{"id":49998,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/a-moral-foreign-policy-that-ignores-international-law.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"a-moral-foreign-policy-that-ignores-international-law","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/a-moral-foreign-policy-that-ignores-international-law.html","title":{"rendered":"A “Moral” Foreign Policy That Ignores International Law?"},"content":{"rendered":"\n
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A “Moral” Foreign Policy That Ignores International Law?
The History and Ironies of the U.S.’s Current View of Its Role In the World<\/span><\/h1><\/td>\n <\/tr>\n

By EDWARD LAZARUS<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, May. 01, 2003<\/td>\n\n <\/tr>\n <\/table>\n

The war in Iraq has brought into sharp relief a remarkable and important irony in the conduct of this country’s foreign affairs. Rarely, if ever – and certainly not since the collapse of Wilsonian idealism in the 1920s – have notions of morality so infused American foreign policy as they do now. Yet international law, as a constraint on American initiatives, is at its lowest ebb in more than fifty years. <\/p>\n \n

One might have thought, at first blush, that the two concepts – morality and law-compliance – would fit together. But the reality has been very different. <\/p>\n \n

The truth is that – as the Iraq war has shown – international law or, at least, current international institutions no longer serve as a constraint on the projection of American power abroad. Instead, the U.S. has emerged as an absolutely dominant military power, willing and able to disregard the verdict of international institutions in favor of the use of unilateral force. <\/p>\n \n

To some extent, having a moral foreign policy is an unequivocally good thing. It is hard to argue with the basic idea that American notions of individual rights and inalienable human freedoms ought to spread across the globe. There have certainly been inconsistencies and contradictions in the U.S.’s policies with respect to human rights abroad, but the ideal, at least, is laudable. <\/p>\n \n

But having a moral foreign policy that disregards international law and international institutions’ decisions is another matter entirely. Having assumed both the power and right to declare this the “next American century,” the U.S. has also taken on an awesome burden. That burden is to make that century a safer and better one not only for the American people, but also for the peoples of the world. In another irony, by choosing to bypass the will of international institutions, the U.S. places itself in the role of self-appointed protector of all the world’s peoples. <\/p>\n \n

How it will perform in that role remains to be seen. But one thing is clear: Generations from now, when the historians of another age assess the grand American experiment, they will judge it not only for what it did for its own people, but also for what it did – or did not do – for others. Historians will ask whether America succeeded or failed in curbing the terrors of the post-atomic age by bringing the American experiment to the world. Such are the stakes in Iraq now.<\/p>\n \n

America’s Morality-Based Foreign Policy: Rooted in History, and Here to Stay<\/b><\/p>\n \n

The recent surge of moral thinking in U.S. foreign policy has longstanding roots in our national history and spirit – and indeed, in world history. It’s likely to be a feature of U.S. policy for a long time. <\/p>\n \n

The idea that foreign affairs should be conducted according to some<\/u> set of moral principles is an ancient one. Some 2500 years ago, the Chinese military strategist Sun Tzu advocated a set of rules for the appropriate conduct of war. In western culture, Saint Augustine argued that all wars need a “just cause.” Later, the thinking of various Europeans ripened into the Hague and Geneva Conventions, which set out laws of war, in an effort to limit the cruelty and collateral suffering that war inevitably entails. <\/p>\n \n

\n\nIn the U.S., in particular, the idea of a moral foreign policy has had a fitful but rich history. America’s first foreign policy was the policy adopted towards the sovereign Indian nations that co-inhabited the continent. It was often informed by a laudable (but disastrously applied) desire to vest native Americans and their tribes with meaningful legal rights.<\/p>\n \n

Later, and more famously, President Woodrow Wilson sought to export moral notions of national self-determination and democracy, and President Franklin D. Roosevelt declared his Four Freedoms for all mankind.<\/p>\n \n

During the long history of the Cold War, however, the moral component of foreign policy all but disappeared. The war itself can fairly be characterized as a battle against a evil and repressive adversary. Yet American policymakers hardly acted according to moral imperatives in fighting it. <\/p>\n \n

To the contrary, they threw moral concerns to the wind whenever confrontations arose, and enthusiastically embraced any number of tyrants in support of the overarching battle against the Soviet Union and its client states. Through the Nixon presidency, and arguably later as well, realpolitik reigned supreme.<\/p>\n \n

Both the Carter and Reagan Administrations reintroduced morality as a key ingredient of foreign policy. The Carterites focused their ire on repressive right-wing regimes; the Reaganites focused theirs on the abuses of Communist regimes. <\/p>\n \n

