acts of military reprisal against those states, acts that are impermissible under the rules of modern international law.

On certain national security issues, international law provides the preferred practical recourse in U.S. foreign policy. Two critical areas of intense U.S. involvement stand out: the threat of transnational terrorism and the preclusive strategy of arms control. Regarding international terrorism, such violence has become a regular event in modern times, with Americans and their property frequent targets. Between 1981 and 2000 the number of terrorist attacks worldwide remained relatively consistent, with 9,170 incidents, including 422 attacks in 2000. While domestic terrorism—such as the bombs that seriously damaged the World Trade Center in 1993 and destroyed the Alfred P. Murrah federal building in Oklahoma City in 1995—is a matter for American civil authorities, concern over transnational terrorism has escalated in U.S. foreign policy priorities. These worries not only pertain to conventional problems such as bombing and kidnapping but also to the possibility that terrorists might use chemical, biological, or nuclear weapons against a city in the United States.

Accordingly, the United States has assumed the leading role in establishing specific prohibitions against such violent acts through the negotiation of special international legal agreements. Chiefly toward this end, American negotiators, beginning in 1970, have proposed international legal instruments that stipulate not only the unlawful nature of terrorist acts but also the fundamental requirement for governments to prosecute persons who perpetrate such acts, or at least extradite accused offenders to those states who will. Outstanding among U.S.-inspired agreements to outlaw and prosecute criminal acts of transnational terrorism are the following instruments: the 1963 Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft (171 contracting states); the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft (173 contracting states); the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (174 contracting states); the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents (107 contracting states); the 1979 International Convention Against the Taking of Hostages (75 contracting states); the 1980 Convention on the Physical Protection of Nuclear Materials (69 contracting states); the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (53 contracting states) and its protocol to suppress unlawful acts against the safety of fixed platforms on the continental shelf (49 contracting states); and the 1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection (67 contracting states). Importantly, though, the United States by 2001 had yet to become a contracting party to the 1998 International Convention for the Suppression of Terrorist Bombings (24 contracting states) or the 1999 Convention for the Suppression of the Financing of Terrorism (3 contracting states). Through these legal means, U.S. foreign policy sought to integrate the moral aspiration of protecting innocent people with a pragmatic approach that provides diplomatically available international channels for political cooperation and legal prosecution of persons accused of such offenses.

To regulate the use of force and weapons systems in interstate relations, U.S. foreign policy has assumed a highly pragmatic approach. The end goal of policy might appear idealistic (to promote international peace and national security through disarmament), but the means taken are clearly more realistic in their intent and application (to negotiate instruments for arms control guided by President Reagan's maxim of "trust but verify"). The United States has thus employed diplomacy to create legal rules so as to promote greater order and stability in interstate relations, thereby contributing to its own national security. Nowhere is this strategy more apparent than in efforts to control the use and spread of weapons of mass destruction globally and, more particularly, in its bilateral relationship with the former Soviet Union, now Russia. To assist in curbing proliferation of various weapons, the United States was instrumental in drafting, negotiating, and promoting numerous international agreements.

Through negotiation of international legal instruments, the U.S. government has put limitations on the types and power of weapons permissible in national arsenals. What makes the U.S.-led negotiation of these agreements even more impressive is that many states have become legally obligated to most of them, simply because they realize these limitations best serve their national interests. The United States is party and legally obligated to all of the following: The 1963 Limited Test Ban Treaty, which bans tests in the atmosphere, outer space, and under water (124 contracting parties); the 1968 Nonproliferation Treaty, which prohibits selling, giving, or receiving nuclear weapons (189 contracting states); the 1971 Seabed Arms Control Treaty, which bans placement of nuclear weapons in or under the deep seabed (99 contracting states); the 1972 Biological and Toxin Weapons Convention, which bans the production and possession of biological weapons (143 contracting states); the 1972 Strategic Arms Limitation Talks Treaty (SALT I), which limits the number and types of U.S. and Soviet nuclear weapons; the 1972 Anti-Ballistic Missile Treaty, the pact between the United States and Soviet Union that sets limits on antiballistic missile testing and deployment; the 1976 Environmental Modification Convention, which bans modification of the environment as a form of warfare (66 contracting states); the 1979 SALT II Treaty, which limits the number and types of U.S. and Soviet strategic weapons; the 1987 Intermediate-Range Nuclear Forces (INF) Agreement, which eliminates all U.S. and Soviet missiles with ranges between 500 and 5,500 kilometers; the 1987 Missile Technology Control Regime, which limits transfer of missiles or missile technology (25 contracting states); the 1991 Strategic Arms Limitation Talks agreement (START I), which reduces strategic nuclear forces between the United States and the Soviet Union, Belarus, Kazakhstan, Russia, and the Ukraine; the 1992 Chemical Weapons Convention, which bans possession of chemical weapons after the year 2005 (143 contracting states); and the 1993 START II agreement that reduces U.S. and Russian strategic nuclear forces.

