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the Convention on the Rights of the Child, and one of only three countries (along with Sudan and Israel) to have withdrawn its signature from the Rome Statute of the International Criminal Court; both are major treaties which the US itself played an active role in drafting.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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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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Canada Actively Less-than-Active on Aboriginal Rights in the International Scene

September 13, 2007, was a day like any other, full of political brouhahas from the various corners of the world: then-President Bush addressed the nation on the way forward in Iraq; North Ireland introduced a cattle ear tags numbering system;[1] and Canada voted against the adoption of the Declaration on the Rights of Indigenous Peoples.

The Declaration put before the United Nations that day was the result of a process that started in 1985 with the UN Working Group on Indigenous People, given the broadly defined mandate to “give attention to the evolution of international standards concerning indigenous rights”. The general contents of the Declaration include “both individual and collective rights, cultural rights and identity, rights to education, health, employment, language, and others”. The final vote at United Nations General Assembly that day tallied 143 countries voting in favour of the Declaration, 11 abstentions, and 4 against (Canada, United States, New Zealand, and Australia). While Canada has made various strides in recognizing the rights of its aboriginal peoples, its vote on September 13 provides an example how an overly conservative and protectionist mindset can lead us a step backwards in recognizing the historical wrong-doings to a significant part of Canada’s population.

The Canadian Government provided two broad reasons for voting against the Declaration. The first reason was procedural. During the drafting stage of the Declaration, Canada…

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