Mansell, Wade --- "One law for all (except for the United States of America)" [2006] NZYbkNZJur 2; (2006) 9 Yearbook of New Zealand Jurisprudence 1

Last Updated: 24 April 2015

One Law For All

(Except for the United States of America)

Wade Mansell*

i. intrOdUctiOn

About a hundred years ago when I was studying law in Wellington,¹ Public International Law was an integral part of the LLB. In those dark ages, as I remember it, the position, at least in retrospect was rather strange. The subjects of the LLB brought qualification for legal practice and admission as a solicitor and then as a barrister. Curiously one could qualify as a Solicitor with two LLB subjects yet to be taken, but it was only after the successful completion of these courses that one was eligible to be called as a Barrister. The two additional subjects were Conflicts (Private International Law) and Public International Law.

Unfortunately (or perhaps fortunately) I have not had access to the arcane archives which might have explained this rather remarkable state of affairs and its justification. But as an international lawyer I rather like the idea that no-one was worthy of call to the Bar without an appreciation of international law.

As opposed to 100 years ago, last year I was reading the book of essays produced in honour of Judge Weeramantry² – sometime Vice-President of the International Court of Justice (ICJ). I read with interest Geoffrey Palmer’s contribution³ pleading for an extension of the role of the ICJ and implicitly for greater acceptance of the role of international law in international relations. I was intrigued by it on a number of levels. His piece began with his story of how surprised he was on first attending an American law school (Chicago) to discover that international law, far from being an integral subject of international study was in fact even questioned as a part of international reality. That is, the reality of international law was not an uncontested fact and it was regarded as significantly different from other legal subjects. (I may say that my experience in the United Kingdom and elsewhere in Europe did not reflect his experience, but that also is significant.)

* Director, LLM in International law with International Relations, Brussels School of

International Studies, University of Kent.

1 Or more precisely, from 1963.

2 Anghie & Sturgess (eds.), Legal Visions of the 21st Century: Essays in Honour of Judge

Christopher Weeramantry (1998).

3 ‘International Law and the Reform of the International Court of Justice’ in ibid, 579-600.

Perhaps of more, but related, importance was his plea for the greater role for international law in international relations. As I remember studying international law in Wellington (which I don’t terribly clearly) I think the subject of international relations, as opposed to international law, was never allowed to raise its ugly head. Law was law – a real object of study, and international relations was what or how inter-state relations were carried on until the discourse could be sharpened into legal discourse. I do think that we were implicitly inculcated with a sense of the superiority of law to mere diplomacy, and if the question was asked whether international law was merely an aspect of international relations or whether international relations was merely an aspect of international law we were fairly clear about the appropriate answer. Interestingly this inculcation – which perhaps was the climax of five years legal study – was achieved without any discussion of the relationship.

I think Geoffrey Palmer’s essay really raises most fundamental questions

– namely, Should international law have a greater role in international relations? Could international law play a greater role in international relations? How could international law play this increased role? Is there scope for a return to the debate about extending the compulsory jurisdiction of the ICJ? In my oblique consideration of this question I bear in mind that I may tire Sir Geoffrey who unanswerably observed that he had become ‘somewhat tired of international lawyers who lack political experience making conservative judgments about what is politically possible’.⁴

From a New Zealand perspective, and probably generally from a United Kingdom or a European perspective the development of international law has the appearance of what E.P. Thompson said of the Rule of Law - ‘an unqualified good’. And it probably comes as something of a surprise that such a view is not universal.

I want to begin this article proper by explaining what it is not about. This hopefully will define the parameters of what it is concerned with. Firstly, contrary to the title as printed (erroneously) in the programme it is not about law in the United States, but rather the attitude of the United States to international law. Secondly, it is not about the perfidy of the United States, or indeed any other state. Thirdly, it is not about a purely academic matter. The attitude of the Bush administration to international law has already affected its actions not only in its decision to invade Iraq, but in its many considered human rights violations arising out of that war and the Afghan conflict. In other words this is an academic argument that has real consequences.

