UC Irvine Journal of International, Transnational, and Comparative Law

Today’s symposium asks whether international law can thrive in the United States. The question is intriguing but also ambiguous, and it is not immediately clear what it would mean for international law to “thrive” within a state.  One might look to a range of possible indicators, including the extent to which international law is internalized in U.S. domestic law, its participation in treaty regimes, its willingness to submit disputes to international adjudication, or the prominence of international law issues in public discourse and government decision-making on important foreign policy matters.  For purposes of this presentation, however, I focus on one concrete indicator: the extent to which the United States complies with international legal obligations in the especially difficult context of the rules governing the use of force—an area in which the stakes are unusually high and the incentives to depart from legal constraints can be particularly strong for a militarily powerful state like the United States.  

The presentation will examine these issues through the prism of three prominent cases involving use of force by the United States: the quarantine imposed by President Kennedy during the Cuban missile crisis of 1962, the air campaign launched by President Clinton in response to the situation in Kosovo in 1999, and the invasion of Iraq directed by President Bush in 2003. These cases illustrate that whether international law is seen as “thriving” depends not only on the technical strength of the legal arguments advanced by the United States, but also on the extent to which others see decisions to use force as consistent with the values that underlie the relevant legal rules.