Vol. 20 No. 11 (November, 2010) pp.684-689
THE SWORD AND THE SCALES: THE UNITED STATES AND INTERNATIONAL COURTS AND TRIBUNALS. Cesare P.R. Romano (ed.). Cambridge: Cambridge University Press. 492pp. Hardback. £66.00/$108.00. ISBN: 9780521407465. Paper. £20.99/ $36.99. ISBN: 9780521728713. eBook format. $30.00. ISBN: 9780511630071.
Reviewed by Edward Gordon, retired lawyer and law professor, Honorary Vice President, American Branch, International Law Association. egordon23 [at] excite.com.
The thirteen papers assembled here deal with patterns in the attitudes of the United States government and the American public, respectively, toward international adjudicative institutions, especially as these attitudes have been affected by the increase in the number and importance of these institutions over the past two decades. The papers are the product of a three-year research project undertaken by the Center on International Courts and Tribunals at New York University and the Project on International Courts and Tribunals, the latter described here as “a shared research agenda by a network of institutions and individuals” located in several countries (Preface p.xxiii, n.17). The editor is Cesare P.R. Romano (Loyola Los Angeles), a European and American educated legal scholar who over the past decade has become one of the most prolific writers on the subject.
Many, though by no means all, of the contributors are of the view that the principal characteristic of these attitudes has been their ambivalence. A number of factors are offered in explanation, many along the lines suggested by Mary Ellen O’Connell (Notre Dame), who notes that while, at the outset of America’s founding, Christian pacifism and Yankee pragmatism combined to produce a bias against war as a means of settling international disputes, their influence on American policy-making declined after the First World War in consequence of the rise of both American military and economic power and the imminence of fascist and Communist enemies. By the end of the twentieth century, she says, American enthusiasm for peaceful resolution of international disputes had virtually disappeared. Elsewhere in the present volume the pattern she describes is justified, rationalized or condemned, varyingly, as instrumentalism, pragmatism, cynicism, or defiance of a genuine rule of law in the international community. Outside the U.S., it is sometimes perceived and portrayed as “exceptionalism,” this being an unflattering reference to what is seen to be an assumption by some Americans that by virtue of its commitment to individualism, its federalism and its place in history the U.S. is unique and, in its uniqueness, unsuited for limitations imposed by international law on other states.
Melissa A. Waters (Washington University) looks at opinions among members of the U.S. Supreme Court for evidence of a sense of “the proper dialogic relationship” between U.S. and international courts with respect to treaty interpretation – that is, of how euphemistic phrases like “respectful [*685] consideration” play out in practice. Her focus is upon vertical and horizontal models of the relationship, leaving to skeptics like me the unkind thought that maybe, in fact, the relationship might be more accurately perceived in terms of competitive vanities and willful nescience.
Steven Kull and Clay Ramsay (University of Maryland), analyzing admittedly sparse and episodic surveys on public attitudes toward international tribunals, are among the more sanguine of the contributors, saying that, overall, the surveys show a clear pattern of positive support. Nonetheless, they concede the persistence of an assumption that the U.S. is, after all, exceptional.
The theme of exceptionalism stands out as well in the piece by Sean D. Murphy (George Washington University), which refers to the influence three sets of contradictory principles (“antimonies”) have had in the way America thinks about securing its interests – that is, between “realism” and “institutionalism"; between the idea of the equality of all states and the U.S. vision of itself as a unique entity that should not be subject to the same constraints of international law and institutions to which other states should be exposed; and between U.S. democratic traditions that promote the autonomy of the U.S. legal system and local governance over local issues and, on the other hand, the U.S. willingness to embed its national law in international law. His is a detailed examination of how these antimonies have affected positions taken by the U.S. before, and in response to rulings by, the International Court of Justice (ICJ).
John P. Cerone (New England School of Law) focuses upon cases heard by international criminal courts in the past decade or so, especially those in which the U.S. government has perceived a national interest. In essence, he sees no coherent policy at all in U.S. policy towards these courts, blaming the incoherence partly on the multifaceted nature of the institutions themselves and partly on the diversity of views prevalent within important policy-making circles.
