Think Again

Think Again: International Law

Governments respect international law only when it suits their national interests. Don't expect that to change any time soon.

"Obama Will Respect International Law More Than Bush Did."

No. George W. Bush did not brush aside international law as casually as his critics claimed, and President Barack Obama's approach is likely to be surprisingly similar. The United States -- under the leadership of both the Republican and Democratic parties -- has taken a fairly consistent approach to international law over the decades, one that involves building legal regimes that serve U.S. interests and tearing down those that do not.

The bill of particulars against Bush seems long. He withdrew the Unites States from the Anti-Ballistic Missile (ABM) Treaty with Russia; "unsigned" the Rome Statute that created the International Criminal Court (ICC); invaded Iraq in violation of the U.N. Charter; authorized war-on-terror tactics in tension with human rights treaties and the Geneva Conventions; dragged his feet on a climate treaty; imposed a tariff on steel in violation of international trade law; stood by while a genocide took place in Sudan; and refused to sign a host of new and old treaties aimed at promoting human rights and limiting violence in war.

But there is less here than meets the eye. Bush acted within the law by withdrawing from the ABM treaty (which permitted withdrawal upon six months notice, a requirement he observed), and he had no obligation to maintain the U.S. signature on the Rome Statute (which lacked support from both political parties in the United States). Nonetheless, Bush provided valuable support to the ICC by agreeing to allow it to investigate crimes in Sudan. The invasion of Iraq did violate the U.N. Charter, but it also removed one of the world's worst international lawbreakers and vindicated the U.N. sanctions regime that Iraq had disregarded.

There was little political support for a climate treaty until the end of the Bush administration. When that support finally materialized, Bush signaled that he would go forward with such a treaty. In similar ways, Bush's war-on-terror tactics moderated over time, as the threat diminished. Bush had no obligation to intervene in Sudan -- indeed, an intervention without Security Council authorization, which would certainly have been blocked by China, would have been unlawful. Nor did he have an obligation to sign other human rights and law-of-war treaties that he disapproved of.

During his presidential campaign, Obama expressed support for the International Criminal Court and humanitarian intervention. In office, he has done nothing for the ICC and has stood by while the killing continues in Sudan. He has promised to close the detention facility at Guantánamo Bay; the problem, however, was not that the facility itself violated international law but that the detention methods practiced there (arguably) did so. These very same detention practices have continued in Iraq and Afghanistan.

Meanwhile, Obama has sought to give immunity to Bush-era interrogators -- another possible violation of international law, and certainly in tension with it. Bush's unlawful tariffs on steel are matched by the "buy American" provision in the stimulus bill signed by Obama and the tariffs that he has slapped on Chinese tires. Obama has provided some symbolic support for international law in a few ways, but where it counts -- obtaining Senate ratification of the Law of the Sea treaty (which Bush also supported) and numerous international human rights treaties -- he has expended no political capital. Don't expect this to change.

"If International Law Were Stronger, the World Would Be Safer."

Not necessarily. International law is only as strong as the states with an interest in upholding it. Ambitious schemes that seek to transcend countries' interests routinely fail. The 1928 Kellogg-Briand Pact outlawed war shortly before the worst war in world history. The League of Nations was bypassed and ignored. The United Nations has never lived up to its ambitions and has only proved effective for narrow projects after expectations were scaled down to a realistic level. The greatest achievement of international law -- the modern trade system institutionalized in the World Trade Organization -- depends for its vitality on the good faith of a handful of great powers relying on weak self-help remedies.

The challenge for governments is finding areas of international cooperation where interests converge enough that states are able to overcome mutual suspicion and commit themselves to complying with their obligations. Real problems, such as climate change, must await propitious international political conditions, which will often take longer than good policy and science indicate is optimal. Promoting international law for its own sake, in the hope that eventually countries will go along, has never been successful.

"International Law Is the Best Way to Protect Human Rights."

Wishful thinking. Academic research suggests that international human rights treaties have had little or no impact on the actual practices of states. The Genocide Convention has not prevented genocides; the Torture Convention has not stopped torture. The same can be said for the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and a host of treaties meant to advance the rights of women and children. States that already respect human rights join human rights treaties because doing so is costless for them. States that do not respect human rights simply ignore their treaty obligations.

The evidence shows that human rights are best in those states that are wealthiest, leading many scholars to speculate that the best way to promote human rights is to promote growth. This can be done through liberal trade and immigration policies, and perhaps (though this is controversial) carefully targeted aid that is conditioned on institutional reform. One simple step, unlikely to be taken, would be for Europe and the United States to eliminate domestic agricultural subsidies that reduce demand for agricultural exports from poor countries.

"Europeans Care More About International Law Than Americans Do."

