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International Law and the Nation-State at the U.N.: A Guide for U.S. Policymakers
The Heritage Foundation ^ | August 18, 2006 | Lee A. Casey and David B. Rivkin, Jr.

Posted on 08/24/2006 8:49:56 AM PDT by hedgetrimmer


Americans have pretty much always felt entitled to make law for themselves. As Virginia royal governor Alexander Spotswood complained 60 years before the Declaration of Independence, “by their professions and actions they [the colonials] seem to allow no jurisdiction, civil or ecclesiastical, but what is estab­lished by laws of their own making.”[1] That position was vindicated by the Revolution and remained unchallenged in any serious way for two centuries. Today, however, there is an advanced and determined movement afoot that—through the mechanisms of international law and super-national institutions—does challenge the right of the United States to define its own legal obligations as an independent and sov­ereign nation-state.

The Founding Generation, of course, knew inter­national law and recognized its importance in facili­tating relations between states. They readily accepted that, as an independent sovereign, the United States was bound by international law to the same extent as were the other “powers of the earth.” This much was made clear by the Declaration of Independence itself, which explained why it had become “necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”

In 1776, international law was considered, philo­sophically at least, to be a species of Natural Law: the “law of nations.” Such law could be discovered or discerned in the practice of states, but it could not be “made” in the manner of domestic or municipal legislation. Then, as now, there was no global body politic and no global legislature. Consequently, as was necessarily implied by the inherent equality of every independent state, no state or league of states had the right to establish the legal obligations of any other state. All were equally competent to determine and interpret international law for them­selves. As a result, and in no small part because international law did not purport to govern any state’s internal affairs, American democracy flour­ished in this world despite being virtually alone in its republican institutions.

Global politics have, of course, been transformed many times since the United States declared its independence. In the post–World War II era, and especially since the Cold War ended, a widening swath of world opinion has come to view interna­tional law and institutions as inherently superior to national ones, as the very font of legal and political legitimacy, and as a proper and appropriate means of achieving change even within national borders. The following quotation, from a German Foreign Ministry description of the newly established Inter­national Criminal Court (ICC), perfectly captures these attitudes:

It is a monumental achievement in the field of international legal policy that individuals who have transgressed their obligations to the international community as a whole may be held responsible by an independent international judicial institution. The ICC thus symbolizes jurisdiction exercised on behalf of the community of nations.[2]

At the same time, it is also fair to say that, beyond a few academics and activists, most Ameri­cans do not look to international institutions or the “international community” for validation of their government’s actions or their own. One might well ask, in response to the German Foreign Ministry, what is the “international community”? Does it, for example, include China’s Communist rulers or the Persian Gulf’s divine right monarchs? And what obligations, exactly, might Americans have to them? Law, in the United States, is made by our elected representatives, and the measure of its legit­imacy is the United States Constitution.

As a result, of course, international law has never been treated as a rigid and imperative code of con­duct by U.S. policymakers. This attitude toward international law transcends political ideology and party label. Nowhere was it better displayed than in an exchange between then Secretary of State Madeleine Albright and her British counterpart, Foreign Secretary Robin Cook, during the run-up to NATO’s 1999 intervention in Kosovo. As reported by Mrs. Albright’s spokesman James Rubin, when Cook explained that British lawyers objected to the use of military force against Serbia without U.N. approval, she replied simply “get new lawyers.”[3]

Mrs. Albright’s suggestion was perhaps undiplo­matic, but it revealed a firm grasp of the essential genius of international law: It is a body of norms made by states for states, and its content and appli­cation are almost always open to honest dispute. Moreover, and most important of all, there is no global power or authority with the ultimate right to establish the meaning of international law for all. Every independent state has the legal right—and the obligation—to consider and interpret interna­tional law for itself. In other words, when questions are asked about the meaning and requirements of international law, the answers will probably, and properly, depend on who the lawyers are.

This does not mean that international law is illu­sory or that it can or should be ignored by states in the day-to-day exercise of power. It does mean, however, that international law is best viewed as a collection of behavioral norms—some arising from custom and some from express agreement, some more well-established and some less so—that it is in the interest of states to honor. As Chief Justice John Marshall explained in 1812 in describing one important aspect of international law:[4]

The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented [to certain legal norms].

The key, of course, is consent. Ultimately, the binding nature of international law is a matter of the consent of sovereign states. They can interpret that law in accordance with their understanding and interests, they can attempt to change it, and they can choose to ignore it—so long as they are prepared to accept the very real political, eco­nomic, and even military consequences that may result. This is the essence of sovereignty, which itself is the basis and guarantor of self-government.

This paper is designed as a short guide to inter­national law for American policymakers. The topic area is, of course, vast—even when the inquiry is limited to what is commonly known as “public international law” (the rules governing the conduct of states) rather than international trade relations. As a result, the scope of the material treated here is necessarily limited and selective. An effort has, however, been made to discuss the most important tenets of international law as it is today applicable to the United States and to identify the current con­troversies over this law’s interpretation and applica­tion that most profoundly divide the United States from its European Allies. In fact, the understanding of how the world’s nations are, or should be, orga­nized in their inter-relations and what role interna­tional law and judicial institutions should play in that great endeavor is one area where differences between the United States and Europe are growing rapidly and are likely to produce increasing future tension and diplomatic conflicts.

Definition of Terms

I. What Is International Law?

Perhaps the most important and vexing question about international law is whether or not it is “law” at all.[5]

Traditionally, international law existed as a col­lection of principles and practices—some based on custom and some based on treaties—that govern the interactions of sovereign states. As a theoretical matter, most commentators found the basis of this “law of nations” in some form of Natural Law. As noted by Emmerich de Vattel in the 18th century, “We must then apply to nations the rules of the law of nature, in order to discover what are their obli­gations, and what are their laws; consequently, the law of nations is originally no more than the law of nature applied to nations.”[6]

Whether the actual practitioners of statecraft ever took the “divine” or “natural” foundation of international law very seriously, at least after the emergence of the “Westphalian” state system in 1648, is debatable.[7] Over time, most states have complied with these rules in accordance with their needs and interests, always keeping in mind that violations of accepted norms can carry significant consequences—up to and including war. However, from the perspective of current debates about the nature and role of international law as an organiz­ing principle, the most important characteristic of the traditional international legal system is that there was no regular means of judicial enforce­ment. All sovereign states are equal in law, and none can claim the right to adjudicate—in a defin­itive legal, as opposed to political, sense—the actions of another.[8]

Changing this state of affairs has been one of the most important goals of “progressives” and “inter­nationalists” since before the First World War. In particular, throughout the 20th century—and especially after World War II—determined and sustained efforts were made to establish some form of international judicial system under which states would no longer be the ultimate arbiters of their own international legal obligations. These efforts, which can fairly be said to include the League of Nations (and its Permanent Court of International Justice), the United Nations’ International Court of Justice (ICJ), and the International Criminal Court (ICC), have always found favor with the United States at their inception but have always been rejected in the end. (The United States, of course, never joined the League, withdrew from the ICJ’s compulsory jurisdiction in 1986, and “de-signed” the ICC treaty in 2003.)

The reason is simple enough. A genuine system of international law, comparable to domestic legal systems in its reach and authority, would require a universally accepted institution entitled both to adjudicate the conduct of states and, by exten­sion, their individual officials and citizens and to implement its judgments through compulsory process with or without consent of the states concerned. Such a universal authority, however, would be fundamentally at odds with the found­ing principles of the American Republic. It would require the American people to accept that there is, in fact, a legal power that has legitimate author­ity over them but is not accountable to them for its actions.

Pending this revolution in American beliefs and principles, U.S. officials and diplomats should recall two basic points in their approach to interna­tional law:

As an independent sovereign, the United States is fully entitled to interpret international law for itself. The views of international organizations, including the United Nations, other states, and non-governmental organizations (NGOs) may be informative, but they are not legally binding unless, and only to the extent that, the United States agrees to be bound.

Any institution or individual invoking interna­tional law as the measure of U.S. policy choices is only expounding an opinion of what interna­tional law is or should be. That opinion may be well or poorly informed, but it is not and can­not be authoritative. There is no supreme inter­national judicial body with the inherent right to interpret international law for states.

In short, the United States, like all other states, is bound by international law; but, like all other states, it is also entitled to interpret international law for itself. Whether the U.S. or any other state has been reasonable in its interpretation is ulti­mately a political determination.

II. Does the U.S. Constitution Acknowledge International Law?

Advocates of various international norms, real or imagined, are quick to assert that international law is part of American law and therefore binding on the United States government. This is true as far as it goes. There are, however, numerous caveats that must be taken into account in determining the extent to which international law considerations may, or must, inform American policymaking.

