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Digest of United States Practice in International Law 2011 |
This volume provides a historical record of developments occurring during calendar year 2011, when the State Department's Office of the Legal Adviser marked its 80th birthday since its creation as a statutory entity.1 For the first time, the State Department is publishing the official version of the Digest exclusively on-line. By publishing the Digest on-line, we seek to make U.S. views on international law more quickly and readily accessible to our counterparts in other governments and international organizations, scholars, students, and other users, both within the United States and around the world.
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 UN 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 Digest.
In our 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 our 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 our actions-even when conducted out of public view-comply with our 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 our values and the rule of law in our detention and interrogation policies with regard to terrorism suspects, including pursuing prosecution of detainees through Article III courts and reformed military commissions.
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 our 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 our long-standing policy to recognize no state as having sovereignty over Jerusalem as a crucial part of our efforts to further the Middle East peace process.
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 UN 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.
We continued our 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 UN Commission on International Trade Law, which adopted a revised model law on public procurement and a judicial deskbook on cross-border insolvency in 2011.
In the area of human rights, the United States continued its active participation in UN 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 our first Universal Periodic Review at the Human Rights Council. The United States also submitted its Fourth Periodic Report to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights. Our 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 UN General Assembly resolution introduced by the United States on women's political participation further exemplified the U.S. commitment to promoting human rights.
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 UN 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 CÃ'´te 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. |
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