December 19, 2004

It is no hidden secret that the White House, occupied either by the Republicans or the Democrats, agrees to only those multilateral agreements that expand America’s global access to resources and markets, and undermine those that support social development around the world. It’s time the international community took a firm stand on the issue

THE future of international law as a framework for global order under the auspices of the UN has become uncertain after 9/11. Three days after the tragic event, President Bush stated that the United States “is peaceful, but fierce when stirred to anger. The conflict was begun on the timing and terms of others. It will end in a way, and at an hour, of our choosing”.

At the start of the war in Iraq, Richard Perle, a leading neo-con and ideologue of the Bush administration, said: “What will die is the fantasy of the UN as the foundation of a new world order. As we sift the debris, it will be important to preserve, the better to understand, the intellectual wreckage of the liberal conceit of safety through international law administered by international institutions.” However, it is too perverse to say that this era marks the demise of the international legal regime. Even the unilateralists in the Bush administration need legal legitimacy for their actions.

Seventeen days after 9/11, the UN Security Council adopted Resolution 1373 which created a new international legal obligation for member states to cooperate in preventing terrorism. But it was a strange irony of circumstances that when UN Secretary-General Kofi Annan announced his support to Washington’s anti-terror campaign, he also pointed out that the Bush administration had not yet ratified two UN treaties aimed at curbing terrorism, signed earlier by the Clinton administration. These related to blocking of underground financial flows and a global system of pursuit and prosecution. Though George W. Bush continued to pursue his undefined war on terror with extraordinary vigour and enthusiasm, it took his administration nine months to ratify the final two of the 12 anti-terrorism treaties.

Past record shows that Washington is averse to multilateralism in matters of international law and agreements, and prefers bilateral agreements. Despite the fact that the United States was one of the key players in the establishment of the United Nations in 1945 and initiated many of the multilateral treaties that had encouraged cooperation on a worldwide scale, there has, over the years, been a steady decline in the US government’s support to the UN and the agreements it helped establish.

President Bush has, in particular, been reluctant to participate in the multilateral treaty system. Although the Senate ratified 10 treaties during his administration, four of these were signed years earlier by President Clinton — including the two anti-terrorism treaties that were not ratified by September 11, 2001 — and five related to key industries rather than social development.

And what has been disgusting to observe was that the Bush administration even nullified US signature in case of at least five major treaties since 2000. These are: the Kyoto Protocol on Climate Change, the Anti-Ballistic Missile Treaty, the Biological and Toxin Weapons Convention, the Non-Proliferation of Nuclear Weapons Treaty and the International Criminal Court. In contrast, other UN members have committed themselves to 929 new treaty actions since 2000 during the secretary-general’s annual ratification drives. In a similar drive from September 21 to 24 this year, the UN member countries undertook at least 101 treaty actions while the US did not take even a single action.

What are the main reasons for US’s growing disregard for, in fact hatred of, the UN system? The Institute for Agriculture and Trade Policy (IATP), a prestigious US-based think-tank, has in an in-depth study of the US behaviour in global affairs concluded that it is, in fact, American establishment’s reluctance to surrender its sovereignty to any other authority that makes it retreat from the UN system. It is another thing that it is more than willing to do so if it is a case of international trade agreements and would rather aggressively negotiate commercial deals even if they required significant changes in not only in its federal laws but also in many state and local laws. So, the United States has become selective about when it should and when it should not subordinate its sovereignty to another authority.

According to the study, the total number of treaties deposited with the UN secretary-general and/or other UN bodies was 549 till September 23, 2004 and the ones ratified by the US numbered 157. It comes to only 29 per cent of the total treaties. The data compiled by the IATP over the years reveals that the United States has ratified:

* 14 of the International Labour Organization’s 162 active treaties and only two of the eight “core conventions” protecting the fundamental rights of working people;

• Just three of eleven major environmental treaties;

• The first Geneva Convention governing wartime behaviour to protect human rights, but not its two related protocols;

• Five of the 12 human rights treaties featured by the office of the High Commissioner for Human Rights; about half of 23 treaties establishing private rights over intellectual property and related technologies;

• Six of 10 treaties under the Food and Agriculture Organization that manage fisheries, timber, pesticides, rice and genetic resources;

• All 13 of the treaties addressing international terrorism.