4 Ibid, 591.

ii. internatiOnaL reLatiOnS gOverned B y

‘rULe OF Law’ Or ‘OptiOnaL etiQUette’?

Rather the argument this article seeks to make is that in a ‘unipolar world’ the concept of international law requires new appraisal and justification, with both appreciation of its limitations and its potential. The New Zealand perspective is understandable and attractive – seemingly, just as in domestic law, the development towards the rule of law in international relations, carries with it implications of moving beyond the dispute resolution system of ‘trial by battle’ (might is right) to situations where regardless of the physical strength of the individual protagonists, right can be seen to triumph over might. Any other perspective seems to fundamentally attack one of the very bases of international law, that of sovereign equality. I shall return to this point shortly.

It is no exaggeration to say that the New Zealand perspective finds little favour with the current American Administration. Significant academics, and especially Michael Glennon from the Fletcher School of Diplomacy, have been prepared to argue that given the new reality of a sole world super- power international law as understood in the Cold War is simply no longer relevant, or indeed real.⁵ In the face of those who optimistically repeat Louis Henkin’s mantra:

It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.⁶

Glennon would reply that such observation of state behaviour, even in so far as it is accurate, says nothing about law and everything about states acting in their own interests, as perceived by themselves, regardless of so-called law.

He is not alone. Indeed in a very recent book, The Limitations of International Law,⁷ the American authors concluded that the purpose of ‘international legal rhetoric is to mask or rationalize behaviour driven by self-interested factors that have nothing to do with international law.’⁸ States, they suggest, speak the language of obligation while following the language of self-interest. They even deny that states ever comply with international law for non-instrumental reasons. While, they say, ‘Mainstream international law scholarship does not deny that states have interests and try to pursue them’ it also claims ‘that

5 Glennon M, ‘Why the Security Council Failed’ May/June 2003 Foreign Affairs 16. A slightly longer (and slightly more circumspect) version of this piece is to be found as ‘The UN Security Council in a Unipolar World’ (2003) 44 VirginiaJInt’lL 91.

6 Henkin, L, How Nations Behave: Law and Foreign Policy 2^nd Ed (1979).

7 Goldsmith & Posner (2005).

8 Ibid, 226.

international law puts a significant brake on the pursuit of these interests.’ Such a so-called ‘pull toward compliance’⁹ is completely rejected by Goldsmith and Posner. The theme of the book is, in essence, that international law is real only as a phenomenon, and that international law scholars grossly exaggerate its power and significance. Even the recognition of international law as a phenomenon carries with it few implications for its effectiveness.

Within the current American Administration such views are entirely consistent with those of the neo-conservatives who play an active part in George W Bush’s government. (Under this neo-conservative label I am including Elliot Abrams, John Bolton Dick Cheney, Douglas Feith, Robert Kagan, Richard Perle, Donald Rumsfeld and Paul Wolfowitz, not all of whom remain in the administration but all of whom have played a major role in the past.) What is it that defines neo-conservatives and neo-conservatism? Here one has to be careful. While they do have a coherent philosophy and set of beliefs, with a consequent diagnosis of the world’s ills and a prognosis for its recovery, it is important to observe that they are in no sense clones and not all would subscribe to the following typifications. With that caveat however it is possible to say that many ‘progressed’ from being active participants in the ferment of the 1960s and 1970s to the point where they enthusiastically embraced the policies (particularly the foreign policies) of Ronald Reagan, and were prepared to take them even further.¹⁰ Neo-conservatives tend to share a belief that the American victory in the Cold War (seen as a direct product of the Reagan policies) brought much less in the way of the spoils to the victor than could (and should) have been expected. The desirable spoils were not merely financial but rather ideological. Liberal democracy with liberal free-market capitalism was both the means of victory and should universally have been the reward of victory.¹¹ Certainly the right to promote these policies should have been unquestionable. Most neo-conservatives would have agreed with the argument put forward by Michael Reisman¹² in 1990 to the effect that undemocratic governments lack the sovereignty which allows them to take advantage of the sovereign equality spoken of in the United Nations Charter. If undemocratic governments are de-legitimised in this way their right to non-interference is called into question.