Jeffrey L. Dunoff (Temple) surveys the history of the dispute settlement procedures of the post-World War II General Agreement on Tariffs and Trade (GATT) and its successor, the World Trade Organization (WTO). His theme echoes Mary Ellen O’Connell’s, in that it finds that early U.S. support for the GATT’s dispute settling mechanism was overcome in the 1960s by the growing numbers and corresponding influence of developing states, by the rise of European Community and Japan as powerful economic forces, combining to reduce the relative power of the U.S. within the GATT, and by a correspondingly anti-legalist sentiment towards trade policy and dispute settlement. “The shifting U.S. position concerning dispute settlement during the decade,” he writes, “suggests that the United States views dispute resolution mechanisms in instrumental terms. More specifically, when highly legalized processes are perceived to threaten U.S. economic or geostrategic interests, the United States will neither advocate nor participate in such procedures” (p.337). U.S. compliance with WTO rulings has achieved a “decidedly mixed” record, Dunoff concludes, and a close examination of the U.S. commitment to the international rule of law or the use of [*686] tribunals in the trade domain “reflects pragmatism in the Executive Branch designed to deflect protective pressure and silence Congressional critics” (p.354-355)
The influence of domestic politics reappears in the review by David A. Gantz (University of Arizona) of U.S. actions in and regarding the dispute settlement process of the North American Free Trade Association (NAFTA). Gantz sees these actions characterized by ambivalence, frustration and occasional defiance. In her article, Susan L. Karamanian (George Washington University) finds little empirical basis to support U.S. complaints that NAFTA’s dispute settlement process intrudes upon and even usurps U.S. jurisdiction and law-making processes.
Elizabeth A.H. Abi-Mershed (Inter-American Commission on Human Rights) finds ambivalence in the U.S.’s use of the Inter-American Commission on Human Rights, on the one hand, but continuing non-membership in the Inter-American Court of Human Rights, on the other. Similarly, Tara J. Melish (SUNY Buffalo) concludes that “the U.S. has appeared to flinch, even recoil, when it comes to direct domestic application of [international] human rights treaty norms, especially as those norms are interpreted by international supervisory bodies” (p.211), but she adds on a more hopeful note that this has not altogether precluded the U.S. from accommodating human rights norms in practice.
The tone of John R. Crook’s paper is altogether different from the others and supplies a balance otherwise missing here. Crook is now an international arbitrator, but he spent more than thirty years in the Office of the Legal Adviser of the State Department, and points with evident pride to the constructive role the Department played in bringing about, for instance, the Iran-U.S. Claims Tribunal, the UN Compensation Commission, the Holocaust Victims compensation mechanism and other regimes of a similar nature. “These institutions did not rise spontaneously,” he reminds readers. “They all began with judgments by senior U.S. policy makers that law-based claims institutions had a role to play in addressing current foreign policy challenges. [They] were backed up by serious commitments of skilled and dedicated people and … enjoyed political support inside the United States (or at least an absence of effective opposition)” (p.321)
Such conditions have not existed in recent years, Crook adds, in a brief but blunt coda to his paper. The government’s history of constructive engagement was interrupted by the Bush administration’s hostility to international law itself and to the institutions that have been created to assure that its norms are applied to all states. Preoccupied with their self-proclaimed war on global terrorism, he asserts, “some powerful administration officials saw little role for international law and institutions as elements of U.S. policy” (p.321).
The Bush administration’s position is defended aggressively by John B. Bellinger, III, in the form of the text of a speech he gave in 2006 to the American Society of International Law (ASIL) in his capacity, at the time, as the Legal Adviser to the State Department. Unmentioned in this book, but helpful to [*687] know as background, is that Mr. Bellinger’s appointment as Legal Adviser represented an abrupt departure from tradition, a departure that was widely interpreted as an effort to bring State’s career lawyers to heel. In contrast to his (the only applicable pronoun to date) counterpart in most of the world’s other foreign offices, the State Department’s top legal officer has traditionally been a political appointee, rather than a senior career officer, and has almost always been drawn from among lawyers in private practice, academia or, in one instance, the federal judiciary. In each case the understood objective has been to bring fresh professional perspective from outside the ranks of the government’s departmentalized – and frequently rivalrous – lawyers. Before Mr. Bellinger, rarely had anyone been named to the position who up to the time of his appointment had spent most of his legal career within the government, let alone, as with Mr. Bellinger’s, almost exclusively within the intelligence community.
According to his online resume, which may not tell all, Mr. Bellinger started his professional career as Special Assistant to the Director of Central Intelligence – hardly a typical first job for a recent law school graduate – and thereafter held a succession of positions as counsel to, among others, the Senate Select Committee on Intelligence, a national security group within the Justice Department’s Criminal Division and, for the first four years of the Bush administration, the White House’s National Security Council. Experience of this sort provides useful insight and first-hand familiarity with some key players in policy-making and implementation, especially in Washington. But it is nearly devoid of anything approaching the leavening influence the appointment of a Legal Adviser to the State Department has traditionally been designed to assure.
It also helps to know that the lawyers from L, as the Legal Adviser’s office is informally known, have tended over the years to perceive of themselves as faithful bearers of the banner of international law, besieged on all sides by myopic philistines. This attitude has not always played well in Washington, where the philistines, bearing an assortment of banners of their own, have been known on occasion to express difficulty in distinguishing it from outright arrogance. But as Mr. Crook’s article connotes, L is a proud shop. As an outside but veteran observer, I feel constrained to add that, exaggeration aside, that pride is justified in the frequency with which L has found itself all but abandoned within and outside the State Department in defending this country’s best instincts and long-term best interests.
