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.”