9 See Franck, T, The Power of Legitimacy among Nations (1990).

10 For a useful discussion of neo-conservatism generally see Halper and Clark, America Alone: The Neo-Conservatives and the Global Order (2004). Also see J.F. Murphy, The United States and the Rule of Law in International Affairs (2004); C.Reus-Smit, American Power and World Order (2004); and B.Hamm, Devastating Society: The Neo-Conservative Assault on Democracy and Justice (2005).

11 On which of course see Fukuyama, F. The End of History and the Last Man (1992).

12 Reisman, M, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990)

84 AJIL 866. See also Roth, B, Government Illegitimacy in International Law (2000).

As to the Middle East, the neo-conservatives are uncompromisingly among the most pro-Israel factions in the entire United States. States surrounding Israel are seen as undemocratic, threatening and aggressive while Israel’s most expansionary plans are regarded with equanimity, and usually explicit support. Many of the neo-conservatives in the Bush administration have in earlier days, enjoyed employment in Washington with what are generally described as, and accepted as being right wing ‘think tanks’, often largely paid for by Israeli and pro-Israeli groups. These include the American Enterprise Institute, the Heritage Foundation, the Hudson Institute and Freedom House. Not surprisingly these institutions also place great emphasis upon conservative values, particularly concerning family and religion.

But it is the neo-conservatives’ attitude to international affairs which is most important for this paper. Out of the Cold War victory came two rather clear conclusions. The first was that the United States really was in a position of unprecedented military superiority - superiority unchallenged, and if correct policies were pursued, seemingly unchallengeable. Secondly this superiority was of limited use unless it could be employed to not only defend the United States but to promote its interests as perceived. If the Great Satan of the Union of Soviet Socialist Republics had been slain there were yet many lesser Satans (soon to form an ‘axis of evil’), countries with ideologies not compatible with American views of democracy, capitalism and free markets and which required ‘attention’.

A moment’s reflection will no doubt suggest to all of us that such goals, laudable though many Americans might think them, do not sit terribly comfortably with what most of us thought to be the international law basis of world order. Perhaps most problematically, neo-conservatives (and, it has to be admitted, with the support of Tony Blair) refused to rule out ‘regime change’ for states which did not ‘enjoy’ democratic legitimacy. Long before the suicidal attack upon the Twin Towers and the Pentagon on 11 September 2001, neo-conservatives had been advocating the removal of Saddam Hussein. Many of the most influential had signed a letter to President Clinton in January 1998

urging just such action.¹³ Westphalian notions of sovereignty and particularly of sovereign equality as they had developed all the way to the United Nations Charter, were seen as an impediment to the beneficial creation of a world in the United States’ image.

Before considering this re-assessment of sovereignty one or two basic points need to be made about the range of neo-conservative views upon international law more generally. The views seem to range from the ‘exceptionalists’ (or

‘exemptionalists’ in Michael Ignatieff’s terminology) who would argue that as a matter of fact the military (and some would argue, moral) superiority necessarily places the United States beyond the scope of international law; all the way to those who argue that international law is nothing more than international relations and thus has no legal effect upon any state. The first position may not be unlike that of Oppenheim, writing in 1912,¹⁴ but later quoted with approval by the international relations scholar, Hans Morgenthau, in the 1960s.

The balance of power says Morgenthau, according to Oppenheim is ‘an indispensable condition of the very existence of international law.’¹⁵ And Oppenheim continued:

Six morals can be deduced from the history of the development of the Law of Nations:

1) The first and principal moral is that a Law of Nations can exist only if there be an equilibrium, a balance of power, between the members of the Family of Nations. If the Powers cannot keep one another in check, no rules of law will have any force, since an over-powerful State will naturally try to act according to discretion and disobey the law. As there is not and never can be a central political authority above the