Mr. Bellinger’s defense, entitled simply – but pointedly – “International Courts and Tribunals and the Rule of Law,” is cut from a different cloth. While the U.S. supports the rule of law in international affairs, he begins, this goal is not invariably synonymous with support for all international adjudicative institutions or for any one of them at all times, regardless of circumstances. “Our general approach to international courts and tribunals is pragmatic,” Bellinger says. “In our view, such courts and tribunals should not be seen as an end in themselves but rather as potential tools to advance shared international interests [*688] in developing and promoting the rule of law, ensuring justice and accountability, and solving legal disputes. Consistent with this approach, we evaluate the contribution that proposed international courts and tribunals may make on a case-by-case basis, just as we consider the advantages and disadvantages of addressing international matters through international judicial mechanisms rather than diplomatic or other means” (p.2).
He then proceeds to identify and criticize specific instances in which, in his view at least, international tribunals have allowed themselves to be drawn into “highly charged, fluid political disputes,” where their review of specific legal issues has interfered with diplomatic efforts to resolve the larger political dispute in which they are ensnared; or they have waded into “complex area[s] beyond [their] expertise, such as the operation of a country’s domestic criminal justice system”; or where in the name of adjudication the judges have sought instead to impose their own views on blatantly political questions. “States cannot have confidence in the objectivity of a tribunal,” he says, “if they fear its decisions will be motivated by the judges’ agendas rather than by an objective and judicious analysis of the relevant facts and law” (p.5)
His most severe criticism is aimed at the ad hoc international criminal tribunals established to deal with war crimes in Yugoslavia and Rwanda, and the International Criminal Court (ICC), respectively. For their part, he says, the costs of the two ad hoc tribunals far exceeded and their efficacy fell far short of U.S. expectations. As to the ICC, not only does it lack an adequate system of checks and balances, its constituent instrument (known as the Rome Statute) “gives the ICC prosecutor the ability to initiate cases without appropriate oversight by the UN Security Council, [thereby] raising a risk of politicized prosecutions and infringing on the [the Council’s Charter responsibility with respect to the] maintenance of international peace and security” (p.8-9). The U.S. maintains a veto right over the actions of the Council, of course, and the implications of referring to oversight by the UN Security Council are not likely to be lost on those who feel that, at the end of the day, the U.S. is, or at least the Bush administration was, simply not prepared to cede control of international criminal prosecutions.
The virtue of this approach ultimately depends upon whether its assumed pragmatism has proved or is likely to prove beneficial. As Professor Romano says in his own essay, strategically placed as the book’s concluding chapter, the approach itself is neither new nor unique to the U.S. Mr. Bellinger “could have said the same about any other nation in the world,” Romano says (p.419), but its pragmatism turns out to be mere short-sightedness. Among other infirmities, he argues, it is oblivious to crucial differences among the functions different adjudicative mechanisms perform: as custodians of the law, as its developers, and as a continuum of the rule of law within countries. He might have mentioned, too, that ostensibly adjudicative tribunals sometimes find themselves positioned to act as wise or prophetic teachers and example-setters, as evidenced by the emblematic role that the Nuremberg trials have played in the development of a transcendent human rights regime. [*689]
Ironically, perhaps, because it surely was not intended, Mr. Bellinger’s remarks to the ASIL call to mind the contempt with which Britain initially rejected President Lincoln’s offer to submit the Alabama claims to arbitration. The claims raised questions that could not be submitted to international arbitration “with any regard to the dignity and character of the British Crown and the British nation,” the foreign minister said, adding in an imperious phrase that subsequently found its way into generations of international law treatises, “Her Majesty’s Government are the sole guardians of their own honour” (Jessup p.3).
As it happens, the Bush administration was not alone in feeling that, particularly over the past few decades, the instrumentalities of international law have become politicized. But the persuasiveness of this criticism is undermined by the historical fact that politicization was not perceived to be a problem, at least by American officials, when the U.S. was calling the shots in international politics. What has changed is that the world community, its state and non-state components alike, no longer feels obliged by considerations of power politics to cotton to American exceptionalism, unilateralism, instrumentalism, pragmatism, or hypocrisy. Nor is there longer much enthusiasm outside the U.S. for the idea that international legal institutions should confine themselves to matters of inconsequence that are not perceived by powerful states to impinge upon their claimed sovereign prerogatives. It was this very notion, in fact, that Hersch Lauterpacht, in the early 1930s, said amounted to little more than a principle of de maximis non curat praetor. “Obnoxious as a general legal proposition,” Lauterpacht wrote, in reality it constitutes “defiance of the law, expressed either in aggressive force or in the perpetuation of a wrong by passive force” (pp.168-72).
Jessup, Philip C. 1971. THE PRICE OF INTERNATIONAL JUSTICE. New York: Columbia University Press.
Lauterpacht, Hersch. 1933. THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY. Oxford: The Clarendon Press.
© Copyright 2010 by the author, Edward Gordon.