Us International Law Issues

United States International Law Issues in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”):

The Arab Awakening presented a variety of challenges for the practice of international law in 2011. In addressing events in Tunisia, Egypt, Libya, Bahrain, and elsewhere, the United States government carefully applied what Secretary of State Hillary Rodham Clinton has called “smart power,” utilizing a wide array of foreign policy tools to fit the needs of the particular circumstance. In Libya, the U.S. took a multilateral approach, acting quickly at the United Nations Security Council to pass historic resolutions that established an arms embargo and sanctions regime and made the first ever unanimous referral to the International Criminal Court. Based on Security Council Resolution 1973's authorization for “all necessary measures” to enforce a no-fly zone, and consistent with the War Powers Resolution, the United States was part of a limited, NATO-led military mission in Libya. Various additional legal issues arose during the U.S. response to the situation in Libya, including those related to securing a protecting power, addressing the situation at the United Nations Human Rights Council, recognizing the new Libyan government, and arranging for funds to be made available to the new government using assets of the former regime that had been frozen pursuant to Security Council resolutions. These issues form a significant part of the discussion in several chapters of the 2011 volume of the World Encyclopedia of Law. For the first time, the State Department is publishing the official version of the World Encyclopedia of Law exclusively on-line. By publishing the World Encyclopedia of Law on-line, we seek to make U.S. views on international law more quickly and readily accessible to the U.S. counterparts in other governments and international organizations, scholars, students, and other users, both within the United States and around the world.

Developments

In the U.S. approach to counterterrorism, applying smart power has meant a continued commitment to the rule of law. In May 2011, the United States completed a lawful operation that resulted in the death of Usama bin Laden, a legitimate target in the U.S. conflict with al-Qaida. The United States continued to pursue other leaders of al-Qaida, while ensuring, consistent with President Obama's direction, that all the U.S. actions—even when conducted out of public view—comply with the U.S. laws and values. The U.S. government's counterterrorism efforts outside of Afghanistan and Iraq have focused on those individuals who present a significant threat to the United States and whose removal would cause a significant disruption of the plans and capabilities of al-Qa'ida and its associated forces. We have worked to uphold the U.S. values and the In the U.S. approach to counterterrorism, applying smart power has meant a continued commitment to the rule of law. In May 2011, the United States completed a lawful operation that resulted in the death of Usama bin Laden, a legitimate target in the U.S. conflict with al-Qaida. The United States continued to pursue other leaders of al-Qaida, while ensuring, consistent with President Obama's direction, that all the U.S. actions—even when conducted out of public view—comply with the U.S. laws and values. The U.S. government's counterterrorism efforts outside of Afghanistan and Iraq have focused on those individuals who present a significant threat to the United States and whose removal would cause a significant disruption of the plans and capabilities of al-Qa'ida and its associated forces. We have worked to uphold the U.S. values and the.

Details

In 2011, the United States government repeatedly brought international law to bear in the domestic law context. For example, the Office of the Legal Adviser continued in 2011 to pursue compliance with the International Court of Justice judgment in Avena, by promoting legislation—the Consular Notification Compliance Act—and supporting the request for a Supreme Court stay in a death penalty case involving an Avena defendant. We encouraged domestic courts to weigh international law and foreign policy considerations with suggestions or statements on behalf of the State Department in cases involving the immunity of foreign officials; cases considering the constitutionality of legislation implementing international treaty obligations; cases challenging U.S. state laws concerning immigration; and cases seeking relief outside of the compensation arrangements the United States agreed to with Germany and Austria for claims arising out of World War II. In the U.S. initial amicus brief in the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum, we argued that a corporation can be held liable under the Alien Tort Statute for violations of the law of nations. In the Zivotovsky case, we asked the Supreme Court to respect the U.S. long-standing policy to recognize no state as having sovereignty over Jerusalem as a crucial part of the U.S. efforts to further the Middle East peace process.

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Negotiating, joining, and implementing treaties and international agreements remained an important part of U.S. efforts to promote international law in 2011. We secured advice and consent to the Mutual Legal Assistance Treaty with Bermuda and the Bilateral Investment Treaty with Rwanda. In October, we used congressional-executive agreements to adopt free trade agreements with the Republic of Korea, Colombia, and Panama. Also in 2011, the United States signed maritime law enforcement cooperation agreements with Senegal, Nauru, Tuvalu, and Gambia and an agreement with the members of the Arctic Council on aeronautical and maritime search and rescue. The United States actively assisted the 17th Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change in Durban in launching a process to develop an agreement by 2015 that will apply beginning in 2020. The Obama administration also sought Senate advice and consent for several important treaties in 2011, including protocols to two nuclear weapon free zone agreements; an agreement on preventing illegal, unreported, and unregulated fishing; and Additional Protocol II to the 1949 Geneva Conventions, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts.

United States International Issues in 2011 (Continuation)

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): We continued the U.S. active engagement with international bodies that promote greater understanding of customary international law. We commented on and commended the work of the International Law Commission, including its approval of draft articles on the effects of armed conflict on treaties. In 2011, Professor Sean Murphy of the George Washington Law School was elected a Member of the International Law Commission, restoring U.S. membership after several years' absence. We remained a strong supporter of the United Nations Commission on International Trade Law, which adopted a revised model law on public procurement and a judicial deskbook on cross-border insolvency in 2011.