The data suggests that the US government is more than willing to take part in treaties that extend its control over the world’s resources, but hardly interested in those that promote the rights of the people and protect the planet.

The following are some important facts and information as to why Washington is unwilling to ratify certain treaties:

1. The Convention on the Rights of the Child, which came into force in 1990, demands that states recognize the rights of the children everywhere and protect them from harmful influences. So far, 192 countries have ratified it. Only two countries have not ratified it: the United States and Somalia. The US has not done so because its Article 37 prohibits execution or life imprisonment of persons under the age of 18 and both of these punishments are currently allowed in some US states.

2. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is the second most ratified treaty after the one on rights of child. It came into force in 1981. The US, under president Carter, played a key role in its drafting and had signed it in 1980, but has not yet ratified it because its Article 10 obligates parties to provide “information and advice on family planning” as support for abortion. Other countries which have not ratified it are: Iran, Sudan, Oman and Brunei. Interestingly, even Afghanistan has ratified it.

3. Rome Statue of the International Criminal Court (ICC), which came into force on July 1, 2002, has been ratified by 127 countries. The Bush administration refuses to do so because it fears its allies might be compelled to turn over US personnel to the ICC. It passed a bill in 2002 under which it can cut off financial assistance to those states that refuse to sign “bilateral immunity agreements” with it requiring them to return to the US all Americans on their territories or under their control which the ICC may be seeking. The US has negotiated these bilateral agreements with more than 90 countries. President Clinton had signed the statute in 2000 but President Bush formally nullified the US signature in May 2002. Washington often uses foreign aid to pressure or bully weak states. But it was interesting to observe US officials mounting pressure on Belgium, not a weak state, to compel it to discard its universal jurisdiction law. Not satisfied with the measures taken by Belgium, the US threatened to relocate Nato headquarters from Brussels to Warsaw. In August, 2003 Belgium overturned the related law.

4. America played a leading role in negotiating the Comprehensive Nuclear Test Ban Treaty, but became the first state in 1999 to reject its ratification. Since it was perceived that the CTBT would not stop other states from going nuclear, the US must maintain a strong national security policy. In 2002, the US stated its intention to develop new types of nuclear weapons. Other states which have not ratified it are China, India, Pakistan, Iran, Israel and North Korea.

5. The Kyoto Protocol to the UN Framework Convention on Climate Change, negotiated in the late 1990s, established emissions targets for each of the developed countries. Although 125 countries have ratified it, its enforcement requires that either the US or Russia must ratify it as their respective emission targets of 20 per cent and 17 per cent would achieve the required participation. Russia has agreed to do so. Now Russia has ratified the protocol. The US withdrew from the protocol in 2001 saying it would severely damage the US economy.

6. Washington played an instrumental role in negotiating the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal which was signed by 53 countries in March 1990. One hundred and sixty three countries have ratified it, only three have not done so. They are Afghanistan, Haiti and the United States. The US has not done so because of the opposition from industry lobby groups. Currently it exports most of its toxic wastes to China and other developing countries. Defined as recycling by the US Environmental Protection Agency, this practice can get exemption under the convention. Therefore, the environmental groups demand that the US first sign the Basel Ban Amendment and then ratify the convention.

7. The Freedom of Association and Protection of the Right to Organize Convention, which entered into force in 1950, has not been ratified by the US because current US law forbids federal employees from going on strike and allows companies to permanently replace strikers. All these workers would be entitled to additional legal protection if the US ratifies the convention. So far, 142 countries have ratified this convention.

8. The International Covenant on Economic, Social and Cultural Rights came into force on January 3, 1976 and has been ratified by 150 countries. Several US administrations have taken the view that economic, social and cultural rights are merely desirable goals, not guarantees of the government. During its creation, the covenant lacked support from not only Washington but many other western countries as well. Although these countries later ratified it, the United States is the only country left which has yet to ratify it.

9. The Minimum Age Work Convention came into force in 1973 and has been ratified by 135 countries. The US federal law sets minimum age for work at 16, but there are several exceptions that allow youth under 16 to work especially in agriculture and food industries. The convention allows under-16s to work only in developing countries and the US, of course, does not qualify for that.

