A Country I Do Not Recognize

by Robert H. Bork

  At the same time, the new diplomacy seeks to expand a second basis of international law: the doctrine of universal jurisdiction. Universal jurisdiction is an old legal doctrine that is being stretched almost beyond recognition. The original justification for allowing courts of any nation to have jurisdiction over certain crimes was that, otherwise, pirates would escape without prosecution, the high seas not being a part of any national jurisdiction. Today, proponents of expansive international law have changed the doctrine from one of locus—the high seas—to one based on the gravity of the offense. The new doctrine of universal jurisdiction is that certain crimes—war crimes, crimes against humanity, genocide—are so serious that any court may take them under its jurisdiction.

  The most visible case of modern universal jurisdiction involved the prosecution of General Augusto Pinochet of Chile for violations of human rights law. The courts of both Great Britain and Spain took it upon themselves to pursue this matter, even though his crimes were committed in Chile where, as “senator for life,” he enjoyed virtual immunity from prosecution. If the United States is sometimes considered the world’s police force, Belgium apparently aspires to be its courtroom. Belgium’s law of universal jurisdiction has been the most aggressive, and cases have been filed there against a wide range of international leaders, from Ariel Sharon to George H. W. Bush, and the leaders of the Rwandan genocide. Recently, Belgium agreed to limit its law to cases involving Belgian nationals, after Donald Rumsfeld suggested that NATO should consider moving its headquarters out of Brussels, rather than risk sending Americans there to face potential arrest based upon Belgian court cases. Nevertheless, this is likely only a temporary setback for universal jurisdiction.

  The third prong of the international legal expansion is taking place at the level of international institutions and the campaign for global governance. A 1995 report from the Commission on Global Governance framed much of the agenda.17 “Our Global Neighborhood” offers comprehensive proposals to “organize life on the planet.” From U.N. reform to expansion of the rule of law and the creation of new international organizations and agencies, the suggestions all propose more extensive and assertive global governance. The creation of the ICC was a huge step toward global governance. Even the evolution of the European Union on a regional level creates more of a global governance climate.

  Much of the global governance movement is distinctively anti-American in tone and seeks to balance U.S. power. For example, there is considerable interest in the U.N. and elsewhere in sustainable development. The agenda, however, is not just stimulating more activity in underdeveloped countries but encouraging less use of resources by developed countries. A movement against the death penalty is gaining momentum and a U.N. Human Rights Commission rapporteur included the United States on his inspection tour, which was supposed to focus on “extrajudicial, summary or arbitrary executions.” The recent WTO decision finding the U.S. steel tariffs in violation of that organization’s policies highlights yet another layer of global governance.

  Taken together, there is clearly a significant movement toward the expansion of international law. The new diplomacy has an agenda to expand international controls over human rights, human security, the environment, sustainable development, and the rights of women and children, to name but a few. With new players at the table pursuing strategies through new treaties, through the expansion of universal jurisdiction, and through global governance by international institutions, the game is clearly under way. The effect of all this on the United States must be assessed by policymakers.

  International Law Challenges American Values and Interests

  The United States should recognize that it has legitimate interests and values it must protect on the international scene. The rapid development of international law—through new treaties, increased use of universal jurisdiction, and expansion of international organizations and global governance—necessarily impinges on the sovereignty and interests of individual nations. Since many of these efforts are motivated by a desire to balance U.S. power, and some are blatantly anti-American in intent, the United States especially must count the cost of expanded international law and weigh that against the public and international relations cost of not participating.

  At a very practical level, some expansions of international law expose U.S. citizens to legal and economic risks. The broad jurisdiction of the ICC, for example, poses a real risk of prosecution of U.S. political leaders and military personnel. Although President Clinton signed the treaty at the last moment, having previously voted against it in Rome, even the Clinton administration acknowledged that the treaty did not contain sufficient protections for American military personnel. With more soldiers abroad than any other nation, the United States faces the greatest risk. Without doubt, the combination of an independent prosecutor, as opposed to charges emanating from the Security Council as was originally intended, and the assertion of the right to charge citizens of nonsignatory states creates the opportunity to prosecute American personnel. So, too, has the expansion of universal jurisdiction exposed U.S. political officials to legal processes abroad based on questions of the legitimate exercise of American foreign policy. These are matters to be handled diplomatically, not in a court of law.

  Similarly, expansions of treaties in the environmental arena will carry a major economic cost. The proposed limits on global warming in the Kyoto protocols are a first step that carries a huge economic price tag. They will doubtless be followed by even more rigorous restrictions on the use of resources and on manufacturing as the sustainable development agenda moves forward. All nations’ leaders owe it to their people to count the cost of such international movements. This is certainly not something the environmental NGOs, with their narrow focus, will do.