Not really. This shibboleth reflects a number of mistakes. Because European integration rests on a series of highly successful treaties, many casual observers see Europeans as pro-international law. And when seeking international approval of new treaties they propose, Europeans themselves cite their experience as evidence that international law works. But unification of countries is not a new phenomenon -- the United States is the result of union as well -- and has little to do with the type of international law at issue in current debates, the kind of international law that involves all states around the world.

It's true that Europeans have been successful in recent years in placing many of their major concerns, such as human rights and climate change, on the international legal agenda. But the United States and other countries have also promoted treaties that they care about, especially on counterterrorism. Finally, Europe's foreign-policy agenda is more liberal than that of the United States, leading European countries to advance treaties with more liberal aims than those the United States has. These treaties -- again, those on human rights and climate change lead the list -- have received a great deal of attention in the United States among critics of U.S. foreign policy for that reason only. This has nothing to do with Europe's allegedly greater support of international law; it just reflects policy differences.

Meanwhile, Europeans have played hardball when it has suited them. On international trade, the European Union has taken positions in a range of disputes involving genetically modified organisms, beef hormones, and bananas that have placed it in violation of international trade law or nearly so. Most EU countries are on track to violate their commitments under the Kyoto Protocol. European enthusiasm for the ICC remains high, but major European countries -- unlike the United States -- have been reluctant to give the ICC free rein in Sudan. Just last year, the European Court of Justice told EU members that they must disregard an order issued by the Security Council because it violated European law. Disregarding an order by the Security Council violates the U.N. Charter, of course. The 1999 NATO military intervention in Kosovo also violated international law -- the Security Council did not approve it -- yet it had the enthusiastic participation of all the full European members of NATO, plus France. (And don't forget the 16 European countries that joined the United States in supporting military intervention in Iraq.)

Europeans, like Americans, use international law as an instrument to advance their interests. Where U.S. and European interests diverge, the countries act differently with respect to international law -- complying with, and promoting, those portions of it that advance their interest, while violating or applying narrow interpretations to those that don't.

"International Law Is a Worthy Goal."

Not at all. Some might argue that even if international law is not currently effective, improving it is nonetheless a worthwhile aspiration for the international community. But international law should be looked at as a worthy means, not an end in itself. In some circumstances, it can be useful to build international cooperation on key issues. But the view that international law is an end in itself -- which I have dubbed "global legalism" -- is based on a false picture of international relations and can lead to wasted time and effort devoted to constructing legal institutions that won't work. Although many academics are global legalists, state leaders, of all ideological persuasions, are not.

The Nuremberg trials -- ironically one of the sources of global legalism -- were thought necessary for punishing the Nazis and were surely justified, but they also violated international law, which at that time did not hold leaders criminally responsible for launching invasions of other countries or even for crimes against humanity. The illegal military intervention in Kosovo stopped ethnic cleansing and, for a time, the wars that racked the Balkans. Not all violations of international law are good, of course. But the tendency of global legalists to treat international law as a talisman, more often than not, interferes with the kinds of international cooperation that actually advance the global good.

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Think Again

Think Again: Realism

Amid war and recession, Americans are in a no-nonsense, matter-of-fact mood. But that, says a leading architect of George W. Bush's foreign policy, is no reason to adopt a misguided doctrine. 

"We're All Realists Now."

No. Pragmatists maybe, but not "realists." Barack Obama's election as U.S. president delighted many people, especially the self-described foreign-policy "realists" who accused his predecessor, George W. Bush, of denying reality in favor of dangerous idealism. Obama has praised the realpolitik of Bush's father, George H.W. Bush. And a White House official recently told the Wall Street Journal, "[Obama] has really kind of clicked with that old-school, end-of-the-Cold-War wise-men generation." The elder Bush's national security advisor, Brent Scowcroft, called Obama's election a rejection of the younger Bush "in favor of realism."

Of course foreign policy should be grounded in reality. Americans agree that foreign-policy goals should be achievable -- that the United States should match its ends with its means. What sensible person could argue with that? That is simply pragmatism. But "realism" as a doctrine (I'll spare you the quote marks henceforth) goes much further: In the words of one leading realist, the principal purpose of U.S. foreign policy should be "to manage relations between states" rather than "alter the nature of states."

Unquestionably, what makes realism seem so plausible today is skepticism about the war in Iraq and the belief that it was part of a crusade to "impose" democracy by force. I believe, to the contrary, that the purpose of the war was to remove a threat to national and international security. Whether the Iraq war was right or wrong, it was not about imposing democracy, and the decision to establish a representative government afterward was the most realistic option, compared with the alternatives of installing another dictator or prolonging the U.S. occupation. In Afghanistan, the same choice was made for the same reasons after the Taliban fell, and many realists not only supported that decision, but argued for putting even more effort into "nation-building."