13 Letter from the “Project for the New American Century” to President Clinton of 26

January 1998 urging action, unilateral if necessary, to overthrow Saddam Hussain and to ensure a new regime in Iraq. While considering that this course of action was already legitimate under existing United Nations’ Security Council Resolutions the letter nevertheless stated “In any case, American policy cannot continue to be crippled by a misguided insistence on unanimity in the United Nations Security Council.” The letter was signed by many who had played a part in the Administration of Ronald Reagan and/or the first Bush administration and who clearly considered that there remained unfinished business. The signatories included Elliot Abrams, John Bolton, Robert Kagan, Richard Perle, Donald Rumsfeld and Paul Wolferwitz (and indeed, Francis Fukuyama). Letter may be found at: http://www.newamericancentury.org/iraqclintonletter.htm

14 Oppenheim, L, International Law 2^nd Ed (1912).

15 Morgenthau, H, Politics Among Nations 3^rd Ed (1966) 278.

Sovereign States that could enforce the rules of the Law of Nations, a balance of power must prevent any member of the Family of Nations from becoming omnipotent.¹⁶

In other words because there is no longer a balance of power the United States has become, if not omnipotent, at least sufficiently out of equilibrium as to exempt itself from international law.

Such arguments have been analysed, not least by Harold Hongju Koh,¹⁷ and he shows that even within the concept of exceptionalism there are a range of possible interpretations, some less objectionable than others but the worst of which suggests a double standard by which it is proposed that because of power, a different rule should apply to the United States from that applicable to the rest of the world.

Recent well-known examples include such diverse issues as the International Criminal Court, the Kyoto Protocol on Climate Change, executing juvenile offenders or persons with mental disabilities, declining to implement orders of the International Court of Justice, with regard to the death penalty, or claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons. In the post 9/11 environment, further examples have proliferated: America’s attitudes toward the global justice system, holding Taliban detainees on Guantanamo without Geneva Convention hearings, and asserting a right to use force in pre-emptive self-defence...¹⁸

While the difficulty inherent in these views is obvious to non-Americans, some, including John Bolton, and arguably Goldsmith and Posner, would go even further than Koh’s ‘worst case scenario’ and state that not only is the United States to be exempted from international law but in fact international law is not to be regarded as binding on any state. Elsewhere I have described John Bolton as a member of the American Redneck School of Jurisprudence (a description that I fear might appeal to him), but certainly he remains an

‘Austinian’ in a sense not usually found beyond some international relations scholars. By ‘Austinian’ of course I mean that he takes the view that because international law lacks regularly applied sanctions in the event of non- compliance, the appellation ‘law’ is misapplied and the whole category is no more than international relations. Were it not for his position as the United States Ambassador to the United Nations his views might seem readily dismissable.

16 Oppenheim, supra n 14 at 193.

17 ‘On American Exceptionalism’ (2003) 55 StanLR 1479.

Bolton’s attack on international law is comprehensive.¹⁹ It is an attack on treaty law and customary international law, along with the other usually claimed sources of international law as found in Article 38 of the Statute of the International Court of Justice of 1945.

As we all know almost all international lawyers and all state governments are in agreement that at the heart of international law is the crucial principle of pacta sunt servanda (usually loosely translated as agreements or promises are to be honoured). Acceptance of this principle is one immediate means of distinguishing international law from international relations. It is because it is a legal principle that it is generally accepted uncritically. This, however, does not mean that a state will invariably comply with the principle, just as in domestic jurisdiction not all will obey all laws. But two obvious points need to be made. The fact of occasional non-compliance in the domestic realm does not negate the law. The same is true internationally. Secondly, internationally even if there is no direct sanction, the price of breaking treaty obligations will rarely be cost free, though it may be nothing more than a level of opprobrium from other states, or a hesitancy upon their part to enter into future international legal relations. Universally accepted though this is, Bolton disputes it. When Bolton claimed in 1997 that regardless of the United Nations Charter, the United States was not bound to pay its United Nations dues, the response from Robert F. Turner of the University of Virginia Law School was as follows:

How do we know that international treaty commitments are legally binding? Because every single one of the 185 [now more] states that are members of the United Nations, and every one of the few states that are not, acknowledge that fact. Article 26 of the Vienna Convention on the Law of Treaties recognizes the fundamental and historic principle of pacta sunt servanda: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’

To be sure, like some of our own citizens, members of the international community of states do on occasions violate their legal obligations. But when they do, they never assert that treaty commitments are merely non-binding “political” undertakings. Stalin, Hitler, Kim Il Sung, Gadhafi and Saddam Hussein all either denied the allegations against them, pretended that their acts of flagrant international aggression were really in ‘self-defence’ to a prior attack by their victims, or proffered some other legal basis for their conduct.