At the outset, it is worth noting that this rule is a judge-made doctrine that does not actually appear in the Constitution’s text.[9] The Constitution does, of course, make treaties “the supreme Law of the Land,” although not as a means of empowering the courts to oversee the formulation and execution of United States foreign policy. The entire text of the Suprem­acy Clause makes its purpose clear—the targets were the states and not the federal government:[10]

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

As Justice Joseph Story noted in his 1833 expo­sition of the Constitution:

It is notorious, that treaty stipulations (especially those of the treaty of peace of 1783) were grossly disregarded by the states under the confederation. They were deemed by the states, not as laws, but like requisitions, of mere moral obligation, and dependent upon the good will of the states for their execution.[11]

The Supremacy Clause was designed to ensure that the United States spoke with one voice on the international level and that the states could not choose for themselves which federal treaties to honor and which to ignore.

Supreme law notwithstanding, however, treaties remain subject to the Constitution and to later fed­eral action. Where there is a conflict between the Constitution and a treaty, the Constitution pre­vails.[12] Moreover, treaties can be applied directly by the courts only to the extent that they are “self-executing” (most are not) or have been the subject of implementing legislation.[13] Finally, Congress can modify or eliminate a treaty’s effect, at least as a matter of domestic law, by a later statute.[14] Ameri­can courts are bound to respect the plain meaning of such a law even if treaty partners claim that this would violate U.S. international obligations and the claim is accurate. In this regard, however, it should again be emphasized that such a claim may or may not be correct in any given case, since no other state, group of states, or international institu­tion is entitled—absent specific U.S. consent—to interpret or adjudicate American international law obligations. A difference of opinion over the mean­ing of either a treaty or the requirements of custom does not automatically amount to a violation of international law by any of the parties involved.

In addition, treaties are subject to a number of presidential actions. The President is the “sole organ” of the United States in its external rela­tions.[15] Although a President can “make” a treaty only after obtaining the Senate’s consent (by a two-thirds vote), he can terminate a treaty (in accor­dance with its terms), or abrogate the agreement entirely, on his own authority. Similarly, the Presi­dent can—as a lesser power—suspend American performance under a particular agreement as one means of achieving U.S. policy goals. Of course, all of these actions may be more or less controversial, depending on the circumstances.

In fact, arguments have occasionally been advanced that the President must obtain the con­sent of Congress—or at least the Senate—before fundamentally changing U.S. treaty obligations. However, these claims have not been successful, either with the executive branch or before the courts. The leading case is Goldwater v. Carter,[16] where a group of Senators and members of the House of Representatives sued to prevent President Jimmy Carter’s termination of the Mutual Defense Treaty of 1954 between the United States and the Republic of China (Taiwan). The United States Court of Appeals for the District of Columbia Cir­cuit ruled that the President, as “the constitutional representative of the United States with respect to external affairs,” was within his constitutional authority to terminate this treaty.[17] For its part, the Supreme Court never reached the merits of this question. It vacated the D.C. Circuit’s opinion and ordered the original complaint dismissed—an act strongly suggesting that this and similar questions are not subject to judicial determination at all.[18]

Finally, although international law is generally considered to be part of American law, the United States, like other sovereign nations, can derogate from the accepted rules. And, like other aspects of the nation’s foreign relations, the exercise of this authority falls—at least in the first instance—to the President. The Supreme Court’s ruling in The Paquete Habana is not to the contrary, although claims are sometimes made that it is. That case involved the U.S. Navy’s capture, during the Span­ish–American War, of fishing boats in Cuba’s coastal waters. The Supreme Court was called upon to determine whether these vessels were lawful captures and concluded that they were not. Citing generally accepted rules of international law sug­gesting that coastal fishermen were not to be molested by belligerent forces, the Court ruled that the boats were not lawful “prizes” of war. However, in doing so, it specifically noted that “where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the cus­toms and usages of civilized nations.”[19] The sug­gestion is clear that, had there been a formal decision by the President (or by Congress through appropriate legislation) to ignore the otherwise applicable international rule, the United States courts would have been bound by that decision.

III. How Is International Law “Made?”

International law is made by and through the actions of states. This is true both with respect to customary international law and, since a treaty’s meaning and continued efficacy greatly depend upon how the parties interpret and apply its provi­sions in actual practice, with respect to conventual or treaty law. However, for the sake of clarity, these fundamental aspects of international law will be addressed separately.

Customary International Law. Customary inter­national law grows out of more or less consistent state practice over time. There is no hard and fast rule on how general a practice must be to be con­sidered customary or on how long it must be fol­lowed. However, the “failure of a significant number of important states to adopt a practice can prevent a principle from becoming general customary law though it might became ‘particular customary law’ for the participating states.”[20] Moreover, a rule can­not be imposed on a state that has objected.[21]

In this connection, it also is important to note that what are sometimes called the “sources” of interna­tional law are, in fact, merely evidence of what the law may be. This includes such authorities as (1) the decisions of international courts and arbitral bodies, (2) the decisions of national courts ruling on inter­national law questions, (3) the writings of interna­tional law commentators, and (4) the statements of governments.[22] As the Supreme Court cautioned long ago with respect to the writings of jurists and commentators, “Such works are resorted to by judi­cial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”[23]

Opinio Juris. Opinio juris is a critical element in transforming an international usage or practice into a binding norm of customary international law. Unfortunately, opinio juris can be as elusive as the Philosopher’s Stone. The full term is opinio juris et necessitatis, and it refers to a belief by states that the practice at issue is legally required. In other words, however longstanding and widespread a practice may be, it is binding only if states comply out of a sense of legal obligation. As explained by Ian Brownlie, “The sense of legal obligation, as opposed to motives of courtesy, fairness, or morality,” is “a necessary ingredient” in turning general usage into a legal requirement.[24]

Derogation from International Law Rules. States can derogate from customary international law rules and from treaty obligations.[25] Such deroga­tions are considered to be different from a repu­diation of the rule or treaty and must also be distinguished from differences of opinion over the actual requirements of international law or the proper interpretation of a treaty. A genuine derogation involves one or more states acknowl­edging the force and effect of a particular rule or provision but nevertheless departing from it in limited circumstances. As such, openly admitted derogation is relatively rare. Most often, deroga­tions involve states agreeing (expressly or by implication) to depart from a general rule in their own dealings with one another. These states gen­erally are not considered to have violated inter­national law.

A state can also choose to derogate from an other­wise applicable requirement on its own account. Depending on the rule in issue, however, it will risk prompting a negative response from its treaty part­ners or from the community of nations at large. Whether such a state can be said to have violated international law by its derogation, however, is almost always debatable. This is a function of the manner in which international law is made—based on the actual practice of states. Determining whether a particular state has violated its interna­tional obligations or has merely set out to promote and establish a new and different rule (or treaty interpretation) that, in its view, may be superior requires augurs of exceptional ability. As a result, and as a practical matter, the question is very much a political one—ultimately resolved by whether or not other states follow the new rule.

Jus Cogens. There are, of course, certain rules of international law from which, it is said, no deroga­tion is permissible. These are generally referred to as “jus cogens” or “peremptory norms of interna­tional law.” The application of either term to a par­ticular rule or practice should sound alarm bells for any American diplomat, since the benefits of achieving jus cogens status for a preferred rule are substantial. In fact, the number of international norms that can honestly be characterized as jus cogens—based on long and consistent state prac­tice—is small. Thus, the impermissibility of the oceanic slave trade is jus cogens not merely because it has been universally condemned, but also because the responsible maritime nations have, at least since the mid-19th century, acted seriously and effectively to suppress the activity under a gen­erally acknowledged claim of right.

Moreover, like other aspects of international law, jus cogens is subject to the development of new norms. As one important commentator has explained, “They are rules of customary law which cannot be set aside by treaty or acquiescence but only by the formulation of a subsequent customary rule of contrary effect.”[26] In short, the doctrine of jus cogens is subject to being formed and reformed by the actual practice of states. As a result, a princi­ple that is claimed to be jus cogens but is widely ignored is probably not a peremptory norm of international law—however important the pol­icy it may support or detestable the practice it pur­ports to forbid.

Treaties and Other International Agreements. On the international level, any agreement between or among states can properly be described as a treaty. These instruments can be bilateral or multi­lateral and create binding legal obligations for the states that become parties to any particular agree­ment. Under international law, states are required to comply with their treaty obligations. The princi­ple pacta sunt servanda (“keep your agreements”) is often identified as jus cogens, and with some justice. All things being equal, over time, states have recog­nized the importance of compliance with their treaty obligations, and—in the absence of special circumstances—most at least attempt to do so. The unilateral abrogation of a treaty without sufficient legal cause is considered to be a violation of inter­national law. Most recent treaties, however, contain a termination or withdrawal clause permitting a party to end its obligations by meeting a notice requirement.

Bilateral treaties are, of course, agreements between two states generally governing aspects of their relationship to one another. The inter­pretation and application of such treaties is a mat­ter for the parties alone, although the agreement may well provide for a type of arbitration or adju­dication in an international body—such as the ICJ—in case of dispute.