This is not the place to reargue the Iraq war. So let's stipulate that the issue here is not whether to use military force to promote changes in the nature of states; it's about whether -- and how -- to promote such changes peacefully. On that issue there is a genuine debate between realists and their critics. And a desire for pragmatism should not be confused with a specific foreign-policy doctrine that minimizes the importance of change within states.

"Barack Obama Is a Realist."

Unclear. Critics of realism, like myself, do not think that a businesslike management of the "relations between states" should lead us to neglect issues regarding the "nature of states." In reality, the internal makeup of states has a huge effect on their external behavior -- so it must also be a significant consideration for U.S. foreign policy.

Judging by his own words, Obama seems to agree with this, and not the realist dogma. In Moscow, the U.S. president deliberately spoke over the heads of the Kremlin's leaders to tell Russians, "Governments which serve their own people survive and thrive; governments which serve only their own power do not." In Cairo, he stated, "Government of the people and by the people sets a single standard for all who would hold power." And in Ghana he was even clearer: "No person wants to live in a society where the rule of law gives way to the rule of brutality and bribery. That is not democracy; that is tyranny, and now is the time for it to end."

I like the sound of that, but some realists may not.

Nor do Obama's early actions display a doctrinaire realism. He is supporting democracy in Pakistan and, notably, in Iraq, where his policy looks forward and not back, keeping the United States engaged while pressing Iraqis to meet their responsibilities. On the other hand, his administration did not offer much support for the remarkable reform movement in Iran. Ostensibly, this was out of concern that reformers would be labeled American agents. But Iran's regime has applied that label anyway, and it's hard not to think that the administration's caution reflects a misplaced concern for the negotiations it hopes to undertake over Iran's nuclear program. Not that those negotiations aren't important, but they will succeed or fail based on the leverage the United States can muster. And this moment is an opportunity for the administration to increase its leverage.

Obama seems to be downplaying human rights in other places as well. The administration's eagerness to hit the "reset button" with Russia led a prominent group of Eastern Europeans, including former Czech President Vaclav Havel and former Polish President Lech Walesa, to remind Obama in an open letter that "our region suffered when the United States succumbed to 'realism.'" With China, too, where the United States' ability to influence internal developments is admittedly limited, the Obama administration has gone much further than necessary in stating that it won't let human rights interfere with bilateral cooperation.

So the jury is still out. But, hopefully, Obama and his team will prove to be realists in the true sense of the term -- addressing the nature of states and not ignoring the reality that democratic reform is a powerful force to advance U.S. interests.

"Foreign Policy Is About the National Interest."

Of course. But what is that? No one is against the national interest, but the realists and their critics differ significantly over what the national interest is. This debate is hardly new.

In the 1970s, the great controversy was over the policy of détente, which called for ignoring the inherent brutality of the Soviet regime in an effort to reach accommodation with it. An extreme example of this was U.S. President Gerald Ford's refusal to meet with Soviet dissident Alexander Solzhenitsyn in 1975. Critics of détente, such as President Ronald Reagan and Sen. Henry Jackson, did not oppose negotiations with the Soviets. But they argued that negotiations needed to be on much stiffer terms and accompanied by pressure for internal change.

During my time in the U.S. government, I've participated in many rounds of this debate. One of them was over whether to preserve the State Department's Bureau of Human Rights. Realists saw it as an annoying creation of Jimmy Carter's administration; others thought it was more realistic to maintain pressure on an issue of major importance in the competition with the Soviet Union. Similarly, in the 1980s, Reagan's promotion of democratic reform in the Philippines and South Korea was criticized not only by realists but even by Ambassador Jeane Kirkpatrick, more often labeled a neoconservative, who had argued prominently for working with authoritarian regimes. And again, after the fall of the Berlin Wall, the realists were generally opposed to NATO membership for the new Eastern European democracies and noticeably reluctant to support the independence movements in Ukraine and other Soviet republics.

Today, it's hard to understand why realists remain so confident about their doctrine, given that changes in the nature of states have benefited the U.S. national interest in so many instances -- not only the peaceful collapse of the Soviet empire and the end of apartheid in South Africa, but also with the many transitions from dictatorship to democracy that have deepened security in almost every region of the world. Moreover, there are so many other instances where a disregard for such issues has set back the national interest.

Indeed, many of the most significant foreign-policy achievements of the elder Bush's presidency -- liberating Kuwait, unifying a democratic Germany, restoring democracy in Panama, and rescuing Somalia from starvation -- were the result of bold actions with a moral dimension concerning the nature of states. Scowcroft deserves much credit for the first of these, though former National Security Advisor Zbigniew Brzezinski, his fellow realist, called it "naive" and an "overreaction."