Notable exceptions cloud U.S. practice and highlight the force of pragmatic realism over multilateral legalism. The U.S. Senate in 1999 rejected the Comprehensive Nuclear Test Ban Treaty (77 contracting states), largely for reasons of partisan politics and to ensure that the ability to test nuclear weapons would be available to the United States so as to maintain nuclear parity with other states. Nor has the United States contracted to the Convention on the Prohibition of Anti-Personnel Mines (117 contracting states), because of the deterrent value of landmines for protecting U.S. troops in South Korea. Unilateral exceptionalism, ostensibly on pragmatic security grounds, reemerged in the presidency of George W. Bush. The Bush administration indicated that it would withdraw from the 1972 Anti-Ballistic Missile Treaty with Russia so that the United States may go forward with testing and deployment of a space-based missile system to protect America from an attack by a "rogue state" armed with nuclear missiles. Moreover, the Bush administration announced in 2001 that the United States opposed a UN treaty to limit the international sale of small arms, because the accord would constrain the legitimate weapons trade and infringe on the right of American citizens to bear arms. The fact that the United States is the leading exporter of such weapons, selling $1.2 billion of the estimated $6 billion worldwide total, seems a more pragmatic explanation of that policy decision.

Such international legal agreements demonstrate the American recourse to legalism, but they are steeped in motives of pragmatism and realism. A treaty in and of itself cannot prevent the use of any weapon by any party, no more than domestic laws can prevent a person from using a handgun to rob a bank or commit murder. Still, multilateral agreements articulate rules and norms that states are expected to follow in their conduct. If all contracting parties adhered to all these legal rules all of the time, the possibility of these weapons being used would be considerably reduced, and the prospects for obtaining international peace and security would be greatly enhanced. Once again, the motivations for U.S. foreign policy emerge as a national blend of realistic pragmatism and idealistic legalism, the success of which ultimately rests in the political will of the involved governments.

The blend of pragmatism with recourse to multilateral legalism is also well illustrated in issues concerning conservation of natural resources and protection of the biosphere. As the greatest industrial superpower in history, the United States consumes 35 percent of the world's energy resources and emits nearly 25 percent of the world's carbon dioxide. American economic consumption at home generates serious environmental repercussions abroad. Since 1960 the U.S. government, along with other states and international organizations, has grown more attuned to how burgeoning industrial output affects its own air, water, and land area, as well as how international legal agreements might best be fashioned to minimize the corrosive impacts of industrialization on the earth's environment beyond the limits of national jurisdiction. To these ends more than five hundred multilateral agreements have been concluded on conservation and protection of the biosphere, many done with vigorous U.S. participation in UN-sponsored conferences. The obligatory presumption underpinning these instruments is that governments and individuals must use the biosphere responsibly, on the theory that it belongs to no one individually and to everyone collectively. These views are crystallized in multilateral agreements negotiated as legal regimes to govern national activities in global common areas, that is, in those spaces such as the oceans, Antarctica, and the atmosphere. Importantly, the United States is formally obligated to most of these legal regimes.

The legal status of the world's oceans has been a legal concern for four hundred years, though more recent attention has focused on how best to use them without causing pollution, resource depletion, or harm to living creatures. The first global effort to codify the oceans' legal status came in 1958 with the promulgation of the four 1958 Geneva Conventions on the Law of the Sea. The United States assumed the pivotal role in drafting these agreements. When advances in technology overwhelmed the relevance of these instruments, the United Nations in 1973 convened a complex, protracted series of negotiations to recodify ocean law. Again, the United States assumed the central role in these negotiations, which in 1982 produced the UN Convention on the Law of the Sea. This framework convention seeks to regulate issues of offshore territorial jurisdiction, ownership of the continental shelf region, exploration and exploitation of living and nonliving resources in the ocean and on the deep seabed, as well as protection of the marine environment. The convention defines coastal zones, establishes an International Seabed Authority to regulate mining on the ocean floor beyond the limits of national jurisdiction, and provides for sharing revenues derived from such operations.

For modern ocean law, the 1982 convention rules the waves for most nations. Yet the United States has remained resistant to becoming a party to this agreement, principally because of the deep seabed issue. The United States possesses the most advanced seabed mining technology and would contribute the most dues to the authority's operations, which would likely most benefit developing countries. On these grounds some U.S. senators argued vigorously during the 1980s against the treaty, although since the treaty entered into force in 1994, those objections have largely waned. In this respect the U.S. role in the modern law of the sea inculcates an ideological struggle in the American mind between the benefits of international legalism versus unilateral exceptionalism, as well as the virtues of economic liberalism versus international socialism. The irony is that, over the course of nearly a decade, the United States contributed more legal wherewithal and technical insights to the negotiation of this convention than any other government. In the end, the fundamental issue came down to that of sovereign self-interest versus international common interest, and in this case, sovereign self-interest appears to have won out.