Multilateral treaties involve an agreement between more than two states, and these types of agree­ments have significantly increased in number and importance over the past century. They include such basic instruments as the United Nations Char­ter, the North Atlantic Treaty, and the Geneva Con­ventions, as well as a whole array of critical agreements governing all aspects of transnational commerce and relations. Examples of such agree­ments include the Vienna Convention on Consular Relations, the Convention for the Unification of Certain Rules Relating to International Transporta­tion by Air (the “Warsaw Convention”), the agree­ments establishing the World Trade Organization, and the Berne Conventions for the Protection of Literary and Artistic Works.

Multilateral treaties usually establish a specific number of ratifications necessary before the agree­ment will go into effect among the parties (the Rome Statute of the International Criminal Court, for example, required 60 countries to ratify before it went into effect) and are often—although not always—open to accession by states that may wish to become parties at a later time. Like more recent bilateral treaties, multilateral treaties often provide for a formal mechanism—submission to the ICJ—for resolution of disagreements over the treaty’s interpretation. States may or may not accept these provisions upon ratification. It is important to note, however, that there is no general principle of international law suggesting that an interpreta­tion favored by a significant number of state parties to an agreement, even if this involves a substantial majority or near unanimity, must be accepted by all parties.

Treaties Purporting to Codify International Law. An increasingly important “source” of interna­tional law is treaties that purport to “codify” cus­tomary international law. These instruments must be treated with extreme caution, since they are very often much less than they appear. The codification of international custom is, in any case, a speculative business. States are far more likely to agree on gen­eral principles than on detailed provisions. More­over, and more to the point, states are often much more willing to state a rule as internationally bind­ing than they are to apply it in practice.

Nevertheless, in certain areas, serious attempts have been made to reach agreement not merely on principles, but on the details. Prime examples here are the Vienna Convention on the Law of Treaties, the Law of the Sea Treaty, and the 1977 Protocol I Additional to the Geneva Conventions of August 12, 1949. All of these agreements indisputably include some provisions that are, or can legiti­mately be argued to be, customary international law. Significantly, however, the United States has not ratified any of these agreements, and it is not bound by them—except to the extent that their provisions restate binding customary norms.

In assessing the effect of these and similar docu­ments on the United States, it is critical to keep in mind that the mere fact that some provisions of a treaty restate binding norms of customary interna­tional law does not mean that the entire document enjoys that status. Each provision must be judged independently to determine whether there is suffi­cient state practice (that is, actual observance based on a sense of legal obligation and in relevant cir­cumstances) to justify its identification as binding custom. Thus, although Geneva Protocol I Addi­tional clearly restates certain customary rules, such as the rule against deliberately targeting civilians, it also includes many provisions that represent efforts to “move” the international law of armed conflict in a particular direction—specifically toward “privi­leging” guerrilla or irregular combatants. The United States rejected this treaty on that very account and cannot now be held to these provi­sions merely because other portions of Protocol I are binding custom.

Executive Agreements. Although all agreements between or among states can accurately be labeled “treaties” for international purposes, this is not the case with respect to American constitutional law. The President can make treaties for the United States only with the Senate’s consent. However, he can also enter certain “executive agreements,” which bind the United States internationally and also have the force and effect of law on the domestic level.[27] The full extent of the President’s authority in this area is unclear, although executive agreements have generally been “of a routine character.”[28]

Pre-ratification Obligations: Article 18 of the Vienna Convention on the Law of Treaties. One of the more vexing issues arises because of the prac­tice, engaged in by both Democrat and Republican Presidents, of signing international agreements that have little or no chance of approval by the Senate and therefore will never be ratified by the United States. There are many reasons for this practice—it may appear prudent at the time to exercise “leader­ship” on a particular issue, or it may be an effort to drive international law in the direction an Admin­istration favors. Regrettably, this practice often leads to claims that the United States is bound by a treaty that it has not ratified, at least to the extent that it cannot take action to defeat the treaty’s “object and purpose.”

This rule is drawn from Article 18 of the Vienna Convention on the Law of Treaties, which the United States has signed but has not ratified. Although it is often stated that the Vienna Conven­tion “is largely a restatement of customary rules,”[29] emphasis must be placed in the word “largely.” Arti­cle 18 is, in fact, a rule characteristic of civil law legal systems.[30] Whether it can be applied to com­mon law countries without express consent is debatable. Moreover, its application by American courts would raise significant constitutional issues, at least in any instance where the President’s own authority was insufficient to bind the United States to a particular obligation, since treaty obligations cannot be undertaken without the Senate’s consent.

In any case, in construing Article 18, it is impor­tant to note that the obligation it imposes is emphatically not to comply with the terms of a treaty before the instrument is ratified. Rather, it requires only that a signatory “refrain from acts which would defeat the object and purpose of a treaty”—suggesting that only actions deliberately calculated to undermine a state’s ability eventually to comply, including and especially any uniquely irreversible action,[31] are forbidden. Nevertheless, the potential application of Article 18 must always be considered and is one very good reason why any responsible President should not sign agreements he does not expect to be able to ratify.

IV. How Is International Law Interpreted and Enforced?

As states are the ultimate authors of international law, they also are the arbiters of its meaning. As suggested above, each nation, as an independent sovereign, has an equal right to interpret interna­tional law in general and its own international legal obligations in particular. The interpretation of one state—or group of states—is no better or worse than the interpretation of others. This does not, of course, mean that states can interpret international norms to a point where any actual obligation is illu­sory. They must act, especially in construing their treaty obligations, in good faith.[32] Moreover, all states must understand and accept that their inter­pretation of international legal requirements may carry consequences. As a legal matter, however, there is no state, group of states, international orga­nization, or judicial authority with the paramount right—paraphrasing Chief Justice John Marshall’s description of the federal judiciary’s power in Mar­bury v. Madison—to say what the law is. There is no international Supreme Court.

International Judicial Institutions. That said, there are numerous international judicial institu­tions that, depending on the circumstances, may well be entitled to issue binding judgments against states. The most important of these, of course, is the ICJ. The authority of these courts, however, is based on the consent of the states concerned—con­sent that can be withdrawn in appropriate circum­stances. Thus, for example, the United States withdrew from the ICJ’s “compulsory” jurisdiction in 1986. As a result, it is subject to the ICJ’s rulings only to the extent that some independent treaty provision vests that court with the power to adju­dicate a dispute between the United States and one of its treaty partners.

In addition, with the exception of the ICC and other, ad hoc, international criminal tribunals (which can issue orders directed at individuals), international courts have no direct means of enforcing their judgments. As a general rule, they must depend on the voluntary compliance of the relevant states or seek the assistance of appropriate political institutions. The extent to which duly entered international judgments (where jurisdic­tion was appropriate) may bind the courts of the United States remains an open question—even though the issue was before the Supreme Court, in the case of Medellin v. Dretke, in 2005.[33]

This case involved the Vienna Convention on Consular Relations, a treaty to which the United States is a party. Among other things, this treaty requires that foreign nationals be permitted certain access to their country’s consular authorities in case of arrest in the territory of another state party. A number of Mexican citizens have been convicted of capital crimes in the United States without having been granted this access—largely because it was unclear to local authorities either that the individ­uals were foreign citizens or that they wished the assistance of Mexican authorities. In any case, the Vienna Consular Convention does vest the ICJ with the authority to resolve disputes between parties, and pursuant to this provision, Mexico successfully sued the United States in that court. The ICJ issued its decision in 2004, determining that the United States had violated the treaty and ordering it to pro­vide some means of reviewing and reconsidering the convictions of the effected individuals.[34]

The Supreme Court accepted certiorari to deter­mine the extent to which this decision actually bound the federal and state courts and whether the ICJ’s interpretation of the Vienna Consular Con­vention should, in any case, be given effect as a matter of judicial comity. In the meantime, how­ever, President George W. Bush issued a memoran­dum indicating that the United States would comply with the ICJ’s order by having the state courts “‘give effect to the [ICJ] decision in accor­dance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.’”[35] In light of this determination by the President, the Supreme Court dismissed the case without deciding whether U.S. courts must imple­ment properly entered ICJ decisions.

International Political Institutions. Although states are entitled to interpret their own interna­tional obligations, all members of the United Nations have agreed to abide by certain decisions of the United Nations Security Council—at least when that body acts in accordance with its power under Chapter VII of the U.N. Charter. Chapter VII vests the Security Council with the authority to “determine the existence of any threat to the peace” and to “decide what measures shall be taken.”[36] These measures can include diplomatic or eco­nomic sanctions, up to and including the use of force. U.N. member states are required to “join in affording mutual assistance in carrying out the measures decided upon by the Security Council.”[37]

Of course, the Security Council is a political, not a judicial, body, and it is far from clear whether— even exercising its Chapter VII authority—it can articulate or establish a member state’s legal obliga­tions. As a practical matter, however, the Security Council’s political decisions may well be sufficient to impose a particular result on one or more states regardless of the legal principles at issue—assum­ing that all of the Council’s permanent, veto-wield­ing members determine to act with a sufficient level of force. Moreover, U.N. member states do have a legal obligation to comply with properly entered Security Council Chapter VII resolutions as a matter of treaty.

