Vol. 16 No. 8 (August, 2006) pp.628-632

 

LAWLESS WORLD: AMERICA AND THE MAKING AND BREAKING OF GLOBAL RULES FROM FDR’S ATLANTIC CHARTER TO GEORGE W. BUSH’S ILLEGAL WAR, by Philippe Sands.  New York: Viking Penguin, 2005. 320pp. Hardcover. $25.95. ISBN: 0670034525.  Paperback (2006). 352pp. $16.00/£8.99. ISBN: 9780143037828

 

Reviewed by Donald W. Jackson, Texas Christian University. E-mail: d.w.jackson [at] tcu.edu.

 

Within the past two years there has been a plethora of books about President George W. Bush’s national security strategy and the consequent retreat from our previous obligations under international law and institutions; several of them are listed in the references to this review.   Many of the steps in the US retreat from international legal obligations relate to the ongoing “War on Terrorism” that threatens to have no demonstrable conclusion.  Many writers have been highly critical of the Bush II administration, but others, for example, Joseph A. Klein (2005), not only defend the administration, but vigorously go further to attack the United Nations and its subsidiary and related institutions.  This is not to suggest that books such as Klein’s rest on sound research or objective analysis.  Instead, his contending viewpoint chiefly is ideological, for he and others of like persuasion seem to be engaged in “no holds barred” political combat.

 

LAWLESS WORLD, by Philippe Sands, clearly is one of the books critical of U.S. policy, and it contains most of the usual topics, such as Guantanamo, torture and interrogation; the questionable legality of our intervention in Iraq; terrorism and civil liberties.  Yet, a key virtue of the book is that it transcends those discussions which, while no doubt of continuing importance, rest on arguments that already are commonplace to many.   Sands’ book also includes consideration of the international law respecting global warming, international trade, and the international protection of investments.  These are not commonplace topics.  Broadly speaking, Sands’ book is essential reading for those whose work in public law usually does not include the post-World War II emergence of customary and treaty-based international law.  His chapters on dispute resolution processes, through the Appellate Review Body of the World Trade Organization and the World Bank’s International Centre for the Settlement of Investment Disputes, are especially likely to provide new and useful information for most readers.   The remaining chapters are not as likely to provide entirely new information, although they are equally well-presented.

 

Sands’ fifth chapter is devoted to the Dispute Resolution Understanding (DSU), one of the processes established by the creation of the World Trade Organization (WTO) in 1994.  In its first decade (1995-2005), the United States filed 81 petitions, and was the respondent to 90 petitions before the DSU.   These 171 cases represented 51 per cent of the 335 cases filed with the [*629] DSU in that decade.   The Appellate Review Body created by the DSU is a powerful institution with authority to declare violations of the WTO by member states and to authorize retaliatory measures against WTO violators.  Critics of the DSU focus on its low visibility and accountability (Hertz, 2003, especially pp.93 et seq.).   Hertz probably has a point of view as ideological as Klein [above], but from the opposite end of the political spectrum.  The DSU clearly deserves greater attention by scholars.  The gateway to DSU cases can be found online at http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm .

 

Sands’ sixth chapter reviews the International Centre for Settlement of Investment Disputes (ICSID) of the World Bank that was established under the Convention on the Settlement of Disputes between States and Nationals of Other States and came into force in 1966.  The ICSID website [www.worldbank.org/icsid/cases/] reports 106 concluded cases (three of them involving the United States as respondent) and 104 pending cases (none against the United States).   Under NAFTA rules investor claims may be filed at the Additional Facility of ICSID.   ICSID has seen even less attention by scholars than the DSU of the WTO.

 

Sands’ chapters on the DSU of the WTO and on ICSID of the World Bank raise the interesting and perplexing question of why the United States is among the strongest supporters of these important and authoritative international institutions while remaining among the strongest opponents of the International Criminal Court.   More on that at the end of this review.

 

Philippe Sands has the useful perspective of having been an actual participant in several of the cases and issues he reviews.  For example, he was an advocate in the Pinochet case in London, part of the negotiations that led to the adoption of the Rome Statute for the International Criminal Court, and a legal adviser to the delegation of St. Lucia at the 1990 Geneva World Climate Conference.

 

In his chapter on the Pinochet case, Sands concludes that the precedent may mean that heads of state may be held accountable, if the political will exists to enforce extant principles of international law, while noting that “foreign courts, located at a great distance from the place of the crime are not well placed to consider evidence and witnesses.”  Yet he also notes that this “supranational conception of justice” has “not been plucked out of thin air by judges and lawyers,” but flows from commitments such as the 1984 Convention against Torture, which, in principle, binds the United States and majority of the world’s nation states (p.44).