Nevertheless, U.S. foreign policy was essential for forging many other treaties that contributed to more orderly use of ocean space. Among these were the 1946 International Convention for the Regulation of Whaling; the 1969 International Convention on Civil Liability for Oil Pollution Damage; the 1973 International Convention for the Prevention of Pollution from Ships, with its protocol of 1978 (MARPOL 73/78) and six annexes; the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, with its 1996 protocol; the 1966 Load Line Convention; the 1974 Safety of Life at Sea Convention; and the 1972 International Convention on the International Regulations for Preventing Collisions at Sea. In addition, the United States figured mightily in the negotiation of two other major ocean conservation documents, the 1993 UN Food and Agriculture Organization Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas; and the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.

In the case of Antarctica, the United States remains key as the contributor to forming new rules for administering the legal regime there. The Treaty on Antarctica was largely an American inspiration and culminated on 1 December 1959 from a special negotiating conference of twelve states in Washington, D.C. The United States also emerged as the critical influence in producing three other agreements that comprise the modern Antarctic Treaty System. These are the 1972 Convention on the Conservation of Antarctic Seals, which protects Antarctic seals from being harvested; the 1980 Convention on the Conservation of Antarctic Marine Living Resources, designed to conserve krill, fish, birds, and other marine life in the Southern Ocean; and the 1991 Protocol to the Antarctic Treaty on the Protection of the Antarctic Environment, which establishes the norms, rules, and procedures that Antarctic Treaty contracting parties must apply to their activities in the region. Each instrument was negotiated and entered into force with full U.S. concurrence, because protection of the environment and conservation of Antarctic resources are perceived as best serving long-term U.S. national interests. In this regard, elements of pragmatism stand out in U.S. policy. But what also stands out is the important proclivity toward multilateral legalism that is idealistically intended to secure environmental protection and resource conservation in the region. For U.S. interests to be best protected, other governments concerned with Antarctic matters must be likewise legally bound. Only multilateral agreements, as opposed to exceptionalist, unilateral initiatives, can suitably attain that purpose.

A quartet of instruments comprises the regime for regulating the protection of the atmosphere by eliminating or stabilizing anthropogenic emissions of substances that threaten its environment. The first of these, the 1985 Vienna Convention for the Protection of the Ozone Layer, was instigated and promoted mainly by the United States. This treaty aims to protect human health and the environment against the adverse effects of modification of the ozone layer. Its 1987 Montreal Protocol, which entered into force with strong support from the U.S. government, was negotiated to institute precautionary measures to control global emissions of substances that deplete the ozone layer. The UN Framework Convention on Climate Change, a product of the 1992 Earth Summit at Rio de Janeiro, seeks to regulate the level of greenhouse gases contaminating the atmosphere in order to avoid creating climate changes that impede economic development worldwide. Its companion instrument, the 1997 Kyoto Protocol, was negotiated as a means to implement the framework global warming convention. Even though U.S. industry is responsible for producing 25 percent of the world's greenhouse gas emissions, the administration of George W. Bush indicated in 2001 that it would not participate further in negotiations on the Kyoto Protocol, mainly because the economic price paid by U.S. industry was considered unfairly too high, especially given that India and China were not participating and developing countries were exempt from the protocol's restrictive terms.

By 2001 the United States had not accepted the 1992 Convention on Biological Diversity, which aims to conserve and promote sustainable use of biodiversity resources. Although 180 other states had ratified this accord, the United States rejected it on grounds that it encourages "equitable sharing of benefits" arising out of the use of genetic resources and "appropriate" transfer of technology, while taking into account rights over such resources. The legal logic here supposes that, as the largest developer of biotechnology industries, the United States stands to lose most from these obligations. These costs are seen as not worth the price of legal agreement. Nor had the United States contracted to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, ostensibly because critical terms in the agreement were left vague and open to interpretation. Rejection of the Basel Convention more likely came because U.S. industry is the world's largest exporter and importer of precious-metal wastes and scrap and would be severely affected by the accord's legal restrictions.

An attitude of exceptionalism for the world's largest consumer and greatest polluter cannot produce benefits for the planet's environment. To correct this, the United States has contracted to three important agreements: the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which seeks to protect certain species from overexploitation by a system of import-export permits; the 1979 Geneva Convention on Long-Range Transboundary Air Pollution, which aims to limit the discharge of air pollutants, especially sulfur dioxide, that cause distant damage in other states; and the 1992 UN Convention to Combat Desertification, which strives to halt spreading desert lands.



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