Other Means of Enforcing International Law. In addition to international judicial and political institutions—both relatively recent innovations— the more traditional methods of enforcing interna­tional norms include diplomacy and force. It is clearly the case that, over time, most disputes over the meaning and application of international law have been resolved through diplomatic means. This is preferable to other means, since it generally preserves the dignity and sovereignty of the rele­vant parties. Force, of course, has always been the ultimate sanction, as it remains today. In the past, states have often considered a violation of interna­tional legal obligations to be a casus belli, and state practice suggests that this remains true today— even in light of the U.N. Charter’s admonition that disputes be settled by peaceful means.[38] (Although practice over the past 50 years would also suggest that, apart from actions taken in self-defense, states are expected to seek U.N. assistance in resolving disputes before resorting to armed force on their own account. At a minimum, this certainly appears to be the Charter’s fair import.)

V. Who Are the “Subjects” of International Law?

Once, and not so very long ago, this was the first and most easily answered question regarding inter­national law: International law applied to states. In the past 50 years, however, various forms of interna­tional law have been applied to international organi­zations and, most significantly, to individuals. It is out of the application of international law norms to individuals, both in terms of state officials and in terms of ordinary citizens, that many of the most contentious current international law controversies have grown. The application of international law to individuals often, if not always, undercuts the sover­eignty of states and lacks democratic legitimacy.

The Traditional Rule. Traditionally, states (or, more appropriately, sovereigns) were the only “sub­jects” of international law. As noted by Vattel, “Every nation that governs itself…without any dependence on a foreign power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are moral persons who live together in a natural society, under the law of nations.”[39] Individuals had few rights or obliga­tions under international law, which addressed itself to their conduct only in certain very special­ized areas, such as the law of piracy. Moreover, even here, international law merely established the rights of states to prescribe rules applicable to such individuals, who were generally considered to be stateless. Domestic law governed the trial and pun­ishment of any actual offenses. This began to change meaningfully only in the 20th century, mostly after the Second World War.

International Human Rights and International Humanitarian Law. Today, international law does provide certain rights to individuals—rights that states are required to honor and vindicate. Some of these rights are based on custom, although, by far, treaties are the most important source of these rights. The United States is bound by some of these agreements, such as the International Covenant on Civil and Political Rights (which it has ratified) and not by others, such as the U.N. Convention on the Rights of the Child (which it has not ratified).

As in all other areas, claims that the United States is bound by agreements it has not ratified must be treated with great skepticism. Where a state has not ratified a convention, involving human rights or otherwise, it can be bound to its provisions only if they independently represent binding norms of customary international law. Each provision or requirement of a treaty must meet this test sepa­rately, on its own merit. The inclusion of some binding norms in an agreement does not—and cannot—vest the entire document with that status.

In addition, the simple ratification of a treaty by a significant number of countries does not trans­form its provisions into customary international law. There is no international legislative authority. This is a particularly acute problem in the human rights area, since many states, over time, have signed and ratified human rights treaties that they have not implemented (and probably had no inten­tion of implementing) with respect to their own populations. For example, Saudi Arabia, Cuba, Pakistan, Libya, and North Korea are all parties to the Convention on the Elimination of All Forms of Discrimination Against Women, but all persistently violate the basic human rights of women guaran­teed under that treaty.American policymakers and diplomatic personnel should be especially wary of claims of legality or illegality based on conventions that have been implemented by few, if any, of the parties in actual practice.

On a more technical level, there is a generally rec­ognized distinction between international humani­tarian law, which properly refers to the customs and treaties governing humanitarian issues in the context of an armed conflict, and human rights law, which is much broader and intrusive into the relationship of a state to its citizens. In this connection, it is important to recall that the U.N.’s 1948 Universal Declaration of Human Rights is a statement of principle and aspi­ration, not a codification or statement of interna­tional law. This was made clear by Eleanor Roosevelt (one of the document’s chief architects) in 1948 when she stated that the Universal Declaration is “not a treaty” and “does not purport to be a state­ment of law or of legal obligations.”[40]

Therefore, the United States does not, as is sometimes suggested, have to provide for or vin­dicate all of the “rights” identified in the Universal Declaration, including and especially the “rights” to social security, work, leisure, or an “adequate” standard of living. These claims, however, do serve to highlight one of the important problems with the international human rights law area. There are, throughout the world, fundamentally differing conceptions of the nature of a “right” as opposed to a social program provided by a gov­ernment as a matter of policy. Under American law, “right” is normally used in referring to some individual entitlement or benefit that the govern­ment cannot interfere with, save in extraordinary circumstances, and that is legally binding and enforceable in the courts—such as the right to due process of law. Moreover, there are also very sub­stantial disagreements over the nature and breadth of the rights that should be guaranteed and protected by law. Thus, for example, under the Constitution’s First Amendment, Americans enjoy far broader rights to freedom of speech, press, and religion than do their counterparts in many other states, including the populations of other democracies.

Judicial Enforcement and the Alien Tort Claims Act. In the United States, international law “rights” are generally not enforceable through pri­vate lawsuits unless Congress has provided for such actions. However, there are certain circum­stances when U.S. courts will enforce international law in a private suit, most notably under the Alien Tort Claims Act (ATCA). This law, originally enacted as part of the Judiciary Act of 1789, per­mits suits in federal court “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[41] Over the next 170 years or so, the ATCA supported federal jurisdic­tion in only one case. Beginning in the 1980s, how­ever, there was a rush of litigation attempting to use the ATCA as a means of enforcing various interna­tional law norms in U.S. courts.

Nevertheless, the ATCA was and is a very limited jurisdictional grant. First and foremost, it contains no waiver of sovereign immunity and so cannot support a suit against United States government officials, and the Federal Tort Claims Act specifi­cally does not waive immunity for claims arising in a foreign country. Second, the ATCA can support actions only for international “torts” that are uni­versally recognized and established as such, and this is a very high bar to clear. The Supreme Court said this in Sosa v. Alvarez-Machain.[42] That case involved a claim, for arbitrary arrest and abduction, by a Mexican citizen who had been seized and brought into the United States on charges that he had assisted in the torture and murder of an Amer­ican Drug Enforcement Administration agent. The Court rejected Alvarez-Machain’s claim that his seizure was in violation of international law and therefore cognizable under the ATCA.

As Justice Souter wrote for the Court, “We have no congressional mandate to seek out and define new and debatable violations of the law of nations.”[43] Only those violations recognized in 1789, involving the mistreatment of ambassadors or acts of piracy, are encompassed by the ATCA, along with those modern norms “accepted by the civilized world and defined with a specificity com­parable to the features of the 18th-century para­digms we have recognized.”[44] Alvarez-Machain’s claim for arbitrary arrest did not, the Court con­cluded, meet this exacting standard.

International Criminal Law. Probably more claims have been made for an “international criminal law,” with less basis in fact, than have been made for any other single aspect of international law. Although the idea of internationally recognized criminal violations is ancient—at least with respect to piracy—the application of such norms to individ­uals acting on behalf of their state dates almost entirely to the post–World War II period. Efforts to prosecute and punish government officials for alleged violations of international criminal norms are increasingly seen, both by certain governments and by activists, as a desirable means of controlling policy on the international and domestic levels.

The Nuremberg Trials. Advocates of international criminal law invariably identify the war crimes trials, especially the proceedings of the International Mili­tary Tribunal (IMT) sitting in Nuremberg, Germany, as support for the “international community’s” right to investigate, prosecute, and punish individual state officials who have arguably violated applicable inter­national norms. In fact, as a matter of law, the post-war trials—both in Europe and in the Far East— were not justified by some inchoate international right to punish individuals for bad actions, but upon the unconditional surrenders of the Axis Powers. As the IMT itself explained:

The jurisdiction of the Tribunal is defined in the Agreement and Charter…[and] [t]he making of the Charter was the exercise of the sovereign legislative power by the coun­tries to which the German Reich uncondi­tionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world.[45]

In the absence of such a military conquest, the legal right of one state or group of states to crimi­nally punish the leadership of a third is highly questionable.

The U.N. Ad Hoc Tribunals. In 1993, partially as a means of doing something—anything—about the atrocities then taking place in the former Yugosla­via, the U.N. Security Council established the International Criminal Tribunal for the Former Yugoslavia. A year later, for similar reasons, the International Criminal Tribunal for Rwanda was created. The legality of these courts is certainly sub­ject to challenge, since the Security Council does not itself have judicial authority. Nevertheless, as a practical matter, both courts have tried and sen­tenced a number of individual former state officials for offenses against the laws of war, crimes against humanity, and genocide. The United States has supported the efforts of both institutions.