10. The US has signed the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families which came into force on July 1, 2003, but has yet to ratify it. If the US were to ratify it, it would have to undertake major structural and legislative reforms for compliance with the convention. Several provisions in US laws undermine many of the rights granted to migrants under the convention. The US carries out immigration raids in violation of the due process rights and several official practices create conditions for hate violence and crimes.

11. After decades of negotiations, the US now supports ratification of the Law of the Sea Convention with an understanding that parties to this treaty have the exclusive right to define which of their own activities at sea qualifies as “military activities,” thereby evading the convention’s goal of limiting militaristic control of the open oceans.

These and other facts highlighted in the IATP study are a testimony to the harsh reality that the White House, be it under the control of the Republicans or the Democrats, is inclined to join only those multilateral agreements that expand America’s global access to resources and markets, and blatantly neglects or, worse yet, undermines those that support social development around the world.

The US millennium challenge account

THE United Nations General Assembly in its Millennium Declaration of September 2000 had adopted eight Millennium Development Goals (MDGs) to invigorate global effort to promote human development and improve the well being of people throughout the world. All 191 member states of the UN agreed to work together in a comprehensive campaign to reduce the number of people in the world living under the debilitating conditions of poverty by 2015.

The first seven MDGs are concrete objectives by which the international community can focus its efforts and measure the results. For example, to meet the first goal, member states pledged to reduce by half the number of people living on less than a dollar a day and the number of people suffering from hunger. Each of these is accompanied by similarly measurable goals to be attained by the year 2015: 1. Eradicate extreme hunger and poverty, 2. Achieve universal primary education, 3. Promote gender equality and empower women, 4. Reduce child mortality 5. Improve maternal health, 6. Combat HIV/Aids, malaria, and other diseases, 7. Ensure environmental sustainability.

The eighth MDG is the mechanism by which the international community would attain the first seven: Develop a global partnership for development, involving official development assistance from developed states to developing ones, freer access to markets and debt sustainability.

A crucial component of the eighth MDG is the financial support known as “official development assistance” (ODA) that is provided by the wealthier countries to help out the developing countries of their choice. Indeed, this assistance comprises more than 80 per cent of all the influx of capital available to the world’s 50 poorest countries and constitutes the bulk of the financing foreseen to implement the MDGs.

For decades, the UN has encouraged the more developed states to provide at least 0.7 per cent of their gross domestic product (GDP) towards foreign assistance. But only six countries — Norway, Denmark, the Netherlands, Sweden, Finland and Luxembourg — have continually met this challenge. All together, the industrialized states have contributed some $50 billion in ODA in recent years, but this still comprises just half of what is estimated to be necessary to meet the MDGs by the targeted date of 2015.

The United States has consistently neglected to meet the ODA funding standards. In 1990, the US disbursed 0.21 per cent of its GDP as aid to developing countries. By 2000, the US contribution of $9.9 billion represented just 0.10 per cent of its GDP.

In 2003, after pledging to increase ODA spending at a major UN conference in Monterery, Mexico on “Financing for Development,” the Bush administration increased the US contribution to more than $15 billion — but this sum was still just 0.25 per cent of the GDP. As a percentage of total GDP, this contribution relegated the United States to last among the world’s 22 most industrialized countries in development assistance overseas and well below their average contribution of 0.41 per cent of GDP.

At the same UN conference in Monterey, President Bush called for a “new compact in global development” that would link any further increases in ODA to greater responsibilities for recipient countries — primarily political reforms. In 2003, the Bush administration created the Millennium Challenge Account (MCA), allocating $1 billion of increased ODA funding towards this fund with a commitment of $5 billion by 2006. In order to be eligible for these new funds, recipient countries must meet the United States’ criteria addressing intellectual property rights, corruption controls and “economic freedoms” such as privatization and participation in the global marketplace.

