Foreign Policy Blogs

Law And Security Strategy: Year In Review

As Martin Luther King Jr. said, the arc of history is long, but in terms of international relations, it remains unclear to which direction it bends.  A continuation of the nation-state system?  A move toward world government?  A hybrid of the two?  In 2010, we’ve seen movement.  But toward what?  The International Criminal Court (ICC) decided to activate its jurisdiction over the crime of aggression; Afghan Representative to the United Nations (UN), Zahir Tanin, produced the first negotiation text for UN Security Council reform; the UN General Assembly voted to make access to water a human right; the U.S. and Russia signed New START, which would reduce their strategically deployed nuclear warhead levels to 1550 each; nearly 190 nations attended a conference to review the Nuclear Non-proliferation Treaty (NPT).

But has much really changed?  The government of the most powerful state of our international system, the U.S., opposed the ICC’s move, UN Security Council reform has already been dragging on for decades, and New START remains stalled in the U.S. Senate.

And isn’t this consistent with a historical pattern?  In the early 20th century, the powerful Great Britain declined to ratify the Declaration of London, which would have hindered its maritime activities during World War I.  In the Pelopponnesian War, according to Thucydides, the powerful Athenians refused to incorporate notions of morality into their decision-making process when determining whether they should attack the much weaker Melians.  Powerful countries, it seems, will always, to a certain degree, resist moral and legal restraints on their behavior.  They may declare, as the Obama administration did in its National Security Strategy, that they will “seek to adhere to standards that govern the use of force,” but as I wrote earlier in the year, the inclusion of the words “seek to” casts doubt on their devotion to laws and norms.  Conversely, though, such states will find, as they have before, that their interests are inextricably linked to law and morality.  As the Melians said to the Athenians, “you should not destroy what is our common protection, the privilege of being allowed in danger to invoke what is fair and right… And you are as much interested in this as any…”  The tension between these two elements – the security strategist’s desire to eschew legal restraints and the political reality that necessitates their consideration – endures, slowly determining the future direction of the arc of global affairs.


This year, I offer you Notre Dame law professor, Mary Ellen O’Connell, for her efforts to bring the Obama administration’s actions into the realm of legality.

O’Connell embraces the notion that those who assert international law’s irrelevance are mistaken.  Her debate with Benjamin Wittes of Lawfare over the Obama administration’s drones program is a prime example.  In the debate, she argued, successfully, in my opinion, not only that the drones program is illegal, but also that adhering to the law would better serve U.S. national security interests.  At the heart of her argument, amidst the various other relevant legal issues, is the notion that the law enforcement model, as opposed to the war model, is a more effective route to combat terrorism.  She cites the 2008 RAND study on terrorism, which asserts that most terrorist groups end because they either join the political process or are captured or killed by law enforcement officials.  Since international law incorporates the concept of necessity, and the use of force beyond police action, as the RAND report demonstrates, is not necessary to counter the threat of terrorism, the war model is difficult to legally justify.  With necessity, international law actually provides a road map for how states can best serve their national security interests.

Such arguments get us beyond the age-old dilemma, articulated by the now-late Louis Henkin in How Nations Behave, that “the student of foreign affairs is skeptical about international law” and “sees it in the main as an esoteric subject for academic speculation,” while the student of international law “tend[s] to begin with international law, and often they end there: law is law; all of it should be observed, and respectable governments observe it…”  Security strategy and international law are tightly knotted together.  And hopefully U.S. leaders will take greater note of this reality, and in the future, not feel the need to include the words “seek to” in front of the words “adhere to standards that govern the use of force.”


I’m continually surprised, happily so, by the American public’s strong support for the rule of law.  U.S. public opinion polls demonstrate that 68% think the U.S. should join the ICC and 56% support reading suspected terrorists their Miranda rights.  The American public also strongly supports international arms control covenants.  73% think the Senate should approve New START.  62% believe no countries should be allowed to have nuclear weapons, which is the goal of the NPT (Aticle VI obligates NPT nuclear weapon states “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control”).  And as of 2004, 87% support an international treaty that bans nuclear explosions, 83% support an international landmine use ban, 91% support banning all chemical weapons, and 91% support banning all biological weapons.

One wouldn’t think these things to be true, though, upon observing U.S. government behavior.  In 2010, the Obama administration announced it would not join the ICC anytime soon.  Obama’s effort to seek ratification for the Comprehensive Nuclear Test Ban Treaty and New START has thus far been unsuccessful.  Though 68 Senators wrote a letter urging Obama to seek ratification of the 1997 Ottowa Convention, which would ban landmines, the U.S. has still not signed it.  The U.S. is a party to the Chemical Weapons Convention but went for over a year without appointing an envoy to the treaty’s monitoring organization and is in danger of missing a 2012 deadline for disposing of banned chemicals.  The U.S. is also a party to the Biological Weapons Convention but decided to uphold President Bush’s policy of rejecting a protocol that would establish a legally binding inspection regime.  Still, the power of public opinion endures with the potential to alter governmental behavior.


Perhaps the most superfluous thing I could do is tell my readers to keep an eye on the unfolding Iranian nuclear issue, for the topic never fails to attract widespread scrutiny.  However, for me, this issue is key, as it gets to heart of many of the complexities of our current international legal order.  It demonstrates what happens when the UN Charter collides with the NPT.  UN Security Council resolutions demand that Iran cease uranium enrichment, even for peaceful purposes, though this is an “inalienable right” acknowledged by Article IV of the NPT.  How legitimate is the Security Council’s power?  How sacred is this inalienable right?  How do all parties involved use, and abuse, the law to suit their interests?  This issue perfectly demonstrates the ways in which law and national security strategy are intertwined.  Iran will meet with the West in Turkey next year.  We will see what happens.