The International Criminal Court. The United States has not supported the permanent ICC, established in 2002 pursuant to the 1998 Rome Statute of the International Criminal Court. As will be discussed more fully below, the ICC is principally a project of the European Union and claims jurisdiction over certain offenses committed anywhere within the territory of an ICC member state, whether or not the accused is an official or a citizen of one of these states. Because the Rome Statute is a treaty, its pro­visions cannot be imposed on the nationals of non-party countries, and this is one of the primary American objections to the court. The United States also has objected to the Rome Statute’s lack of any meaningful check on the ICC prosecutor and its potential both for politically motivated prosecutions and to undermine the unique role of the U.N. Security Council.[46]

In fact, the most problematic aspect of the ICC is its ability to interpret and apply international law without regard to the views or consent of the state concerned and to enforce its opinion through criminal prosecutions against individual govern­ment officials. No international institution has ever claimed, or been permitted, such power—author­ity that is fundamentally inconsistent with the prin­ciples of sovereignty upon which the current international system is based.

International Law Immunities. The ICC also is particularly troubling because it purports to super­sede the long-recognized immunity of individual government officials from legal action, either by the courts of another state or by international courts. These immunities developed from the basic rule that every sovereign was equal, and no sovereign, therefore, could claim judicial authority over any other sovereign. Today, especially with sovereign states often engaged in commercial or otherwise “private” activities, sovereign immunity is viewed by U.S. courts as a prudential matter and a question of comity. American sovereign immunity jurispru­dence dates to Chief Justice John Marshall’s opinion in The Schooner Exchange v. M’Faddon.[47] There, the Court ruled that the U.S. has unlimited jurisdiction over persons and things within its territory but that, like other sovereigns, as a matter of comity, “members of the international community had implicitly agreed to waive the exercise of jurisdic­tion over other sovereigns in certain classes of cases, such as those involving foreign ministers or the person of the sovereign.”[48]

International law, however, has long recognized certain immunities from judicial process for indi­viduals, including heads of state, ministers of for­eign affairs, and similar officials—both as a matter of principle and as a matter of practical necessity. Claims by one state to judge the official actions of another state’s officials, especially when those actions took place within that state’s own territory, undercut the very principle of territorial sover­eignty explained by Justice Marshall in The Schoo­ner Exchange:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.[49]

Significantly, although many claims have been made—particularly since the Nuremberg trials— that these official immunities do not apply to “international crimes,” state practice suggests that they continue to do so. This was, in fact, the con­clusion of the ICJ in a 2002 case, Democratic Repub­lic of the Congo v. Belgium.[50] In that case, Belgium attempted to prosecute (on a “universal jurisdic­tion” theory) the Congolese foreign minister for alleged offenses within The Congo. That state opposed the prosecution and did not waive the official’s immunities. The ICJ noted that there was simply insufficient state practice suggesting that official immunity did not apply in these circum­stances. In its opinion, the ICJ also usefully distin­guished between the concept of immunity to judicial process, which The Congo’s foreign minis­ter enjoyed, and the right to violate the law, which he did not. It was not a question of his having any right to engage in criminal activity on account of his office, but that the courts of Belgium—absent a waiver of immunity by the Congolese govern­ment—could not adjudicate the case.

The ICJ’s decision in Congo v. Belgium is impor­tant on a number of levels. First and foremost, however, it shows how necessary it always is to measure the received wisdom in international law against the actual practice of states. Before this decision, few would have argued that—assuming proper jurisdiction—governmental immunity would have prevented an official’s prosecution for alleged offenses, such as the war crimes and crimes against humanity at issue in that case. When the ICJ actually set about examining the basis of this supposed rule in state practice, that basis was found not to exist.

Current Controversies

I. The Role of the United Nations in International Law

The proper role of the United Nations in the ordering of international affairs and, indeed, the nature of that institution itself continue to be a major subject of controversy—especially between the United States and Europe. Members of the Euro­pean Union increasingly view the United Nations as the primary forum in which international prob­lems must be addressed. The United States, by con­trast, continues to support the United Nations, and to use its institutions when and where this seems sensible and appropriate, but does not treat the U.N. as a uniquely legitimizing body. This has cer­tainly been the case under President George W. Bush. It was also the case under President Bill Clinton—who determined to intervene in Kosovo using NATO rather than the U.N.

The U.N. Charter as an International “Consti­tution.” There is a widely held opinion (at least in certain international circles) that the United Nations Charter is more than a treaty. Because of the Charter’s wide acceptance (nearly every inde­pendent state is now a member of the United Nations General Assembly) and important pur­poses, arguments have been made that it is more akin to an international constitution. This is not, and cannot be, the U.S. view, since the Senate approved the Charter as a treaty, subject to all of the normal rules and understandings that accompany treaty-making. In addition, despite the fact that the Charter has been ratified by almost all of the world’s nations, there is little state practice (as opposed to rhetoric) supporting a transfer of sover­eignty to the U.N. Indeed, the Charter itself, which makes clear that the “Organization is based on the principle of the sovereign equality of all its Mem­bers,” belies such claims.[51]

The Use of Force. A number of European coun­tries and the European Union itself openly take the view that only the U.N. Security Council can authorize the use of military force between states— with the single exception of repelling an ongoing invasion of a state’s territory. This, of course, is not the American view. At a minimum, the United States has taken a much broader approach to inter­preting Article 51 of the U.N. Charter, which states:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.[52]

Moreover, a careful reading of the Charter also suggests that the use of military force is specifically forbidden only in those instances where the pur­pose is to compromise the territorial integrity or political independence of a state.[53]

II. The International Criminal Court

The establishment of a permanent International Criminal Court is one of the most important and controversial developments of the past 60 years, ever since the founding of the United Nations. Although there are numerous and fundamental prob­lems—constitutional, philosophical, and practical— with the ICC from the American perspective, the most important objection is that this institution is entitled under its founding document to interpret the international law obligations of its member states authoritatively and to enforce its opinion through the prosecution and punishment of indi­viduals. In addition, in violation of long-accepted international law norms, the court claims jurisdic­tion over the citizens of non-party states in certain circumstances.

The U.S. Rejection of the Rome Statute. In 1998, the U.S. refused to sign the Rome Statute because—a largely European coalition of powers having rejected the Clinton Administration’s efforts to link the ICC’s jurisdiction to a resolution by the U.N. Security Council—there was no effective check on the court’s power. This was especially so with respect to the ICC prosecutor. At the close of his term in office, however, President Clinton did sign the Rome Statute, ostensibly so U.S. repre­sentatives could continue to participate in the negotiations framing the ICC’s rules of procedure and definitions of criminal offenses. However, at that time, President Clinton affirmatively recom­mended to his successor that the Rome Statute not be submitted to the Senate for its consider­ation because of that document’s very fundamental flaws.[54] In 2002, shortly before the Rome Statute came into force (because of the 60th ratification), President George W. Bush withdrew the United States’ signature from the instrument, making clear that the United States would not become an ICC state party.

The European Union’s ICC Policy. The Euro­pean Union has made the achievement of “univer­sality” for the ICC a major component of its collective foreign policy. This is hardly surprising, since the EU dominates the ICC. All EU member states must be ICC members, as must any state aspiring to become an EU member. As a result, the EU is the largest (indeed, the only) voting bloc in the ICC’s Assembly of State Parties, controlling a full quarter of the votes in that body (25 of 100). Of the ICC’s 18 judges, 11 hail from EU states. Less understandable or acceptable is the EU’s insistence that American efforts to protect U.S. citizens against the ICC’s jurisdictional claims amount to demands for “impunity” under international law. EU officials know better.

Article 98 Agreements. Since the Rome Statute went into effect in 2002, the United States has sought and obtained dozens of agreements from ICC state parties that they will not hand Americans over to the court. These “Article 98” agreements, called after Article 98 of the Rome Statute, which, in fact, contemplates just such arrangements, were made necessary by the ICC’s insistence that its jurisdiction could be applied to American citizens (in appropriate cases) regardless of whether the United States ratified the Rome Statute. Both the Clinton and Bush Administrations have made clear that this claim itself violates international law. Moreover, in 2002, Congress enacted the American Servicemembers Protection Act,[55] which autho­rizes the President to use “all means necessary” to free American servicemembers, officials, and others working on behalf of the United States who are held by ICC authorities.

Neither Article 98 Agreements nor other U.S. efforts to ensure that Americans will not be sub­jected to the ICC’s power are directed at seeking “impunity” from international law for the United States or its citizens. The U.S. continues to acknowledge the binding effect of international law, as it has always done where it has recognized relevant and binding international norms, includ­ing applicable criminal norms. With respect to the ICC, it has simply rejected a new and revolutionary enforcement mechanism of dubious legal and prac­tical merit. Moreover, the ICC is a treaty-based organization and can exercise no lawful authority over the United States or its citizens unless and until the Rome Statute has been ratified by the United States. Those who claim that, by insisting on its rights as an independent sovereign to protect itself and its people from the ICC’s pretensions, the United States is seeking “impunity” have mistaken their own rhetoric for reality.