  A second practical problem with this expansion of international law is that it also intrudes upon domestic policy and values. Jeremy Rabkin provides a wonderful example when he tells of the Nixon administration’s and the U.S. Senate’s approving the World Heritage Convention in 1972, “a seemingly innocuous treaty under which countries proposed historic or scenic sites for the international equivalent of a landmarks registry.”18 But the big surprise came more than twenty years later when the U.N.’s World Heritage Committee opined that a proposed mining operation near Yellowstone National Park, one of the registered sites, would not be appropriate. It took another bill in the House of Representatives, requiring specific congressional approval for international inspection of U.S. sites, to put that cow back in the barn.

  A more current example of international law challenging domestic values concerns the death penalty. It is difficult to see how a criminal sentence, arrived at through a judicial system, could be anything other than a matter of domestic law. Indeed, the death penalty was not prohibited by the Universal Declaration of Human Rights in 1948, having just been imposed by the Nuremberg and Tokyo tribunals. The European Convention on Human Rights, adopted two years later, recognized a person’s right to life, “save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”19 About onehalf of nations retain capital punishment in some form.

  Nevertheless, many human rights activists would like to eliminate the death penalty altogether and would use international law, if possible, to do so. When a rapporteur from the U.N. Commission on Human Rights came to the United States to examine capital punishment, he mentioned that the United Nations was increasingly moving to a position against the death penalty. One wonders how that became a part of the United Nations agenda and how, short of a vote, it could have become an operative concern. Once again, however, international law may become a platform for influencing U.S. domestic policy.

  Indeed, an agenda is developing that could attempt in a whole host of areas to replace American values by those decided internationally. A current emphasis on human security, rather than on national security, could lead to international intervention in previously domestic matters. As on
e commentator noted: “Once security is defined as human security, security policy embraces the totality of state responsibilities for the welfare of citizens from the cradle to the grave.”20 International conferences, to be followed by treaties, continue to develop the rights of women and children in ways that conflict with U.S. law and religious practice. Building on the success of the land mines treaty—which moved that issue from arms control conferences of nations to humanitarian meetings led by NGOs—human rights activists have discussed limits on small arms and even attempts to control the size and scope of the military forces of individual nations.

  Moving from the practical to the strategic, the current expansion of international law seeks to move power away from the U.N. Security Council, where the United States can protect its values and interests with its veto power, to other forums and organizations where it is one nation (no matter how small), one vote. Advocates of the ICC freely admit that a primary reason they sought an independent prosecutor, rather than relying on the U.N. Security Council as had been done in the ad hoc tribunals, was to avoid the politics of the permanent members and their veto power. Likewise, the land mines campaign clearly moved its agenda outside of U.N. processes. New diplomacy advocates urge reform of the Security Council, especially expansion of its membership and elimination of the veto, but in the meantime they are eager to move ahead in other forums where U.S. influence can be neutralized and outvoted.

  In more conceptual terms, the United States is right to be concerned that the expansion of international law shifts power away from the people and toward more remote, and less democratic, bureaucracies and elites. With its values of grassroots and bottom-up approaches to governance, the United States would not even grant its own courts some of the powers accorded the ICC. International organizations rarely incorporate the kinds of political checks and balances or accountability that are at the core of American federalism. Also, the recent appointments of nations known as violators of human rights to important U.N. positions of human rights leadership should remind the United States of the dangers of accountability to international institutions that do not share its democratic values.

  In the final analysis the expansion of international law threatens what the United States perhaps values most: its own sovereignty. The basic stance of the globalists is that state sovereignty is an antiquated seventeenth-century concept that will eventually give way to the regional and international institutions that make up the growing web of global governance. They argue that with global communication and markets come global problems that transcend sovereign states and require global solutions. A transition away from state sovereignty and toward global governance is, in the view of the new diplomacy advocates, an evolution to a higher order of things. Those, like the United States, that prize sovereignty are thought to be defending a dinosaur.

  Of course sovereign states have been the foundation of the world order at least since the Treaty of Westphalia in 1648. A few new treaties will not change that. But at a deeper level, is state sovereignty an antiquated idea that is simply playing out its string? The case for the continued relevance and usefulness of state sovereignty needs to be reexamined. State sovereignty breaks government down into useful, functional entities that can effectively oversee territories and people. Compared with remote international institutions, state sovereignty brings government closer to the people, a fundamental policy principle that is as relevant today as ever. State sovereignty protects national self-determination and cultural diversity, allowing people to keep historical languages and customs.

  Indeed one could argue that some of the most important global agenda items today are better addressed by sovereign states than by international institutions. The problems of terrorism and global security, for example, have only been dealt with when sovereign states took up the challenge. Is anyone really prepared to say that international law and institutions are reaching the point where they are effective in the face of such military and political challenges? Stability requires order, education, and a host of public goods best provided by a sovereign government. Indeed, weakened states generally encourage conflict, as many nations in Africa have learned.

