The US, International Law, and Anti-Politics

It is common wisdom that Bush represents a radical break with prior presidents when it comes to international law. In a review essay on the US and international law, Brian Urquhart writes about America’s ‘unwarranted assault on international law.’ In a book on War and the American Presidency, Arthur Schlesinger Jr. recently argued that Bush marks a ‘fatal change in the foreign policy of the United States’ when it comes to international law. British critic Martin Jacques has also written that the ‘prime author of the huge growth in international law since 1945 has, in effect, suddenly chosen to opt out.’ It’s not hard to find evidence. Bush has rejected, withdrawn from, or undermined such landmark treaties and organizations as: United Nations Security Council, International Criminal Court, Geneva Convention, Kyoto Protocol, Land Mine Ban, and the Anti-Ballistic Missile Treaty.

Something is clearly going on, but to say Bush is a radical change is considerably over-stating the case. Clinton was no great friend to international law. On the one hand, he instrumentalized international law for his own purposes. The invasion of Haiti in 1994 received UNSC sanction. But it did so only by the US forcing the Security Council to stretch the legal concept of ‘threat to international peace and security’ to the point where it permitted overthrowing the undemocratic government of an impotent third world country. Everyone understood this to be the US deforming international law by using its own political purposes. On the other hand, Clinton bypassed international law when it was an unwelcome constraint on his own agenda. In 1998, Clinton bombed Iraq, claiming he had authority from past Security Council resolutions, because he knew he would not receive separate Security Council authorization for the bombing, and over the objection of the other members. This was stretching law to the breaking point, and setting the precedent for military relations with Iraq that Bush was to exploit in 2003: invoke liberal interpretations of past resolutions to cover up for the lack of legal sanction in the present. And of course, the decision to bomb Kosovo the next year, was explicitly illegal, as the Security Council refused to sanction the use of force. Clinton claimed the higher moral legitimacy of humanitarian necessity, declaring a kind of moral emergency, in which diplomacy and law were dangerous time-wasters. It was in 1999 that two prominent international lawyers asked the question ‘Has US Power Destroyed the UN?’

The point is not to defend international law. As we have suggested before, looking to external instruments like foreign governments or international law to restrain our undemocratic, imperial government is at best a high risk strategy and at worst an abdication of responsibility for domestic criticism and opposition. The responsibility falls primarily on us to deal with our own government, not look for divine intervention. The more challenging point is that the United States has been living in its permanent state of exception – willing to suspend the rules for all kinds of ‘moral’ and security emergencies – since well before Bush. In fact, according to the international relations scholar Chris Coker, ‘Crisis management has become the central political objective’ of post-Cold War American foreign policy. We might say, foreign policy lacks the moment of reflection about broader aims and principles, which politicians on both sides drown out by discovering emergencies – moral and security based – that demand immediate action in the present, rather than open political debate about the future. The real problem, in other words, isn’t that our presidents end up suspending international law per se. It is that their crisis politics suspends real politics. It does so not so much in the name of national security – which Bush has, of course, done – but rather through a somewhat broader invocation of crisis and emergency. During a crisis, the injunction to act overwhelms discussions about objectives and principles, and dissenters are quickly made part of the problem in the first place.

The rules, especially international rules, are often paper barriers to begin with, and in breaking them, Bush is not a lone wolf. A real critique of his relationship to international law, therefore, has to do more than make opportunistic points about how willing he has been to subvert the rules. The problem isn’t the subversion of law but the negation of politics.