III. The War on Terrorism

At this time, the most confrontational interna­tional law differences between the United States and Europe involve the war on terrorism. By and large, Europe (at least the states of the EU) does not accept that there is a legally cognizable, ongoing armed conflict between the United States and al-Qaeda and its allies. The vast bulk of European opinion, both official and unofficial, views al-Qaeda as a law enforcement issue and (sub silencio) the American reaction to the September 11, 2001, attacks to have been disproportionate. As a result, many of the measures taken by the United States since September 11 are considered illegitimate, if not outright illegal, by much of Europe.

GuantanamoBay. This is especially true of the U.S. detention facilities at Guantanamo Bay, Cuba, which have become a symbol in Europe for alleged U.S. overreaching. These facilities were established to detain the most dangerous individuals captured by U.S. and allied forces in Afghanistan. The United States has classified these prisoners as “unlawful” or “unprivileged” enemy combatants who are not entitled to the rights and privileges of prisoners of war under the Geneva Conventions but who may be held without criminal trial until hostilities are concluded. This classification has a long history in the laws and customs of war (describing individu­als who fail to meet certain basic requirements, including a proper command structure, wearing uniforms, bearing arms openly, and eschewing direct attacks on civilians) and is fully recognized by the United States Supreme Court.[56] Nothing in the Court’s 2006 Hamdan v. Rumsfeld decision, which invalidated the rules established for military commission trials, changed this.

Most European states, however, have signed and ratified Protocol I Additional, an addendum to the 1949 Geneva Conventions. This treaty was partic­ularly promoted by the International Committee of the Red Cross, and its provisions attempt to regu­larize the status of unlawful combatants, especially the guerrilla and irregular fighters who comprised so many of the “national liberation movements” in the post–World War II period. It was, in fact, for this very reason that the United States rejected Protocol I. It is not a party to that instrument and is not bound by Protocol I’s requirements—except to the extent that they represent binding customary norms.

Opponents of American policy in the war on ter­rorism commonly claim that, in fact, Protocol I does constitute a binding statement of customary law and argue incorrectly that the United States has recognized as much. To support this point, propo­nents of this claim generally cite the 1987 remarks of Michael Matheson, then serving as Deputy Legal Adviser, Department of State. A careful examina­tion of Mr. Matheson’s remarks, however, reveals that he did not suggest that Protocol I constituted a restatement of customary international law, but merely that a number of its provisions might have that status.[57] In this connection, he noted that, because of the difficulty in determining which rules enjoy sufficient “acceptance and observation” to be considered customary norms, “we have not attempted to reach an agreement on which rules are presently customary law, but instead have focused on which principles are in our common interests and therefore should be observed and in due course recognized as customary law.” This is, of course, a critical distinction between principles and rules in assessing what are the actual legal obli­gations of the United States. The U.S. has not accepted either that the category of “unlawful enemy combatant” has been abolished or that such individuals must be treated as Geneva POWs or civilian criminal defendants.

The Use of Stressful Interrogation Methods. The EU governments, along with a large portion of European public opinion, reject the use of stressful interrogation methods by the United States, claim­ing that these “amount to torture.” Whether stress­ful interrogation methods are appropriate as a means of obtaining intelligence from captured enemy combatants is a complex question of morality and expedience. As a legal matter, however, stressful interrogation methods are not inherently torture. In the relevant treaties (and U.S. federal statutes), torture is narrowly defined to encompass only the infliction of severe pain and suffering. Thus, the stress methods, such as isolation, sleep interrup­tion, and standing, authorized by the United States for use on captured al-Qaeda and Taliban members are not “torture” unless taken to a degree extreme enough to constitute severe pain and suffering. Signifi­cantly, the European Court of Human Rights itself reached this conclusion in Ireland v. United Kingdom (1978), a decision construing very similar stan­dards under EU human rights conventions.[58]

In fact, Ireland v. United Kingdom involved Britain’s use of five stressful interrogation techniques—hood­ing, wall standing, subjection to noise, sleep depri­vation, and reduced diet—in tandem against Irish Republican Army (IRA) members. The court ruled that these methods, even when used together, did not amount to torture. It did conclude, however, that when used together, these methods constituted cruel and inhuman treatment. This decision is, of course, not binding on the United States, but it does suggest that European claims that the United States has engaged in torture are ill-founded and that the U.S. could meet international standards simply by ensuring that the stressful interrogation methods employed at Guantanamo and elsewhere are not uti­lized together as done by Britain against the IRA. In any case, generic claims that “coercive” interrogation methods inherently amount to torture and that they are banned by international law are incorrect.

Other Controversial Policies. There are, of course, a number of other American policies in the war on terrorism that have been criticized or openly denounced in Europe. These include the claimed existence of “secret” U.S. detention facilities in Cen­tral and/or Eastern European countries, as well as the practice of “rendition”—transferring captured terrorists to other (usually their home) countries. There have obviously been abuses committed by Americans during the war on terrorism—although the U.S. record in this regard compares very favor­ably with previous conflicts and, especially, with that of other countries. In defending the American legal position, however, the first question must always be: Is the United States actually subject to the norm it has allegedly violated? The second question is whether the U.S. interpretation of applicable norms is simply different from the prevailing view in Europe and/or elsewhere. As explained above, the United States is an independent sovereign with the right and obligation to interpret international law for itself. It does not have to accept the views of any other state or group of states, save in those circum­stances where it has consented to do so. That is the essence of sovereignty.

Universal Jurisdiction. One means of avoiding that sovereignty, of course, would be to punish individual American officials in the courts of other states (which may take a different view of the appli­cable legal norms and their meaning) on a theory of “universal jurisdiction.” As a principle of judicial authority, universal jurisdiction has a long history. Before the 20th century, however, it was limited to offenses committed by non-state actors beyond the territorial limits of any state. Thus, all states were said to have the “universal” right to prescribe acts of piracy on the high seas, including the trans-oceanic slave trade. Even in this area, however, the right to prescribe did not automatically translate into the right to try and punish without some additional jurisdictional basis.[59]

Since the end of World War II, however, claims have been made for a universal jurisdiction over offenses such as war crimes, crimes against human­ity, genocide, and crimes against peace. These claims have been based largely on the Nuremberg trials. In fact, as explained above, the International Military Tribunal never claimed to act pursuant to “univer­sal” jurisdiction or even under international law or on behalf of the international community. Its authority was founded on the right of the victori­ous Allies to legislate for a conquered Germany. Nevertheless, increasingly extravagant claims have been made for universal jurisdiction, and in the 1990s, some European states actually enacted laws purporting to vest their courts with the power to try and punish universal jurisdiction offenses. The most notable was Belgium. The Belgian universal jurisdiction law was used to initiate proceedings against various Western leaders, including Israel’s Ariel Sharon and U.S. Secretary of State Colin Pow­ell, Vice President Richard Cheney, and General Tommy Franks. Belgium repealed the law after the United States made plain that NATO Headquarters could not remain in a country (in Brussels) where U.S. officials might face such judicial harassment.

In fact, there is little state practice, involving both a right to prescribe and punish “international” offenses, supporting universal jurisdiction. There are very few instances in which a country has attempted to punish an individual, let alone a state official, for offenses that did not take place on its own territory or against its own citizens. Moreover, and more to the point, there are even fewer examples—if any at all—in which a state whose citizen or official has been targeted for such a prosecution accepted the assertion of this judicial power based on a belief that it was legally required to do so because of some “universal” right to try and punish certain crimes. In short, universal jurisdiction is a theory of inter­national law that has very little basis in reality.

IV. International Law as a Tool of Statecraft, and “Lawfare”

The lack of actual state practice establishing uni­versal jurisdiction is hardly surprising. International law has always been used as a tool of statecraft, and the “legal” right to prosecute and punish another state’s officials would be an especially dangerous addition to the toolbox. (This is, of course, exactly what the ICC states parties have contrived for them­selves—although the authority is vested in a non-state institution—and only time will reveal whether they have made a mistake.) A state’s view of interna­tional law generally, and of particular norms, often changes over time as its role in the world changes.

In particular, when assessing the requirements of international law, states usually do so in light of their national interests. For example, during the 16th and 17th centuries, the British often argued for a broad “freedom of the seas” principle as against the Spanish, whose maritime colonial and commercial interests were far greater and more developed than Britain’s. By the 18th and 19th cen­turies, however, the British view about a number of key maritime law issues had changed dramatically because Britain had emerged as the leading— indeed, overwhelming—naval power. In consider­ing claims by other states that the United States is violating international law, one eye should always remain firmly on this reality. (By the same token, in determining whether to use international law as a justification for a preferred U.S. policy, it should always be kept in mind that the hallmark of law, including international law, is neutral application. Supporting a particular view of international law in a given circumstance may, in short, prove to be a double-edged sword in another circumstance.)

This is especially true in light of the development of “lawfare.” This term, first used in this connection by Brigadier General Charles A. Dunlap, Jr., U.S.A.F., means “the strategy of using, or misusing, law as a substitute for traditional military means to achieve an operational objective.”[60] A practical, textbook example of this phenomenon is the al-Qaeda training manual (seized in Manchester, England, in 2001), which states that captured “brothers” should claim to have been tortured while in custody. There is little doubt that the United States is, at least currently, the primary tar­get of lawfare and that this weapon can be an effec­tive one if such claims are not forcefully and consistently challenged and rebutted.


