Why promulgating international law is a key US interest

Political realists tend to be wary of international law, seeing it as an artificial and foreign encroachment on domestic sovereignty. Goldsmith and Posner argue that states’ commitment to international law is illusory; states will only comply with any particular provision of international law as long as their self-interest so warrants, and will abandon it as soon as this ceases to be the case.[1] Such views are especially prominent in the US, where constitutional obstacles and political conservatism have kept the US from playing as active a role in the international legal order as one might expect for a country of its stature. For instance, the US is one of only two countries (along with Somalia) that has not ratified the Convention on the Rights of the Child, and one of only three countries (along with Sudan and Israel) to have withdrawn its signature from the Rome Statute of the International Criminal Court; both are major treaties which the US itself played an active role in drafting. There has even been sporadic (if mostly marginal) talk over the years of withdrawing from the United Nations.

US conservative opposition to international law can best be summarized in the words of John Bolton, former ambassador to the UN:

It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest

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Is the Pedestal-ing of the “Rule of Law” Cause for Concern?

The “rule of law” has been put on a pedestal in international political and development discourse. No other “idea” (I am not quite sure what it is) shares its privileged place in our legal imagination. No other idea, Brian Tamanaha says, has achieved such a “global endorsement”.[1] Thomas Carothers laments that:

One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world’s troubles.[2]

More mental energies need be expended to put the “rule of law” in its place. Internal tensions and ignored controversies need to be better exposed. To begin, we should adopt the most formal, ‘thinnest’ understanding of the rule of law: that laws ought to be prescribed, forward looking, written and made public, relatively clear, non-conflicting, and that adjudicative forums ought to be accessible and impartial.

Understood that way, the ‘rule of law’ is an end-point. It is not a contained principle but a set of general prescriptions that are desirable because of what they do and afford to legal subjects. A legal system that adheres to formal rule of law prescriptions affords individuals the ability to make proper self-regarding decisions, because the consequences of potential courses of action are more ascertainable. Firms don’t make hallowed “life choices”, but that same certainty and stability may induce firms to invest or transact where…

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History and the International Rule of Law

The pro-democracy protests surging through the Middle East in recent weeks have left many in the West wondering why more isn’t being done to help protect protestors from violent repression, or push dictators from office. Put more simply, to the extent that Arab dictators are the evil galactic empire in Star Wars, why can’t the West play the role of the ewoks – helping the rebel alliance overthrow tyranny when they need it the most? Why can’t international law be like the eagles in Lord of the Rings, swooping in at the last minute to save protestor-Sam and Frodo after they cast Gaddafi’s ring of power into mount doom – using the opportunity when his shield generator was destroyed and blocking his killing curse because it turns out they were the master of the Elder Wand all along? [Note: spoilers appear in the preceding paragraph]

But what do international law and the Arab protests have to do with books and movies about an orphan raised by his uncle setting off on a quest to destroy an evil lord, guided by a wise old wizard (yes, the plots are all the same)? Well, the point is that many observers feel like “something should be done” to help save the heroes from violence at the last minute – and there is often a hazy feeling that international law can fill this role.…

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Egypt’s Dilemma: The Price to Pay for The Rule of Law

No other current event has garnered as much press and concern from the international community as the mass popular protests against the Mubarak regime in Egypt. The string of recent uprisings in the Middle East reminds us of the wildfire spread of revolutions across the nations of the Eastern European bloc in 1989. Egyptian protesters, emboldened by the successful overthrow of President Zine El Abidine Ben Ali in Tunisia, have organized massive demonstrations in several key cities in Egypt, demanding reform and President Hosni Mubarak’s immediate and unconditional surrender of power. Many factors have contributed to the recent uprising in Egypt, including the country’s many economic and social ills, yet one of the root causes for public grievance lies with the major shortcomings of Egypt’s legal system itself.

Following the assassination of Egyptian President Anwar Sadat in 1981, Egypt has been under permanent state Emergency Law that has limited political expression and dissent. [1] On May 11, 2011, Egypt’s parliament, dominated by President Mubarak’s National Democratic Party, voted to extend the Emergency Law active since 1981 for two more years. Although the official reason for the extension was to curtail terrorism and drug trafficking, the Emergency Law effectively gives the government the right to arrest “people without charge, detain prisoners indefinitely, limit freedom of expression and assembly, and maintain a special security court .” [2] Michael Scheinin – the UN’s…

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