19 See particularly Bolton, J, ‘Is There Really ‘Law’ in International Affairs?’ (2000) 10

Transnat’l L. & Contemp. Probs. 1; Bolton, J, ‘Should We Take Global Governance

Seriously?’ (2000) 1 ChiJInt’lL 205.

Not one of them asserted that treaties ‘were not binding,’ because they realized that no country would accept such a patently spurious assertion – it simply would not pass the straight-face test.²⁰

Why then does Bolton want to argue that treaties are not legally binding upon the United States and what are the implications? There are two aspects to his arguments here. The first is concerned with the status of treaties in the international world, and the second with the status of treaties within the domestic jurisdiction of the United States. Internationally it is the lack of sanction which persuades Bolton that the obligation to comply can only be moral or political (neither to be underestimated but, he says, not to be confused with the legal). If one accepts his premise that it is only the threat or use of sanctions which makes an obligation legal then his argument is irrefutable. Few would accept the premise. Legality is not in essence necessarily linked with sanction or punishment. Rather most lawyers would accept that the legal quality arises from the universal acceptance of the legal aspect. This is not as circular as it sounds. It is because of the acceptance of the legal quality of pacta sunt servanda that overwhelmingly most states, almost all of the time, accept their treaty obligations automatically, and only very rarely subject them to unilateral reconsideration. Bolton attempts to avoid this argument by emphasising that his position does not mean that the United States should not ordinarily comply with its treaty obligations, only that it need not do so. With this position the debate might seem to be purely semantic, arising from his understanding of the term ‘legal’. It is more than that, simply because by avoiding ascribing the term ‘legal’ Bolton hopes both to elevate the United States’ right to ignore treaties, and to downgrade the need for compliance.

Bolton effectively admits this intention when, having observed that ‘[i]n the rest of the world, international law and its ‘binding’ obligations are taken for granted,’²¹ he goes on to observe of American citizens: ‘When somebody says “That’s the law”, our inclination is to abide by that law. Thus if “international law” is justifiably deemed “law”, Americans will act accordingly.’²²

On the other hand, if it is not law, it is important to understand that our flexibility and our policy options are not as limited as some would have us believe. It follows inexorably, therefore, that the rhetorical persuasiveness of the word

‘law’ is critically important.²³

20 John Bolton’s article “US Isn’t Obligated to Pay the UN” appeared in the Wall St. J. Nov 17,

1997, at A27. Robert Turner’s response appeared in the same Journal as a letter, “US and UN: The Ties that Bind” December 1 1997. Both are quoted from J. Murphy, The United States and the Rule of Law in International Affairs, supra n 10 at 11.

21 Bolton, ‘Is There Really ‘Law’ in International Affairs?’ supra n 18 at 8.

22 Ibid, 9.

It is manifest then, and admitted, that the argument he makes is driven by the end he wishes to achieve – the return of international law to the political world.

If therefore, his arguments about the international obligations arising from treaties are specious, what of customary international law? For Bolton

‘customary international law’ deserves, at the least, inverted commas expressing incredulity. Of course debates over customary international law are familiar and continuing²⁴ and there are problems in defining when customary international law comes into existence, there are difficulties in proving opinio juris, there are problems with the position of ‘the persistent objector’, and there are problems with flexibility and malleability. Such nice jurisprudential questions have no place in Bolton’s mind. He denies the very existence of customary law. For him ‘Practice is practice, and custom is custom; neither one is law.’

