Differing idea of international law
Republican presidential nominee Mitt Romney's international law policy remains unclear. Photo: Reuters
President Barack Obama or Governor Mitt Romney's ability to demonstrate commitment to international law will not create any significant advantage among American voters. But for United States' allies, the divergent approaches toward international law evident in the final presidential debate do matter.
Obama's 2008 victory was greeted with enthusiasm overseas fuelled by eight years of unease over George W. Bush's retreat from international law and institutions. The US spent the better part of the 20th century as chief architect of the United Nations, Geneva conventions, and the International Criminal Court, yet Bush challenged each of them.
Obama's international law policy is now squarely on the public record. The administration describes its policy as pursuing ''a rules-based international system that can advance our own interests by serving mutual interests''. The administration has fallen short of these standards in some areas: the legality of unmanned drone attacks is particularly questionable given evidence of disproportionate civilian casualties. However, in general the administration has treated UN authorisation as a prerequisite to military action in both Libya and Syria, and has renewed relations with the ICC.
The international law policy of a Romney administration understandably remains more uncertain. Much attention has been paid to Romney's debate claim that he would indict Iranian President Ahmadinejad under the Genocide Convention for remarks that Israel ''must be wiped off the map''. The question is whether such appeals by Romney signal an underlying commitment to international law.
Romney first made this claim in a 2007 letter to UN Secretary General Ban Ki-moon that demanded Ahmadinejad's invitation to address the General Assembly be replaced with an indictment. The letter threatened to ''reconsider'' UN support and funding.
Romney's threat to indict cannot be read as a genuine appeal to international law. In the first place, however reprehensible Ahmadinejad's words and actions have been, it is doubtful that they meet the threshold required to establish a crime under the convention.
Even setting aside this obstacle, the barriers to a court issuing an indictment are prohibitive. Since Iran is a member of the convention the first option is indictment in an Iranian court. Short of regime change this is an improbable scenario. The second option is indictment in an American court. Since 2007 US courts have had universal jurisdiction to prosecute genocide where an ''alleged offender is brought into, or found in, the United States''. This option is equally problematic given the diplomatic implications of the US detaining and prosecuting a sitting head of state.
The final alternative is indictment by the ICC. The refusal of both Republican and Democratic administrations to join the court does not preclude this option. In 2005 the US tacitly supported a referral of Darfur by the UN Security Council that ultimately resulted in indictments being issued. Nevertheless, such a prosecution remains highly unlikely in this case.
Romney's appeal to the Genocide Convention, combined with the sheer improbability of an indictment and prosecution, are evidence that Romney follows a well established tradition of treating international law as foremost a diplomatic tool. In particular this means adopting international law where it serves political interests, while avoiding any associated legal constraints.
The idea that the US can use international law instrumentally in this way was a key realisation of the Bush administration in its second term. It is in this mode that Romney is most likely to engage with international law. However, shades of the early Bush years may yet be evident in Romney's comments on the role of the UN. The Security Council was characterised as a forum for Russia ''to battle us'', while Obama's reliance on the UN processes in Syria was criticised as an absence of US leadership.
There are firm limits on the extent an American president from either party will ever fully accede to international law. Romney concluded the presidential debate by referring to America as ''the hope of the earth''. Believing America is guided by exceptional values erodes support for international law just as often as it sustains it. Moreover, this idealism merges with America's unrivalled global power to reinforce confidence in the virtue of promoting national interests at the expense of international legal institutions.
There is a difference between the candidates for allies concerned with global order. The Obama international law policy has striven, however imperfectly, to adhere to the ideal expressed by Republican president Eisenhower that ''the rule of law may replace the rule of force in the affairs of nations''. In contrast the evidence is that a Romney administration would endorse international law where it could be wielded as a diplomatic tool, but might yet return to the open hostility of the Bush years.
Malcolm Jorgensen is a PhD candidate at the US Studies Centre and an associate of the Sydney Centre for International Law at the University of Sydney.