The Protection of American Sovereignty

Bob Dole Addresses the US Senate Ahead of a Vote on the Disability Treaty.

The United States Senate last week rejected a United Nations-backed treaty that sought to protect the rights of disabled persons around the world. The treaty, known as the Convention on the Rights of Persons with Disabilities, essentially requires other countries to institute policies similar to those already in place in the United States under the Americans with Disabilities Act. The Convention, which has been signed by more than 150 countries and has been ratified by 126, including Britain, France, Germany, China, and Russia, failed to receive the two-thirds majority necessary to ratify a treaty in the United States Senate.

Opposition to the treaty came primary from Senate Republicans, who claimed that the treaty infringed on American sovereignty. While the outcome of the vote was not entirely surprising, there had been some hope that the high profile support of key Senate Republicans, including Senator John McCain and former Senate majority leader Bob Dole, would convince enough Republicans to support the treaty to ensure its passage. The treaty also divided conservative groups, with the Heritage Foundation and the Cato Institute both opposing the treaty while the US Chamber of Commerce supported it.

Several bloggers have already examined the international implications of the Senate’s rejection of the treaty. At Foreign Affairs, David Bosco asserted that the US position makes little difference globally, and that US rejection may ironically increase the number of countries ratifying the agreement, as some holdouts seek to illustrate that they are more progressive than the United States on this issue. Erik Voeten at the Monkey Cage reaches a similar conclusion.

Those opposed to the treaty cast their opposition primarily in terms of the need to protect American sovereignty. This opposition was captured by Daniel Drezner, who concluded that “critics don’t like the treaty because….it’s a treaty.”

But what does this mean? What is sovereignty and why is it important?

The concept of sovereignty is central to international relations. It is simplest sense, sovereignty refers to the exercise of supreme decision making authority over a given piece of territory. More broadly, sovereignty encompasses both a domestic and an international element. At the domestic level, sovereignty refers to the control or authority over space exercised by the state. Importantly, not all states are equally capable of exercising this authority. Some states, like Somalia throughout much of the 1990s, was controlled not by the national government but by various competing militia groups. In this case, we characterize Somalia’s sovereignty as “juridical” (or legal), rather than actual.

Sovereignty also has an external or international component, which is usually embodied in the mutual recognition of states and the ability of one state to prevent another from interfering in its domestic politics.

In the case of the Disability Rights Treaty, Senate Republicans were arguing that the treaty would have undermined American sovereignty by requiring US law to comply with international dictates. In practice, however, this was unlikely to be the case, as US law was already in compliance with the treaty—indeed, as noted above, the ADA was the model for the treaty itself.

So what do you think? Did the Convention on the Rights of Persons with Disabilities represent a threat to American sovereignty? Or were Senate Republicans just playing politics? Take the poll below or leave a comment and let us know what you think.

Cyberwarfare and International Relations

Iranian President Ahmadinejad visits a uranium enrichment plant near Natanz where the Stuxnet virus infected computers and damaged centrifuges.

Are advances in “cyberwarfare” moving faster than states’ ability to manage them?  Two New York Times articles this week raise some interesting–and at times disturbing–questions about the implications of cyberwarfare for national security and international relations.  The United States and Israel have used cyberattacks over the past few years in an effort to cripple Iran’s nuclear program, but the long term consequences of relying on such tools are unclear.  In an article entitled “Mutually Assured Cyberdestruction?” New York Times columnist David Sanger raises the following questions:

“Does the United States want to legitimize the use of cyberweapons as a covert tool? Or is it something we want to hold in reserve for extreme cases? Will we reach the point — as we did with chemical weapons, and the rest of the world did with land mines — that we want treaties to ban their use? Or is that exactly the wrong analogy, in a world in which young hackers, maybe working on their own or maybe hired by the Chinese People’s Liberation Army or the Russian mob, can launch attacks themselves?”  As Sanger notes, treaties–a key source of international law–have been used to codify opposition to chemical weapons and land mines.  More broadly, international norms (generally unwritten expectations about appropriate behavior) have arisen that prohibit the use of weapons of mass destruction–chemical, biological, and nuclear.  Could treaties and norms also be used to manage the spread and utilization of cyberweapons?

Sanger compares the cyberwarfare “learning period” in which we find ourselves to the early years of the Cold War, when the world was grappling with the dangers and utility of nuclear weapons: “It took years after the United States dropped the atomic bomb on Hiroshima for the nation to develop a common national understanding of when and how to use a weapon of such magnitude. Not until after the Cuban Missile Crisis, 50 years ago this October, did a consensus emerge that the weapon was too terrible ever to employ again, save as a deterrent and a weapon of last resort.”  This may seem like hyperbole, but Sanger quotes Defense Secretary Leon Panetta as warning that the “next Pearl Harbor we confront could very well be a cyberattack that cripples our power systems, our grid, our security systems, our financial systems.”  A second recent NY Times article, entitled “Expert Issues a Cyberwar Warning,” notes that military contractors, including Northrop Grumman, Lockheed Martin, and Raytheon, are already developing devastating computer viruses for different U.S. intelligence agencies.  Are we approaching the point where we need to begin thinking of deterrence in the cyber domain, as we have in the nuclear arena?

What do you think?  Given their destructive potential, should cyberweapons be categorized alongside nuclear, biological, and chemical weapons as weapons of mass destruction?   Should their use be banned by international treaty?  Or are cyberweapons a way to accomplish important missions without the bloodshed and “collateral damage” of conventional weaponry?

Fairness, International Law, and Crimes Against Humanity

Ali Hassan al-Majid, better known as “Chemical Ali” was sentenced to death by an Iraqi court last week. The sentence—death by hanging—was carried out on Monday.

Checmical Ali playing card issued by U.S. military forces in 2003

Ali was convicted of crimes against humanity for his role in a series of chemical weapons attacks against Kurds in northern Iraq under regime of Saddam Hussein in the 198s. The campaign resulted in the destruction of an estimated 4,000 Kurdish villages, the death of more than 180,000 and deportation of an estimated 1.5 million Kurds. His willingness to use a number of chemical weapons, including mustard gas, sarin and VX nerve agents, earned him the nickname “Chemical Ali,” though Kurds often referred to him as the “Butcher of Kurdistan.” Ali’s sentence and execution marked the highest level execution of a former Hussein-regime official since the execution of Saddam Hussein in 2006.

Crimes against humanity were defined during the Nuremburg Trials at the end of World War II as “Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” The definition was later clarified by an Explanatory Memorandum to the Rome Statute of the International Criminal Court (ICC), which explained that crimes against humanity are

particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder; extermination; torture; rape and political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.

The trial of perpetrators for crimes against humanity has often been difficult and controversial. Accusations that the Sudanese government has engaged in crimes against humanity in operations in Darfur, for example, have generated tension between the ICC and the African Union. Similarly, the trials of individuals involved in the Rwandan genocide has led to diplomatic standoffs between the post-genocide Rwandan government, the United Nations, and the government of France.

The challenge often centers on accusations of politically-motivated trials and the dangers of “victor’s justice,” where the rules of war (and more generally of right and wrong) depend on the nationality of the winner. Critics of the U.S. anti-terrorism policy often claim that the United States is engaged in victor’s justice in its decision to use water boarding against individuals with suspected links to terrorism. This claim is based on the decision of the U.S. government to try (and ultimately execute) Japanese soldiers after World War II on charges of war crimes for water boarding American soldiers.

Clearly, the situation in Iraq is different. But the case does beg the question of fairness in international law. We all know that “to the victor goes the spoils” and that “history is written by the victor.” But does international law allow for equity and fairness that are the foundation for contemporary legal systems?