International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Winter 2018 Issue



International Law at a Crossroads

Dr. James G. Apple

By: James G. Apple
Editor-in-Chief, International Judicial Monitor

The future  of international law in the United States is at a crossroads.  On the one hand is a view, best expressed by the current U.S. Secretary of Defense, in favor of a strong international system. In an article in a recent New York Times Sunday Magazine, Secretary James Mattis told a group of assembled government officials and staff persons, including the President and the Secretary of State:

        The greatest gift the greatest generation [the generation from World War II and thereafter] left us was the rules-based postwar international order.

On the other side of the issue of a world embraced by international law is the newly appointed national security advisor, John Bolton, who at one time served as U.S. Ambassador of the United Nations [a recess appointment by President George W. Bush because his earlier nomination was not approved by the Senate]. Bolton is remembered for two statements and one action that took place while he worked in the U.S. State Department in the Bush II administration. The first statement is about the United Nations – a comment to the effect that the UN is so effectual that if the ten top stories of the U.N. building in New York were removed no one would notice the difference. The second statement was a pronouncement by Bolton while he had a high position in the State Department. It occurred on the day he signed a letter on behalf of the Department advising the International Criminal Court that the U.S. was withdrawing from the Rome Treaty and Rome Statute that created the Court (a treaty signed by the Clinton administration). Bolton said it was the happiest day of his time at the State Department.

The action that Bolton took while at the State Department was that after he signed the aforementioned letter he embarked on visits to many countries around the world to complete bilateral treaties with them stating that they would never refer cases to the ICC for criminal prosecution where U.S. military or other personnel were or might be involved. To make matters worse, Bolton as late as February of this year wrote an opinion column in the Wall Street Journal in which he advocated making a first strike with nuclear weapons against North Korea.

A major reason why there has been so much concern about Bolton’s views on international law, about his advocacy about bombing North Korea, and his appointment as national security advisor to the President, is the reaction of President Trump to Secretary Mattis’ comments about a rules-based international order. According to one attendee at the meeting described above, toward the end of the discussion, at which the Secretary of State and others were taking the side advocated by Secretary Mattis, President Trump advised the group:

“This is exactly what I don’t want.”

What is to be done to restore international law as an integral part of United States law? First the major impetus to change must come initially outside the United States government. There is just too much turmoil inside the government and too many with President Trump’s sentiments to expect course correction within the current administration. International law organizations in the U.S., such as the American Society of International Law, the International Law Section of the American Bar Association and the Council on Foreign Relations need to join together with other organizations with similar objectives to raise a collective loud voice in favor of international law and why it is important to the future of the United States and to the world to recognize and rely on it. A speakers bureau could be set up to coordinate efforts to send a collective message to all parts of the United States. Judges could add their voices in support of international law, as U.S. Supreme Court Justice Stephen Breyer has done with his most recent book, The Court and the World: American Law and the New Global Realities.

In 1990 the late Senator Daniel Patrick Moynihan of New York, and former U.S. Ambassador to the United Nations, published a small book (177 pages) titled On the Law of Nations.  It is basically a treatise on the history of international law, mostly in the United States and mostly in the 20th Century. However he does trace American support of and involvement in international law matters in the two centuries before that.

In the very first chapter of this book, in the very first paragraph, Senator Moynihan acknowledges that international law (the “law of nations”) was the first commentary of a four volume set of his influential Commentaries on American Law written by James Kent (1826-1830 ) an American jurist. Kent noted in his first lecture “Of the Foundation and History Of the Law of Nations” that “Congress claimed cognizance of all matters arising under the law of nations, and they professed obedience to that law…”  Senator Moynihan thus identified “the first great treatise of its kind by presenting the law of nations as the first principle of the American legal system.”

The remainder of  Senator Moynihan’s book deals in some detail with the status of international law in peace, war, the administrations of Presidents Woodrow Wilson and Theodore Roosevelt, the Cold War, Soviet Russia perspectives on it and the Iran-Contra Scandal of the Reagan Administration. The final part of the final chapter (A Normless Normalcy) is in essence a plea that the Congress and the Presidency return to “our own past”  that “the Congress as much as or more than the president … needs to raise its consciousness of international law as our law…”

Senator Moynihan’s book was published in 1990. Twenty-eight years later, the United States more than ever, needs to return to “our law.”

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© 2018 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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