Again this extraordinarily extreme position is driven by the conclusion which Bolton seeks, namely the view that the United States is not, and should not be, constrained in its policy decisions or conduct by any customary international law whether in its international relations or domestically. Internationally, as explained in his discussion of the Comprehensive Test Ban Treaty, Bolton’s view is that the United States must pursue its own path. If this path should coincide with what other states regard as customary international law that is well and good, but it is coincidence, not compliance

As with treaty law, any recognition of customary international law has both international and domestic significance and implications. This is particularly true in the area of human rights. Bolton’s fear is that through means other than internal democratic approval, changes in standards created by ‘the international community’ might affect the United States. Thus internally he fears for instance, that United States Courts could (though he approves the fact that they generally do not) look to developing international customary law in determining whether the United States death penalty might constitute cruel or unusual punishment. Internationally, the effect might be to incur international legal condemnation for acts seen by the American Administration as necessary for its own security or interests.

I have spent more time on Bolton than you might think necessary. But I have done so because while his position might be almost the most extreme among the neo-conservatives, it is also acceptable in practice to John Yoo, now a

24 See especially A. D’Amato, ‘Trashing Customary International Law’ (1987) 81 AJIL 101; M. Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (1999).

Boalt Hall Professor, but before that the Government lawyer who argued that international law that did not permit the United States to ‘pressurise’ terrorist suspects and their friends need not be complied with. It is also acceptable to Alberto Gonzalez, now the United States Attorney General, but earlier the White House legal counsel who advised that the Geneva Conventions did not apply to those Al Qaeda and Taliban suspects held in Guantanamo in Cuba.²⁵

And the list could go on.

iii. internatiOnaLLy eQUaL SOvereignS?

But I turn now to the other abomination in the eyes of neo-conservatives. That is the principle of sovereign equality again regarded by many as a cornerstone of the entire international legal regime. A first question arising from this neo-conservative cynicism towards sovereign equality is ‘does it matter?’. In particular why should ‘sovereign equality’ guarantee the survival of an abhorrent regime? Before attempting to answer that question I should exemplify the sort of position adopted by neo-conservatives. Michael Glennon is particularly scathing. On one occasion he observed: ‘Architects of an authentic new world order must therefore move beyond castles in the air – beyond imaginary truths that transcend politics – such as, for example... the notion of the sovereign equality of states.’²⁶ Later the sovereign equality of states is described as ‘...one particularly pernicious outgrowth of natural law.’²⁷ And, he continues:

Applied to states the proposition that all are equal is belied by evidence everywhere that they are not – neither in their power, nor in their wealth, nor in their respect for international order or for human rights. Yet the principle of sovereign equality animates the entire structure of the United Nations – and disables it from effectively addressing emerging crises, such as access to WMD [Weapons of Mass Destruction], that derive precisely from the presupposition of sovereign equality.²⁸

He exemplifies what he sees as unforgivable irrationality by considering the weight of the votes of elected members of the Security Council being for some purposes, the equal of those of the veto powers. And of course, it is because of the assertion of the United Nations Charter of sovereign equality, that Article

2(7) has been understood to proscribe forcible intervention except pursuant

25 See Danner, M, Torture and Truth: America, Abu Ghraib and the War on Terror (2005); Greenberg & Dratel, The Torture Papers; The Road to Abu Ghraib (2005).

26 Glennon, supra n 5 at 32.

27 Ibid. In fact this relationship between natural law and sovereign equality is highly problematic. It seems much more clearly derivable from the “anthropomorphosising” of states and their creation as legal persons with international personality.

28 Ibid.

to a Security Council decision under the Charter’s Chapter VII. Believing, as Glennon does, that the Security Council was utterly wrong not to have supported United States intervention in Iraq leads him to a position of which even Bolton might have been proud: that the United Nations Charter is now no longer to be regarded, for various reasons, as a binding treaty.

