I would like to report here on a seminar I attended this week on the topic in title, at UC Berkeley Law School, where Prof. Oona Hathaway presented brillantly her views. She classifies challenges into three categories: framing, structure and substance. I reproduce hereafter my notes from her presentation.
1. Framing, answering shortcomings of previous administration and attacks.
Several U.S. politicians expressed strong criticisms against the international institutions, and in particular the United Nations (U.N.)system and the necessity the defend the country sovereignty. Prof. Hathaway quoted among others Congressman Ron Paul or Pat Buchanan (the latter having said that UNCLOS "represents a permenant loss of national sovereingty"). The previous decades saw the withdrawal of the U.S. from several international treaties, and a switch in public opinion regarding the U.S. role in international politics. Only 35 % of the world population see the U.S. as an important international player today. A dramatic change compared to the influence of the U.S. after WWII. Also, although a large majority of U.S. citizens is in favour of a greater involvement of their government in international diplomacy, only one fourth expresses confidence in international organisations such as the U.N.
2. Structure, the manner public international law is made in the U.S.
Prof. Hathaway recalls the recent U.S. Supreme Court decision Medellin v. Texas which reconsiders the fact that international obligations cannot be enforced by domestic courts in the U.S. This represents a major challenge in terms of implementation of international law.
The manner how treaties are adopted in the U.S., and in particular Article II Treaties where the president does not need to consult or be backed by the Congress, is a democratic issue, because the legislative branch is not involved. Articles II treaties where the U.S. president can sign international agreements without Congress consent, have dramatically increased since 1950s.
3. Substance, the sectoral challenges.
Prof. Hathaway named the following: (1) global warming; (2) laws governing the war on terror, in particular the closing of Guatanamo, the detention of unlawfull combattants, and the rebuilding of a norm on torture; (3) legal restraints on use of force (e.g., the manner how the U.S. invaded Irak and its legality); (4) International Criminal Court and international criminal law (Should the U.S. participate? Is the proliferation of tribunals a good thing? The U.S., due to their wide presence abroad in peace keeping operation, could also be sued for ingerence); (5) UNCLOS, which may represent the easiest step forward internationally; (6) Civil liability and Alien Tort Claims Act; (7) renewed commitment to human rights law; (8) global approach to private international law, such as tax law and commercial arbitration; (9) the proper role of the Security Council and the reform of the U.N.; (10) economic sanctions (Are they appropriate? Are unilateral sanctions legal?)
To my question on the ratification of UNCLOS and the impact of the current revived discussion on offshore drilling along the U.S. coasts, Prof. Hathaway recalled that: even if the U.S. has not ratified UNCLOS, most of the rules have been implemented through customary law. The direct and positive effect of the ratification would be to get a seat at the table of negotiations, and in doing so influence rules and framework definitions. What could limit the U.S. action, would be UNCLOS institutional and judicial infrastructure, such as the dispute resolution procedure and possible legal suits before the tribunal, optional reference to the ICJ and arbitration procedures. The only real challenge regarding offshore drilling lies with the maritime boundaries. The ones on offshore regions are pretty much set, but the ones located in ice-smelting areas could be a challenge for further exploitation of natural resources.
Comments