Even during these administrations, though, it would have been all but unthinkable that the United States would invade the sovereignty of another nation for significantly humanitarian reasons. <\/p>\n \n

Now, however, in the wake of Bosnia, Somalia, Kosovo, Haiti, and – yes – Iraq, it is equally unthinkable that a U.S. decision to invade would not be, at least in part, based on and justified by the idea of liberating a sovereign people from the oppression of its rulers. <\/p>\n \n

Indeed, America’s national security policy, as well as its policy towards hot spots like the Middle East, is now predicated on the idea of projecting individual liberty and democracy abroad as a means to achieve peace and stability.<\/p>\n \n

The Decline of International Law: It Began Well Before 9\/11 and Accelerated Afterwards<\/b><\/p>\n \n

Even as it pursues an explicitly moralistic foreign policy agenda, the United States has substantially undermined international efforts at morally-based international initiatives. Indeed, it has all but rendered irrelevant the United Nations – heretofore the most important international forum for establishing rules of moral conduct on a global scale.<\/p>\n \n

As Michael Glennon trenchantly argued recently in Foreign Affairs<\/i>, the emergence of the United States as a superpower of unprecedented military dominance has effectively rendered obsolete a number of international regimes for regulating the conduct of sovereign nations, and the U.N. Security Council in particular<\/p>\n \n

Even before 9\/11, the United States was turning its back on international constraints to pursue what it characterized as the requirement of its own national interest and national security. The Clinton Administration, for example, was plenty wary of the International Criminal Court and the Bush Administration has turned its back on the ICC entirely. <\/p>\n \n

After 9\/11, moreover – in a world of proliferating weapons of mass destruction and the evident vulnerability of the United States to terrorist attack – the notion that the United States will accept meaningful international limits on the exercise of its military and political power is simply unrealistic. In this environment, no American political leader could accept a French or German or Russian veto on the nation’s ability to respond to perceived threats around the globe.<\/p>\n \n

So it was that the Bush Administration announced, even in advance of pursuing a U.N. resolution on Iraq<\/u>, that it would pursue its policy of disarming Iraq regardless of the U.N.’s actions. <\/p>\n \n

And so it is that the Administration has adopted a policy of pre-emptive action in the field of foreign affairs that is incompatible with U.N. rules on the use of force. (Article 51 of the U.N. Charter permits the use of force only in self-defense, and only if “an armed attack occurs against a member of the United Nations”; U.S. policy would allow the use of force in a broader array of circumstances, including to deter a future attack.)<\/p>\n \n

The Current Policy Derives In Large Part From U.S. Military Dominance<\/b><\/p>\n \n

None of this should be especially shocking. When the underlying assumptions upon which a legal regime is built fundamentally change, the regime itself is subject to collapse. Consider history: Power shifts undermined first the League of Nations, then the Kellogg-Briand Pact of 1928 (whereby the major powers committed themselves against resorting to war).<\/p>\n \n

The international rules established by the United Nations were conceived in a world with a meaningful balance of power among nations. That balance no longer exists, and that means the regime, too, is drained of force. <\/p>\n \n

Since the fall of the Soviet Union, the U.S. alone has developed a power to defy the rules – a power granted on hugely and uniquely superior military force – which was never imagined when the U.N. rules were conceived. In the current world, when France or Germany -or even Russia – trumpets the idea of international constraints, it is in no small part because they lack the power to defy such restraints.<\/p>\n \n

What We Have Wrought: Big Possibilities and Big Risks<\/b><\/p>\n \n

For anyone who is profoundly enamored of American ideals and their global application yet skeptical of the nation’s ability to effectively remake the world – as I am – the emergence of America’s moralistically driven and legalistically unconstrained view of the world is both awe-inspiring and terrifying. And the current disarray in Iraq only heightens the level of concern.<\/p>\n \n

Someday, we will be judged on the exercise of this power. In the meantime, perhaps we would be wise to heed the caution of James Madison in the Federalist Papers<\/i>; there, he observed that someday the strong may become the weak. Perhaps that “uncertainty of condition” will lead us to develop self-abnegating rules for our own hegemony, or to imagine an international legal regime to which we could subscribe. <\/p>\n \n

But I have my doubts. Whether the issue is the death penalty or the wisdom of imposing democracy upon Iraq, Americans are loath to look anywhere but to their own moral compasses. I expect that for the rest of my lifetime, the future will depend on which way, and how wisely, that compass points. <\/p>\n \n\n\n<\/span>\n\n\n

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\n\n\n<\/a>\nEdward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books – most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court<\/u>.\n

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