In approaching questions regarding interna­tional law and international institutions, there are a number of basic points that American policymak­ers, both in the executive branch and in Congress, should keep firmly in mind.

As an independent and sovereign state, the United States is bound by international law, and it must especially respect its treaty obligations.

International law, however, is fundamentally different, both in its conception and in its application, from domestic law. It is not made by legislation, nor is there any inherent legisla­tive authority in the “international community,” however that term may be defined.

States alone can make international law by their own actions.

Every independent state has an equal right and obligation to interpret and apply international law for itself. This is a fundamental and inher­ent attribute of sovereignty.

There is no state, group of states, or interna­tional institution with the right to determine or adjudicate the legal obligations of states, save to the extent that the relevant state or states con­sent to be bound.

In determining what a state’s international legal obligations and rights may be, the critical factor is the actual practice of states. This is true both with respect to customary international law (where the practice of states prevails) and in discerning the proper interpretation and appli­cation of treaties (where practice can elucidate the treaty’s proper scope and meaning).

In assessing state practice, the key inquiry is whether states have observed a particular rule or norm, in relevant circumstances, out of a feeling of being legally bound to do so. Actions taken based on political or practical expedi­ence, or from considerations of good will or courtesy, are not reliable indicia of what inter­national law requires.

The United States cannot be legally bound to treaties, however widely accepted by the inter­national community, that it has not ratified. At the same time, the President should avoid sign­ing treaties that he does not believe will be approved by the Senate, since this may result in (admittedly disputable) claims that the United States must avoid taking action that would defeat the treaty’s “object and purpose” even where it is not a treaty party.

Claims that a state has the right to exercise “uni­versal jurisdiction” should never be accepted at face value. Although the concept of universal jurisdiction (the right of all states to proscribe and punish certain conduct of international interest, such as war crimes), has a long history, there is very little actual state practice support­ing the right of one state to adjudicate and pun­ish the citizens and/or officials of another state merely because the alleged offense is of a “uni­versal” character or concern.

In refusing to accept either the interpretation of international law adopted by other states or the authority of international institutions claiming the right to adjudicate international law claims, the United States is not violating its interna­tional obligations or seeking “impunity.” It is merely exercising its indisputable rights as an independent sovereign.

Sovereignty is not some abstract concept that can or should be redefined by an indeterminate and inchoate “international community.” It is the right of the American people, and of all peoples, to govern themselves in accordance with their own institutions and by their own consent. It is the basis of our right to make law for ourselves.

Lee A. Casey and David B. Rivkin are attorneys in the Washington office of Baker and Hostetler, LLP. Mr. Casey served in the Office of Legal Policy at the Depart­ment of Justice during the Administration of Ronald Reagan and in the Office of Legal Counsel under Presi­dent George H. W. Bush. Mr. Rivkin served during the Reagan and George H. W. Bush Administrations in the Office of the Counsel to the President in the White House and in the Departments of Justice and Energy. They are currently expert members of the United Nations Sub-Commission on the Promotion and Protec­tion of Human Rights. The views expressed here are their own. This paper is one of a series prepared as part of the Freedom Project of the Margaret Thatcher Center for Freedom at The Heritage Foundation.


[1] Letter of Alexander Spotswood to the Lords Commissioners of Trade and Plantations, May 23, 1716, quoted in 2 Richard L. Morton, Colonial Virginia: Westward Expansion and Prelude to Revolution 1710–1763, 413 (Chapel Hill 1960).

[2] For background on the ICC, see (last updated in June 2005).

[3] James Rubin, “A Very Personal War,” Financial Times, Sept. 30, 2000, p. 9.

[4]The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 136 (1812).

[5] For an excellent presentation of the arguments as to why international law is not “law,” see Robert H. Bork, “The Limits of International Law,” The National Interest (Winter 1989/90).

[6] Emmerich de Vattel, The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns 3 (Luke White edition, Dublin 1792).

[7] The “Westphalian” system refers to the 1648 Peace of Westphalia, which ended Europe’s Thirty Years War. As part of this general settlement, the Habsburg Holy Roman Emperor recognized the effective independence of various German states. It is a useful shorthand for the system of independent, sovereign, and legally equal states which characterize the global political organization—even though many of today’s states had emerged as independent entities long before 1648.

[8] As Vattel noted, “Nations being free, independent and equal, and having a right to judge according to the dictates of con­science, of what is to be done in order to fulfil its duties; the effect of all this is, the producing, at least externally, and among men, a perfect equality of rights between nations, in the administration of their affairs, and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment; so that what is permitted in one, is also permitted in the other, and they ought to be considered in human society as having an equal right.” Vattel, supra note 6, at 9.

[9] See The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.”).

[10] U.S. Const. Art. VI, cl. 2.

[11] Joseph Story, Commentaries on the Constitution of the United States 686 (Carolina Academic Press ed. 1987) (introduction by Ronald D. Rotunda & John E. Nowak). See also Sosa v. Alvarez-Machain, 542 U.S. 692, 716 (2004) (“The Continental Congress was hamstrung by its inability to ‘cause infractions of treaties, or of the law of nations to be punished.’”). [12] See Reid v. Covert, 354 U.S. 1 (1957); De Geofrey v. Riggs, 133 U.S. 258 (1890).

[13] See Hamdi v. Rumsfeld, 316 F.3d 468-69 (4th Cir. 2003) (Courts find a treaty self-executing only if the instrument, as a whole, evinces the intent to create a private right of action), vacated on other grounds, 542 U.S. 507 (2004).

[14] See Breard v. Greene, 523 U.S. 371 (1998). This does not, of course, necessarily affect the United States’ international obligations.

[15] See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936).

[16] 617 F.2d 697 (D.C. Cir. 1979).

[17]I d. at 705.

[18] The courts do, of course, regularly interpret and apply treaties in the cases that come before them—so long as a treaty remains in force and assuming it created a private right of action so as to support a litigant’s suit. Even in this context, how­ever, it is well settled that the executive branch’s interpretation of a treaty—even if not conclusive—is entitled to deference. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184–85 (1982) (“Although not conclusive, the meaning attrib­uted to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.”). Moreover, the meaning of treaties between states where the United States is not a party also is considered to be a political question and non-justiciable in the United States courts. See Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005) (interpreta­tion of peace treaties between Japan and belligerents other than the United States non-justiciable political question).

[19] 175 U.S. at 700 (emphasis added).

[20] Restatement (Third) of the Foreign Relations Law of the United States § 103 (1987).

[21] This often is referred to as the rule of the “persistent objector.” However, it is unclear on what basis a rule can be imposed regardless of whether a state has persistently objected, so long as it has made clear its opposition at some point during the rule’s development.

[22] See, generally, Restatement (Third) of Foreign Relations Law, supra note 20, § 103.

[23] The Paquete Habana, 175 U.S. at 700. (The exceptions, of course, are the rulings of a court acting within its own recognized jurisdiction.)

[24] Ian Brownlie, Principles of Public International Law 7 (4th ed. 1990).

[25] As a result, certain treaties include specific provisions forbidding derogation from particularly important provisions. For example, Article 4(2) of the International Covenant on Civil and Political Rights states that certain of its provisions (largely dealing with critical human rights such as the right to life, due process, and freedom of conscience) are non-derogable. Whether this section, or similar provisions, are themselves subject to derogation is an open question.

[26] See Brownlie, supra note 24, at 513. As Brownlie also notes, “more authority exists for the category of jus cogens than exists for its particular content.” Id. at 514–15.

[27] See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981) (“prior cases of this Court have also recognized that the President does have some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate.”).

[28] Restatement (Third) of Foreign Relations Law, supra note 20, § 303, cmt. g.

[29]Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 308 (2d Cir. 2000).

[30] See Restatement (Third) of Foreign Relations Law, supra note 20, § 312 note 6.

[31] See id., § 312 cmt. i.

[32] As noted by Professor Brierly, “It is a truism to say that no international interest is more vital than the observance of good faith between states, and the ‘sanctity’ of treaties is a necessary corollary.” J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace 331 (6th ed. 1963). That said, there are many circumstances in which the rights and duties undertaken by the parties to a treaty can and do change. Id.

[33] 125 S.Ct. 2088 (2005).

[34] Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31, 2004).

[35] 125 S.Ct. at 2090.

[36] U.N. Charter, art. 39.

[37] U.N. Charter, art. 49.

[38] U.N. Charter, art. 2(3).

[39] Vattel, supra note 6, at 16 (emphasis in original).

[40] 19 Dep’t of State Bull. 751 (1948) (remarks of Eleanor Roosevelt, United States Ambassador to the United Nations). See also Sosa v. Alvarez-Machain, 542 U.S. at 734 (“the Declaration does not of its own force impose obligations as a matter of inter­national law.”).

