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the Convention on the Rights of the Child, and one of only three countries (along with Sudan and Israel) to have withdrawn its signature from the Rome Statute of the International Criminal Court; both are major treaties which the US itself played an active role in drafting.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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The duty to recognize Palestine

Last week, culminating two years of intensive state-building efforts, Palestine Liberation Organization Chairman Mahmoud Abbas formally applied to the United Nations for the admission of the state of Palestine as its newest member. While the outcome and consequences of this controversial bid are yet to be seen, I wish here to consider its legal implications and particularly the third-party obligations to which it gives rise.

The international community has repeatedly affirmed its commitment to Palestinian self-determination. In general terms, its normative obligations to the Palestinian people can be divided into three categories. First, there is a moral duty, arising both from humanitarian interest and from the international community’s exceptionally pronounced role in the protracted conflict between Israelis and Palestinians, to advance peace and reconciliation between the two parties. Second, there is a general legal duty, stemming from the preambles of the UN Charter and the International Covenant on Civil and Political Rights to promote respect for the Palestinians’ human rights, which have been recognized as including the collective right to self-determination.[1] Third, there is a specific legal duty, rooted in the Geneva Conventions, to protect the rights of Palestinians living under Israeli occupation by ensuring Israeli compliance with international humanitarian law (IHL).

Effects of UN recognition on the parties’ compliance with international law

Israeli settlements in the West Bank, often built on stolen private land,[2] have…

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Self-determination and the “right” to resist occupation

The fundamental, collective human right to self-determination is arguably the cornerstone of the entire international legal order.

Self-determination is understood as the right of all national groups (in practice, groups recognized as such by themselves and by others) to be governed and represented (popularly or otherwise) by a sovereign state (or federation) functioning as the highest source of domestic legal authority. Affirmation of the right to self-determination is prominently featured in art. 1(1) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It is deemed to be an inherent right; that is, it does not derive from the international legal order but rather is presupposed by the latter: art. 1(2) of the United Nations Charter recognizes the principle of self-determination as a basis for the existence of the UN.

It is often assumed that the right to self-determination gives peoples living under foreign military occupation an absolute right to resist against the occupying power. It is interesting to note, therefore, that nowhere in international humanitarian law (IHL) – the primary body of law dealing with military occupation – can such a right be found or even inferred. Moreover, certain IHL provisions actually seem to preclude a general right to resist occupation. For example, IHL gives an occupying power not only the right, but the obligation to ensure…

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Winds of Change or Hot Air? Decolonization and the Salt Water Test

Nineteen Sixty is considered a watershed moment for the anti-colonization movement: in this single year, seventeen African States were created or ‘decolonized’, obtaining independence from European colonial regimes. In a public address at the time, British Prime Minister Harold MacMillan noted that ‘winds of change’ were sweeping the African continent. The norms of international law followed suit: Resolutions 1514 (XV) and 1541 (XV) of the United Nations General Assembly were adopted in December 1960. Together, they form a fundamental part of the customary law underpinning the right to self-determination. At this anniversary of fifty years, it is useful to critically reflect upon this episode in the history of international law.

The Declaration on the Granting of Independence to Colonial Countries and Peoples, passed on December 14, 1960, recognized that “the peoples of the world ardently desire the end of colonialism in all its manifestations” and consequently affirmed that, “All peoples have the right to self-determination.” The United Nations resolved to assist Trust and Non-Self-Governing Territories (UN Charter, art. 73, i.e. subjugated colonial States) in their movements for independence by supporting the immediate transfer of all powers to the peoples of those territories. Indeed, the United Nations categorically condemned colonization. But this still begged the question – what exactly was colonialism?

One day after Resolution 1514, Resolution 1541 (XV) was passed – a more substantive document specifically…

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