 

The new International Criminal Court (ICC) now binds more than 100 nation states, but not the United States, Russia or China.   The absence of the United States is ironic, for it was one of the strongest early advocates of such a court.  Indeed the commitment of the United States to the international prosecution of war criminals dates from President Wilson’s policy of indicting Kaiser [*630] Wilhelm II for waging war (p.49).  But the ICC that was once favored by the United States was an institution that could be controlled by the permanent members of the UN Security Council, for the US plan was that cases would be sent to the ICC solely by the Security Council.  When the proposal for the ICC evolved toward an independent prosecutor who could bring cases under his/her own authority (propio motu), the United States balked.  While President Clinton signed the Rome Statute for the ICC near his last days in office, the signature was withdrawn by the Bush II administration, which has consistently worked against the ICC, at least as its jurisdiction might apply to the US.   It is only fair to note that Clinton’s signature served chiefly to keep the United States within the negotiation over the details of the ICC.  Even so, the United States under Clinton was the principal advocate against the prospects of the Rome Statute for the ICC at the 1998 Rome Conference (and one of only seven countries eventually voting against it).  Despite several safeguards against politically-motivated prosecution of US military personnel the US has worked consistently against the ICC since 1998.

 

In his seventh chapter, Sands describes Guantanamo as a “Legal Black Hole,” and he wrote it well before the Supreme Court’s decision in HAMDAN v. RUMSFELD in June 2006, although he does review the June 2004 decision in RASUL et al v. BUSH.   Probably more has been written recently on Guantanamo than on any of the topics in this book, but the congressional response to the HAMDAN majority is yet to be determined.

 

Sands also concludes that the war in Iraq is both illegal and illegitimate, citing (among others) Anne-Marie Slaughter (2004).  His conclusion is sustained by the deputy legal counsel of the UK Foreign Office, who resigned in March 2003, following the UK Attorney General’s efforts to justify his country’s use of force when responding to a parliamentary question:  “I regret that I cannot agree that it is lawful to use force without a second Security Council resolution” (p.189).   When the details of the Foreign Office’s advice to the prime minister were published in April 2005, the advice included the warning that a “‘court of law might well conclude’ that the use of force against Iraq without a second UN resolution would be illegal” (p.197).

 

In his ninth chapter on “Terrorists and Torturers,” Sands reviews the work of John Yoo, whose views on presidential power are now set out in a recent book (2005).  Sands finds Yoo’s work to be “replete with basic errors of law” (p.213) and writes that Yoo’s assessment of international law is “plain wrong” (p.215).  Sands concludes with the following:

           

Over time a great deal more information will emerge.  But even at this stage it seems pretty clear that the legal minds which created Bush’s doctrine of preemption in the use of force and established the procedures at the Guantanamo detention camp led directly to an environment in which the monstrous images from Abu Ghraib could be created.  Disdain for global rules underpins the whole enterprise.  (p. 222) [*631]

 

At the end of his book, Sands reviews the justifications offered for the policies of the Bush II administration for redrawing the map of “global rules:”  1) that current international law is inadequate to deal with global terrorism, especially the problems involving dealing with non-state actors; 2) that the obligations of the President of the United States to protect US interests ought to prevail over international law, especially given the democratic deficit of most rules of international law; and 3) that military and economic power simply trump international law, and allow the United States to pursue its perceived interests despite actual or prospective conflicts with such laws.  Of course, even if the first point has some merit, no lawyer committed to the emergent international legal order can endorse the second or third points   Sands concludes that, “The rules of international law will turn out to be more robust than the policies of the Bush administration.  Tough guys are not enough in international relations.  In the twenty-first century you need rules, and proper lawyers too” (p.239).  We shall see whether he may be too optimistic.

 

Ultimately, the paradox between US participation in the binding provisions of the Dispute Settlement Understanding of the WTO or the World Bank’s ICSID process, on the one hand, and the Bush II administration’s efforts to constrain seriously any international limitations on its foreign policy and war making power, on the other, is perplexing.  The only explanation that emerges from surveying the topography of recent US policy is that the Bush II administration – and transnational US corporations – have  confidence that their combined economic power ultimately will dominate global trade and finance, while global opposition to the unilateral use of military power by the United States will ultimately diminish.  The prospect of an international legal order that might constrain that power – and possibly punish those who violate international criminal law as set out in the Rome Statute of the ICC – are so threatening that they must be opposed on every front. 

 

REFERENCES:

Daalder, Ivo H. and James M. Lindsey. 2003. AMERICA UNBOUND: THE BUSH REVOLUTION IN FOREIGN POLICY. Washington: Brookings Institution Press.

 

Hertz, Noreena. 2003. THE SILENT TAKEOVER: GLOBAL CAPITALISM AND THE DEATH OF DEMOCRACY. New York: Harper Business.

 

Irons, Peter.  2005.  WAR POWERS: HOW THE IMPERIAL PRESIDENCY HIJACKED THE CONSTITUTION. New York: Metropolitan Books.

 

Klein, Joseph A. 2005. GLOBAL DECEPTION: THE UN’s STEALTH ASSAULT ON AMERICA’S FREEDOM. Los Angeles: World Ahead Publishing.

 

Slaughter, Anne-Marie. 2004.  AMERICAN SOCIETY FOR INTERNATIONAL LAW NEWSLETTER. March-April, 1. [*632]

 

Yoo, John. 2005. THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. Chicago: University of Chicago Press.

 

CASE REFERENCES:

HAMDAN v. RUMSFELD, 548 U.S. ___, 126 S.Ct. 2749 (2006).

 

RASUL v. BUSH, 542 U.S. 466 (2004).

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© Copyright 2006 by the author, Donald W. Jackson.