[41] 28 U.S.C. § 1350.

[42] 542 U.S. 692 (2004).

[43] Id. at 728.

[44] Id. at 725.

[45] The Nurnberg Trials, 6 F.R.D. 69, 107 (1946).

[46] See Remarks of Mark Grossman, Under Secretary of State for Political Affairs, to the Center for Strategic and International Studies (May 6, 2002).

[47] 11 U.S. (7 Cranch) 116 (1812).

[48] Austriav. Altmann, 541 U.S. 677, 688 (2004).

[49] 11 U.S. at 135.

[50] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2004 I.C.J. No. 121 (Judgment of Feb. 14, 2002).

[51] U.N. Charter, art. 2(1).

[52] U.N. Charter, art. 51.

[53] U.N. Charter, art. 2(4). For a longer discussion of this issue, see David B. Rivkin, Jr., Lee A. Casey, and Mark Delaquil, “War, International Law and Sovereignty; Reevaluating the Rules of the Game in a New Century: Preemption and the Law in the 21st Century,” Chi. J. Int. L. 467 (2005).

[54] See Statement of President William J. Clinton Authorizing the Signing of the Rome Statue of the International Criminal Court (Dec. 31, 2000).

[55] 22 U.S.C. §§ 7421–7432.

[56] See Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Ex parte Quirin, 317 U.S. 1 (1942).

[57] See Remarks of Michael J. Matheson: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U. J. Int’l 419, 421–424 (1987).

[58] Republic of Ireland v. the United Kingdom, Series A, No. 25 (Judgment of Jan. 18, 1978).

[59] For a more detailed discussion of this point and related authorities, see Lee A. Casey and David B. Rivkin, Jr., “The Dangerous Myth of Universal Jurisdiction,” in Robert H. Bork (ed.) “A Country I Do Not Recognize” The Legal Assault on American Values 135, 138–42 (Hoover 2005).

[60] Charles J. Dunlap, Jr., “The Role of the Lawyer in War: It Ain’t No TV Show, JAGs and Modern Military Operations,” 4 Chi. J. Int’l L. 479, 480 (2003).

TOPICS: Constitution/Conservatism; Foreign Affairs; Government
KEYWORDS: internationalists; sovereignty; undueinfluence
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Sovereignty ... is the right of the American people, and of all peoples, to govern themselves in accordance with their own institutions and by their own consent.

As an independent and sovereign state, the United States is bound by international law, and it must especially respect its treaty obligations.

We have a right to govern ourselves, yet we are bound by international law?

Should the Heritage Foundation be instructing our elected officials on this matter, or is this yet another way to wield undue influence over our politicians?
1 posted on 08/24/2006 8:50:05 AM PDT by hedgetrimmer
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To: calcowgirl; nicmarlo; texastoo; William Terrell; Tolerance Sucks Rocks; cinives; Czar; ...

For your research.

2 posted on 08/24/2006 8:50:49 AM PDT by hedgetrimmer
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To: hedgetrimmer
Then this body of "Internationals" is gonna have to raise an army and invade every country in the world to achieve their goal. They won't like the greeting most nations would give them...
3 posted on 08/24/2006 8:56:41 AM PDT by Edgerunner (The greatest impediment to world peace is the UN and the Peaceniks)
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To: hedgetrimmer

"They readily accepted that, as an independent sovereign, the United States was bound by international law to the same extent as were the other “powers of the earth.” This much was made clear by the Declaration of Independence itself, which explained why it had become “necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”"

Total BS!

The 'law of nature(God)' and the 'law of man' are too entirely different things.

Talk about reaching!

4 posted on 08/24/2006 9:06:44 AM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: Bigh4u2

Remember, this baloney is being distributed to our lawmakers as a 'guide'. Why is the heritage foundation allowed to 'guide' our policymakers? That is the job of citizens and constitutents.

5 posted on 08/24/2006 9:49:50 AM PDT by hedgetrimmer
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To: hedgetrimmer
In the proud Freeper tradition of posting without reading I will say that I saw, upon a brief scan, nothing objectionable. Our relations with other countries should be the same as the founders envisioned the relationship between the state and the federal government, a contract (treaties on an international basis) among equals which can be dissolved when one or the other violates it.

The main problem began in the early '20s with the growing influence of Communism in this country. We are seeing the harvest of the seeds sown then.
6 posted on 08/24/2006 10:12:09 AM PDT by Mind-numbed Robot (Not all that needs to be done, needs to be done by the government.)
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To: hedgetrimmer
"Why is the [H]eritage [F]oundation allowed to 'guide' our policymakers?"

Your papers, please. [pun intended]

The views expressed here are [Lee A. Casey and David B. Rivkin's] own. This paper is one of a series prepared as part of the Freedom Project of the Margaret Thatcher Center for Freedom at The Heritage Foundation.

7 posted on 08/24/2006 10:17:42 AM PDT by 1rudeboy
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To: hedgetrimmer
an advanced and determined movement

There has been a Global Society movement for a century and a half, as there has been Marxism. These are not necessarily related even though many follow both as if they are the same. There is also the Global Civil Society movement, which is something yet again. There is also a weird international or (better) anational movement with no coherent leadership that shows up spontaneously whenever the economic summits or bilderburgers take place. The anarchy of these spontaneous demonstrations is counter to law and international law, whatever the latter might be if anything.

8 posted on 08/24/2006 10:19:56 AM PDT by RightWhale (Repeal the law of the excluded middle)
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To: Toddsterpatriot; expat_panama; Mase; nopardons; hedgetrimmer
Check this out. Not content to post leftist drivel, our colleague hedgetrimmer has turned her attention to the nefarious people at Heritage.
9 posted on 08/24/2006 10:28:28 AM PDT by 1rudeboy
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To: 1rudeboy

Truly a Paul Ross level post.

10 posted on 08/24/2006 10:30:08 AM PDT by Toddsterpatriot (Why are protectionists so bad at math?)
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To: Toddsterpatriot

I skimmed it as well. Looks fairly comprehensive, and not that sinister . . . unless the word "international" makes one break out in hives.

11 posted on 08/24/2006 10:32:05 AM PDT by 1rudeboy
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To: 1rudeboy

"In refusing to accept either the interpretation of international law adopted by other states or the authority of international institutions claiming the right to adjudicate international law claims, the United States is not violating its interna­tional obligations or seeking “impunity.” It is merely exercising its indisputable rights as an independent sovereign."

In this context you should be concerned.

Luckily, at least for the most part, the Judiciary isn't biting.

12 posted on 08/24/2006 10:59:14 AM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: Bigh4u2

I should be concerned because the U.S. is asserting its sovereignty? How?

13 posted on 08/24/2006 11:00:44 AM PDT by 1rudeboy
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To: 1rudeboy
the nefarious people at Heritage

Good one! Mind if I use it?
14 posted on 08/24/2006 11:00:51 AM PDT by hedgetrimmer
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To: hedgetrimmer

Be my guest, although I should warn you that this is a conservative website. You tend to forget.

15 posted on 08/24/2006 11:01:51 AM PDT by 1rudeboy
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To: 1rudeboy

"the interpretation of international law adopted by other states or the authority of international institutions claiming the right to adjudicate international law claims,"

Not the U.S. asserting it's sovereignty.

The fact that some in the Judiciary aren't should be the concern.

16 posted on 08/24/2006 11:18:15 AM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: 1rudeboy

You said it, not me.

17 posted on 08/24/2006 11:19:51 AM PDT by hedgetrimmer
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To: hedgetrimmer

How many carrier groups and divisions can "International Law" field?

18 posted on 08/24/2006 11:20:21 AM PDT by Little Ray (If you want to be a martyr, we want to martyr you.)
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To: hedgetrimmer

Umm . . . yeah. You going anywhere with this, or are we taking the usual circuitous route? LOL

19 posted on 08/24/2006 11:25:52 AM PDT by 1rudeboy
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To: Little Ray

Let's see, Kosovo is a UN protectorate.

The USS Enterprise, USS Theodore Roosevelt, and USS Kearsarge and land-based naval aircraft flew thousands of combat sorties as part of the air campaign.

CARRIER AIR WING SEVEN traveled to Aviano Air Base in Italy to participate in Operation ALLIED FORCE, returning home in July after completing 570 missions and over 2,400 flight hours over Kosovo.

Task Force Falcon, Texas National Guard, will join fellow 36th Infantry Division troops, along with 40th ID, in Jan. 2006 . The Soldiers will be replacing nearly 1,700 National Guard Soldiers from California (40th Infantry Division), Kansas (1st Battalion, 635th Armor; 35th Military Police, and Detachment 1, 24th Medical Company – Air Ambulance) and Pennsylvania (Company C, 1-104th Aviation; 628th Military Intelligence Battalion; and 928th Finance Battalion

Thats scratching the surface. Then there was/is Haiti.

20 posted on 08/24/2006 11:33:01 AM PDT by hedgetrimmer
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