  In short, state sovereignty is far from the anachronism some liberal internationalists would have us believe. It has strengths that international institutions would be hard-pressed to develop. If the world is moving down the road toward greater global governance, it is moving slowly, and the movement will need to find a way to respect and incorporate state sovereignty. The rumors of its demise are both premature and overstated. The United States is on the right side of the state sovereignty as opposed to global governance dilemma and should not be blamed or shamed into giving up its position.

  Conclusion

  Having won the Cold War superpower game, the United States now finds itself at a new diplomatic table with new players and tactics. A new diplomacy, led by NGOs and several small- and medium-sized states, seeks to advance its agenda through the expansion of international law. Although cast in lovely marketing terms such as “soft power,” “the rule of law,” and “our global neighborhood,” the new diplomacy agenda essentially seeks to shift the diplomatic game away from U.S. military and economic strength toward international law and institutions where NGOs, especially, have come to play a leadership role.

  At the same time this treaty-based agenda presses forward, globalists seek to expand the legal doctrine of universal jurisdiction and to strengthen the hand of international institutions. Moving away from state sovereignty and toward global governance is clearly the agenda.

  Even though the United States has chosen not to sign most of the new diplomacy treaties, American values and interests are nevertheless threatened by this attempt to expand international law. It will not be enough for the United States simply to say “no” to the new diplomacy. The United States will need to energetically engage the new players and tactics, making the case that strong and sovereign states will better meet the needs of the twenty-first century than will wholesale expansions of international law.

  * * *

  1. John R. Bolton, “Is There Really ‘Law’ in International Affairs?” Transnational Law and Contemporary Problems 10 (Spring 2000): 1. See also Robert H. Bork, “The Limits of International Law,” The National Interest (Winter 1989–1990):3.

  2. Paul W. Kahn, “Speaking Law to Power,” Chicago Journal of International Law 1 (1) (2000): 1.

  3. See Jessica T. Mathews, “Power Shift,” Foreign Affairs 76 (1) (1997): 50.

  4. See Joseph S. Nye Jr., The Paradox of American Power (Oxford: Oxford University Press, 2002): 60. See also Edith Brown Weiss, “The Rise or the Fall of International Law?” Fordham Law Review 69 (November 2000): 350; and Daniel W. Drezner, “On the Balance Between International Law and Democratic Sovereignty,” Chicago Journal of International Law 2 (2) (2001): 322.

  5. Volker Rittberger, ed., Global Governance and the United Nations System (Tokyo: United Nations Press, 2001): 175.

  6. David Scheffer, “Developments in International Law: The United States and the International Criminal Court,” American Journal of International Law 93 (1) (1999): 20.

  7. P. J. Simmons, “Learning to Live with NGOs,” Foreign Policy 112 (Fall 1998): 82. See also “NGO, Heal Thyself!” Foreign Policy 135 (March/April 2003): 16.

  8. See David Davenport, “The New Diplomacy,” Policy Review 116 (December 2002/January 2003). See also Andrew F. Cooper et al., eds., Enhancing Global Governance: Towards a New Diplomacy (Tokyo: United Nations University Press, 2002).

  9. See Maxwell A. Cameron et al., eds., To Walk Without Fear (Oxford: Oxford University Press, 1998).

  10. See Herman von Hebel, “An International Criminal Court: A Historical Perspective,” in Reflections on the International Criminal Court (The Hague: Klewer Law International, 1999): 13.

  11. See Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law (Transnational Publishers, 2002): 40–42, 79.


  12. John Rosenthal, “A Lawless Global Court,” Policy Review 123 (February/ March 2004): 32–35.

  13. Ibid.

  14. Vienna Convention on the Law of Treaties, May 22, 1969, art. 19.

  15. Ibid., art. 34.

  16. Rome Statute of International Court, July 17, 1998, art. 12(2).

  17. The Commission on Global Governance, Our Global Neighborhood (Oxford University Press, 1995).

  18. Jeremy Rabkin, Why Sovereignty Matters (Washington, D.C.: The AEI Press, 1998): 46–47.

  19. Robert F. Drinan, The Mobilization of Shame (New Haven, Conn: Yale University Press, 2002): 131.

  20. Ramesh Thakur, “Security in the New Millennium,” in Andrew F. Cooper, et al., eds., Enhancing Global Governance (Tokyo: United Nations University Press, 2002): 275.

  — 5 —

  The Dangerous Myth of Universal Jurisdiction

  Lee A. Casey and David B. Rivkin Jr.

  Introduction

  Over the last forty years, activists in the United States, mostly on the left, have used the courts unashamedly to achieve social and political change. This was, perhaps, not surprising in a nation that is largely defined by its constitution and laws, rather than by ethnicity, religion, or race. As early as the 1830s, Alexis de Tocqueville remarked that “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”1 Nevertheless, the late twentieth century marks a distinct period in American legal history, in which social activists consciously worked to advance a political agenda through litigation, and, in many areas, succeeded. Issues such as abortion, birth control, and public manifestations of religious belief, which before had been dealt with, for good or ill, by elected legislatures, were drawn within the ultimate authority of the courts.