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In the area of human rights, the United States continued its active participation in United Nations processes to review states' records on human rights, including the record of the United States. I had the privilege of making the U.S. presentation to conclude the U.S. first Universal Periodic Review at the Human Rights Council. The United States also submitted its Fourth Periodic Report to the United Nations Committee on Human Rights Concerning the International Covenant on Civil and Political Rights. the U.S. own report on trafficking in persons included for the first time an evaluation of U.S. anti-trafficking efforts. We also achieved some milestones in 2011 in promoting Secretary Clinton's human rights agenda, including passage of landmark Human Rights Council resolution 16/18 on combating discrimination based on religion without limiting freedom of expression, following up by hosting the first meeting of the “Istanbul process” for implementing that resolution. The United States also led the way with initiatives and a Human Rights Council resolution to protect the human rights of lesbian, gay, bisexual and transgender persons, which was echoed in Secretary Clinton's landmark speech on that subject before the Council on Human Rights Day 2011. The release of the U.S. National Action Plan on women, peace, and security and passage of a United Nations General Assembly resolution introduced by the United States on women's political participation further exemplified the U.S. commitment to promoting human rights.

Developments

The Office of the Legal Adviser worked closely with colleagues in other bureaus and departments on a broad array of resolutions considered and adopted during the year by the Security Council, the General Assembly, and other United Nations bodies, including the adoption and implementation of a range of critically important resolutions related to peacekeeping missions and sanctions programs in various countries around the world, including Sudan, Eritrea, Somalia, and Côte d'Ivoire. In April, the Security Council unanimously adopted Resolution 1977, extending the mandate of the 1540 Committee which promotes implementation of member states' obligations under resolution 1540 to enforce effective measures to counter the proliferation of weapons of mass destruction. In November, the United States joined in a successful General Assembly resolution condemning an Iran-supported terrorist plot against the Saudi ambassador to the United States.

Details

As in the past, the Digest has been a team effort. Its preparation and publication continue to rely on efforts of many dedicated members of the Office of the Legal Adviser. For 2011, I want especially to thank former editor Elizabeth Wilcox for her outstanding work and gathering materials and beginning the drafting process for many of the chapters of the Digest. Her ongoing availability and expertise have ensured a smooth transition for the U.S. new, able and dedicated editor, CarrieLyn Guymon. Among the many L attorneys who voluntarily contributed to the current volume are Kevin Baumert, Jay Bischoff, John Blanck, Violanda Botet, Gilda Brancato, Mary Comfort, Maegan Conklin, Daphne Cook, Paul Dean, Hollin Dickerson, Lara Flint, Kimberly Gahan, Katherine Gorove, Peter Gutherie, Julie Herr, Brian Israel, Jessica Karbowski, Ron Katwan, Elizabeth Kiingi, Emily Kimball, Jeff Klein, Richard Lahne, Jennifer Lansidle, Oliver Lewis, Keith Loken, Anna Mansfield, Julie Martin, Samuel McDonald, Patricia McDonough, Kathy Milton, Dana Montalto, Holly Moore, Lorie Nierenberg, Judy Osborne, Patrick Pearsall, Alexandra Perina, Catherine Peters, Meg Pickering, Shawn Pompian, David Pozen, Nisha Prabhu, Sarah Prosser, Sabeena Rajpal, Phillip Riblett, Christine Sanford, Tim Schnabel, Nina Schou, Jeremy Sharpe, Mallory Stewart, David B. Sullivan, Gabriel Swiney, Jesse Tampio, Margaret Taylor, Jeremy Weinberg, and Erik Woodhouse. Their dedication to this, as to so many other tasks, is only one of the many reasons it is such a joy to work at L.

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Once again, I express very special thanks to Joan Sherer, the Department's Senior Reference Librarian, Legal, for her invaluable technical assistance. Jerry Drake, the records manager for the Office of the Legal Adviser, provided enthusiastic help in formatting the Digest as an electronic publication, for which I am also very grateful. For me, it is an especially great honor to work at such a distinguished international law firm, with such tradition, esprit and commitment. Finally, I especially thank my colleague CarrieLyn Guymon for taking on the crucial role of Editor for this volume; we all very much look forward to her continuing, outstanding work on this important enterprise.

Harold Hongju Koh The Legal Adviser Department of State

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Notes and References

1. 1 the U.S. 80th birthday (eight decades after Congress created the office by statute) actually came in the U.S. 163rd year of existence. For a review of L's history, culture, and achievements, delivered at a conference attended by many present and former L attorneys, including eight past and present Legal Advisers, see Harold Hongju Koh, The State Department Legal Adviser's Office: Eight Decades in Peace and War, 100 Georgetown Law Journal 1747 (2012), available at (internet link) georgetownlawjournal.org/files/2012/06/Koh.pdf.

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Notes and References

1. 1 the U.S. 80th birthday (eight decades after Congress created the office by statute) actually came in the U.S. 163rd year of existence. For a review of L's history, culture, and achievements, delivered at a conference attended by many present and former L attorneys, including eight past and present Legal Advisers, see Harold Hongju Koh, The State Department Legal Adviser's Office: Eight Decades in Peace and War, 100 Georgetown Law Journal 1747 (2012), available at (internet link) georgetownlawjournal.org/files/2012/06/Koh.pdf.