In Review:
New Publications on International and Comparative Law
Lawless World: America and the Breaking of Global Rules from FDR’s Atlantic Charter to George W. Bush’s Illegal War, by Philippe Sands, Viking Penguin 2005
When I was a graduate student at a university in Europe in the late 1980s, and was studying international law intensively for a year, one of the conclusions I came to about it was that it seemed to be largely an academic exercise, and seemingly confined to the libraries of the universities that taught international law and the offices of professors who taught it and wrote about it. Certainly that was true in the United States. International law, I concluded, was something that had not entered the public consciousness; it had not yet invaded the “marketplace.” All of that changed significantly in the decade of the 1990s, with the two phenomena of globalization of commerce and the exponential growth of the Internet and the resulting internationalization of information.
The United States government, of course, had readily embraced what is known as public international law (the law governing relations between nation-states) during and after World War II, with the signing of the Atlantic Charter and the creation of the United Nations. Respect for public international law was part of all U.S. national administrations from Roosevelt on, all administrations, that is, until the advent of the current one. And other types of international law were beginning to develop and expand in the decades of the 1970s and 1980s, such as international human rights law, international environmental law, and the law of the sea.
At the beginning of the new century and new millennium, just as a great part of the world was on the cusp of recognition of the necessity and inevitability of an international legal order and an international law to sustain it, recognition that international law did in fact belong in the “marketplace,” along came a new administration in Washington that has basically trashed the whole idea of an international legal system and international law generally.
That observation is the central thesis of Philippe Sands’ most recent book, Lawless World. The main title of the book is perhaps misleading. A more appropriate title might be Lawless Nation, since most of the author’s dismay about the current role of international law and recent disruptions of the international legal order are directed toward the United States and the policies of the current Bush administration. The author is not the first writer to be discouraged by the trends and policies of the current administration with respect to international law and policy. Clyde Prestowitz, a former senior official of the Reagan administration, wrote in 2003, Rogue Nation, a book which detailed many of the problems the Bush administration was creating for the United States by its policies toward other countries, the international community and the international legal order generally, and by the President’s personal conduct.
Philippe Sands is well positioned as an observer of the international scene and the role of international law in the world. He is a barrister in London (Queen’s Counsel) whose practice is limited to international legal issues. He is also a professor of international law at University College, London. As a barrister he has been involved in some of the leading international law cases in his own country as well as other countries and before the International Court of Justice in the Hague. He also monitored the famous Pinochet case, which took place in 1998 in the English courts.
In the preface to his book, Sands states that “what is striking is how little is known by the public at large of the transformation of international relations that has taken place over the past fifty years.” As an example he notes that “notions of sovereignty have changed with growing interdependence [among nations]. The extent of interdependence caused by the avalanche of international laws means that states are constrained by international obligations over an increasingly wide range of actions.”
In building his case against the Bush administration, Sands starts appropriately with a short account of the modern history of international law. In the second chapter he deals in detail with the Pinochet case. In that case the former dictator of Chile was arrested in the U.K. as the result of a warrant issued by a Spanish magistrate and a subsequent request by Spanish authorities for his extradition to answer charges in the Spanish court that he was guilty of the crimes of “genocide and terrorism,” including murder of Spanish citizens and torture during his reign in Chile in the 1970s and 1980s (the highest court in the U.K. denied Pinochet’s claim of exemption from extradition, a transforming decision in international law).
The Pinochet case discussion serves as a lead-in to the next chapter in the book on the new International Criminal Court, a court that the Clinton administration basically embraced but which was later heartily condemned by George W. Bush and Donald Rumsfeld. Sands discusses the objections of the United States to the new court and condemns actions which it has taken in not only not joining the international agreement creating it (the “Rome Statute”) but also in conducting a campaign to vilify and discredit it. He outlines the American arguments against the Court and then systematically destroys those arguments.
In succeeding chapters, Sands effectively discusses and criticizes American approaches to international law in the areas of the environment and global warming, the U.S. holding of Muslim detainees at Guantanamo Bay, the Iraq War and the Geneva Convention (Kicking Ass in Iraq” is the chapter’s title), and prisoner rights and torture at the Abu Ghraib prison. He includes two chapters on international trade and international investment, two areas where the U.S. approach is inconsistent with its general disdain for international law. He notes that, with respect to those two areas, there is no stronger proponent of international standards and an international order than the United States. He concludes that the U.S. supports international law only when it suits its interests, and not as a part of a policy of approval for a comprehensive international legal order.
In the concluding two chapters he effectively ties all of the chapter discussions together and demonstrates the broad implications of American policy towards international law. He analyzes the meaning of some of the seemingly conciliatory actions of Bush administration officials at the beginning of Bush’s second term in office, actions which he dismisses as “window dressing.” And he believes that the United States’ policies towards international law and an international legal order will ultimately not succeed.
At the end of a December, 2003 cabinet meeting, President Bush famously commented, in response to an inquiry about whether an action of his administration might violate international law: “International law? I better call my lawyer... I don’t know what you are talking about by international law.” That remark sadly demonstrates a point made at the beginning of this essay, that international law has not yet percolated into the “marketplace”, into the public consciousness of the citizens of the United States, including its most prominent one. That is where it needs to be if it is to become effective and a force for peace and good in the world.
Philippe Sands’ excellent and very readable book will not only enlighten the reader about the current unfortunate policies of the United States towards international law generally, it will provide a basic understanding of why international law is so urgently needed in the world, and needed in the “marketplace” rather than largely in the halls of academe where it rested for so long.
by James G. Apple, President, International Judicial Academy; Co-Editor, International Judicial Monitor
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