The decision of the United States to ignore sovereign equality in the attack upon Iraq surely does illustrate that the American Administration has accepted Glennon’s arguments.²⁹ For those who do not accept that, the utter fiasco of the Iraqi occupation answers the question as to whether sovereign equality should still be respected. A number of other points could be made but I have already made them elsewhere.³⁰

A recent book considering the question of the concept of sovereignty of direct relevance to this paper is Gerry Simpson’s Great Powers and Outlaw States; Unequal Sovereigns in the International Legal Order.³¹ Critically for this argument Simpson takes the view that the concept of sovereign equality has three distinct aspects not all of which lead to assumptions of real equality. The first is ‘formal equality’, defined as no more than ‘equality before the law’ and which ‘extends neither to forms of jurisdictional equality nor to equal capacity to vindicate rights outside the judicial context.’³² I say ‘no more than’ but as I shall suggest this is a truly crucial feature, necessary for any international rule of law. The second aspect is ‘legislative equality’, to be found for instance in the General Assembly of the United Nations with its single vote for each state. In truth, as he recognises, this is one of the few places where legislative equality is accepted and enjoyed. More typically strength and wealth will dictate legislative power as is all too clear both in the Security Council and in the deliberative bodies of the international financial institutions.³³

‘Existential equality’ is the third aspect of sovereign equality. This is really an equal right to existence with the accompanying corollary of the principle of non-intervention (and generally certainly not for purposes of regime change). Simpson shows that traditionally, historically as well as contemporaneously

29 Although Glennon’s article came after the invasion of Iraq, he had made many of the same points in his book, Limits of Law, Prerogatives of Power: Interventionism After Kosovo (2001).

30 See, in particular, Mansell, W, ‘Goodbye to All That? The Rule of Law, International Law, the United States, and the Use of Force.’ (2004) 31 JLaw&Society 433-456; Mansell & Haslam, ‘John Bolton and the United States’ Retreat from International Law’ (2005) Social

& Legal Studies 459-485.

31 (2004).

32 Ibid, 47.

33 And ironically, even in the selection of the judges of the ICJ where formal equality is important.

this has been more problematic than some might wish to believe. The claimed anti-pluralist (that is, universal) virtue of ‘liberal democracies’³⁴ he suggests resonates with times of proclaimed ‘Christian’ ‘European’ or ‘civilized’ superiority used as a justification for intervention. Pariah or rogue states have replaced the heathen, the primitive and the uncivilized states which were historically beyond the realm of ‘unintervenability’.

When analysed in this way I think that the response to Geoffrey Palmer’s urge for a greater role for the ICJ becomes predictable. Formal equality for judicial purposes is exactly what the current American Administration and its neo-conservatives fear and why its acceptance of any compulsory jurisdiction will never be as it was before the case of Nicaragua v. USA.³⁵ The decision is that as American might always is righteous there is no need for a tribunal which might fail to grasp such an elementary principle. And while legislative equality within the General Assembly is unpalatable to the United States, it is at least almost meaningless because of the limited power to be found in that body.

iv. cOncLUSiOn

Where then have we got and what might we conclude? The first conclusion is that we as international lawyers should be well aware of just how great the current American regime’s threat is to the edifice of international law. Exceptionalism undercuts the whole premise of equality before the law. If sovereign equality is rejected and pacta sunt servanda has become redundant then at the least the United States is unaccountable and free from obligation. How might such a position be resisted? At the risk of returning to a nineteenth century understanding of international law my suggestion is that the United States can only be expected to change its position when it concludes that the gains in supporting and embracing international law – even that to be found in the United Nations Charter – clearly outweighs the losses. Of course decisionmaking will be consequently constrained, but the United States has a great deal to lose if it elects to reject this position.

The United States, while supremely powerful, is clearly not omnipotent, and with regard to many international situations, such as Chechnya and Tibet it is actually impotent. Iraq has shown the immense expense and cost of going

‘nearly alone’, and the contrast between what the United States got out of the

first Gulf War when it enjoyed international support and legality, and what the

34 On which see Fukuyama, F, The End of History and the Last Man (1992).

35 (1984) ICJ Rep 551 and (1986) ICJ Rep 14.

14 Yearbook of New Zealand Jurisprudence Vol 9

second has cost it, is astounding. The clear conclusion for neo-conservatives and other Bush personnel alike is that compliance with international law brings its own reward.