As of July 2004, 70 countries were named candidates for MCA funding in 2005. However, that same month the US House of Representatives reduced President Bush’s funding request for the MCA from $2.5 billion to $1.25 billion. To date, not one penny has been spent from the United States’ Millennium Challenge Account towards meeting the Millenium Development Goals. — IATP Report

A love-hate relationship

A BIZARRE feature of the United States attitude towards the question of international law is that it loves to create multilateral treaties and international agreements, but hates to subject itself to the discipline of most of them. The history of the past century reveals that the US desire to participate in and help create a global framework of laws that builds national and global security is counteracted by fears that international obligations will injure US interests and sovereignty.

The fact remains that the United States is one of the founders of the modern system of international law. Even its inception as a federal state was motivated by the idea that a system of constitutional law is superior to rule by a king. Regardless of whether a treaty, once ratified, is enforced within the United States or not, its courts recognize that it is a legal obligation of the United States on the international plane. For a treaty to become US law, two-thirds of the Senate must give its “advice and consent” to its ratification. Ratification occurs when the president gives formal notice of US acceptance of a treaty to other signatories.

The US has been averse, right from the outset, to the establishment of an international organization conducting affairs between nations. Small wonder, the American Senate declined to approve ratification of the Versailles Treaty establishing the League of Nations. And in case of the United Nations, the US agreed to be part of it only on the condition that it will enjoy a veto in its highest political body, the Security Council. It was accepted as a fait accompli by other nations since most of Europe was devastated by the war and its first priority was survival and recovery.

Now that the US plays host to the UN and a majority of its people support a stronger role by the UN in conducting international affairs and settling disputes, a vocal faction of the US government expresses wariness, and often hostility, towards the UN. In the 1980s and 1990s, the United States refused to pay its dues to the UN unless the latter reduces its bureaucracy and ensures preservation of US sovereignty. But after the September 2001 terrorist attacks, US Congress quickly approved payment of a large sum of arrears to the UN saying international cooperation through the UN was badly needed to fight terrorism.

With respect to international criminal law, the United States played a leading role following World War II in convening the Nuremberg trials of major Nazi war criminals. In the 1990s, the United States also supported the Security Council’s establishment of ad hoc tribunals to try persons accused of war crimes, crimes against humanity, and genocide in the former Yugoslavia and Rwanda. However, it now opposes the International Criminal Court as it fears that US nationals, along with those of other states, will be subject to the court’s jurisdiction.

Many US citizens, including Eleanor Roosevelt, played key roles in the evolution of international human rights instruments during the Second World War. But their adoption by the US political system itself has been slow. The United States did not ratify the 1948 Genocide Convention until 1988. The Senate expressed significant reservations and conditions when it approved ratification of the Covenant on Civil and Political Rights and the Convention Against Torture. The United States has not yet ratified the Convention on Discrimination against Women, the Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child (Somalia is the only other state not to have ratified the last treaty).

In 1946, when the United States accepted the general jurisdiction of the International Court of Justice, it sought to exempt matters “within [US] domestic jurisdiction as determined by the United States.” In the 1980s, after the court ruled that it had jurisdiction to decide a case brought by Nicaragua charging that the United States violated international law by supporting the Contras in their effort to overthrow the Nicaragua government, the United States withdrew from the case and from the jurisdiction of the court.

Regarding the war on terrorism, there are interesting aspects of the US response to the September 2001 terrorist attacks. Under US leadership, the Security Council adopted a resolution requiring all states to suppress financing of terrorist operations and to deny shelter to terrorists. The Bush administration submitted two anti-terrorism treaties to the Senate which approved ratification. The United States is now a party to all 12 global treaties on terrorism, which require member states to prosecute or extradite persons accused of specific acts of violence. But it openly declines to treat captured members of Taliban forces as prisoners of war under the Third Geneva Convention. The United States also humiliated the Security Council by ignoring it when it decided to invade Afghanistan and Iraq.

The debate over double standards pursued by the US in its course of involvement in the international legal system is now nearly a century-old. A sizable section of US public opinion is of the view that Washington must rely on its power, resources and capabilities only rather than on international treaties to protect its interests and sovereignty. With the passage of time, the US resistance to law-governed multilateralism is on the rise and manifest both in its disregard of obligations imposed by treaties to which it is a party, and by a peculiar behaviour — shaping up treaties during negotiations only to reject them later.

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