At the same time, some of that administration's most regrettable failures -- the inaction in the face of Saddam Hussein's slaughter of Shiite Iraqis after the Gulf War, the failure to deal with a bloody war in Yugoslavia, the perceived opposition to Ukrainian independence, and the initial reluctance to embrace Boris Yeltsin, the reform-minded Russian president -- were manifestations of a rigid realism.

Because I agreed with Scowcroft about the Gulf War and agreed with Brzezinski in his support for NATO enlargement and intervention in Bosnia, I don't know whether that makes me a realist or makes them ideologues. But I do know that ignoring the nature of states is to ignore a fundamental reality that has a huge bearing on the U.S. national interest. To do so is not realistic. It is dogmatic or even ideological.

"Realism Means Dealing with Regimes You Dislike."

Yes. But we can push reform, too. After all, that's what Reagan did. He conducted serious negotiations with the Soviet Union that achieved real breakthroughs, while also characterizing the regime as an "evil empire," forcibly contesting its foreign policies and pushing hard for internal reforms. Yes, Reagan softened his approach on human rights over time, but that reflected real Soviet progress on the issue, not U.S. indifference. And ultimately, it was changes inside the Soviet empire, not arms-control talks, that ended the Cold War.

U.S. foreign policy does indeed have multiple goals that must be balanced, but promoting reform is often one of them. Brutal regimes will not behave better if the United States speaks nicely about them. In fact, the perception of U.S. weakness in supporting its friends is a great disadvantage when negotiating with regimes like those in North Korea and Iran that are quick to perceive vulnerability. These states will negotiate -- if they do -- when they see it in their interest, not because the United States soft-pedals its differences. And eliciting this cooperation requires leverage. For example, Libyan leader Muammar al-Qaddafi gave up his nuclear weapons program not because the Bush administration spoke nicely to him, but because he feared American will. Sometimes, the pressure for change that comes from a country's own people or elites might be the United States' best source of leverage on such regimes.

Pushing for changes in the nature of states gets complicated the more the United States has genuine common interests with them -- as Americans do, for example, with Egypt on Arab-Israeli peace or with China on managing the global economy. Issues of reform should be approached more quietly sometimes, but should not be abandoned. That would be disheartening to reformers who are often instrumental in bringing about the changes the United States seeks through engaging their governments.

"America Can't Impose Its Values on Others."

That sounds familiar. And now we hear it about the Arab world. When Reagan and Secretary of State George Shultz were pushing for democratic reform in South Korea, many Korea experts warned that the country never had a democracy and wasn't ready for one. Back then, realists cited the idea of "Asian values" -- claiming that Asians were inherently different, preferring autocracy to democracy. Amid some similar claims about the Arab world today, it's useful to recall how the United States successfully pushed for reform in the Philippines, and ultimately a peaceful democratic transition, without "imposing" its values.

After the 1983 murder of Filipino opposition leader Benigno Aquino, the Reagan administration began publicly pressing President Ferdinand Marcos to reform. Realists argued that this would lead to something worse, as it had done in Iran just a few years before. As assistant secretary of state, I argued that the Philippines' communist insurgency was the greater threat and that democratic reform was the best hope to defeat it. Once it became clear that the United States wouldn't oppose change, democratic reformers were emboldened. In 1986, a unified opposition won an open presidential election, and when Marcos tried to nullify it, a combination of U.S. pressure and Filipino "people power" forced him to step down. That was not "imposing American values" -- it was putting America's thumb on the reform side of the scale.

It is not uncommon to hear realists today arguing that Muslims don't really want U.S. support for democracy, especially after the Iraq war. And yet, when Obama announced, during his important speech at Cairo University, that he would address democracy, his audience applauded before he could say another word. His three short paragraphs on democracy were interrupted twice more by applause -- and then by someone shouting, "Barack Obama, we love you!" to yet more applause. Although the president spoke of "controversy" surrounding the promotion of democracy, his Arab audience welcomed this allegedly controversial subject with enthusiasm.

That a large audience in the heart of the Arab world is so eager to hear the U.S. president champion democracy is an important fact that any realistic foreign policy must consider. The Obama administration's temptation to distance itself from its predecessor's policies is understandable, but this shouldn't mean abandoning the promotion of democratic reform.

"Promoting Democracy Is Dangerously Destabilizing."

Not necessarily. Elections, even flawed ones, can be positive catalysts for change in autocratic states, as we saw in the Marcos case and during the recent events in Iran. It is true that elections are no panacea: The Bush administration was frustrated when terrorist groups such as Hamas and Hezbollah gained power through the ballot box. Elections alone don't automatically produce the institutions needed to protect liberty and foster tolerance. But if there is risk in promoting democratic reform, there is also risk in doing nothing, which hurts America's reputation as people see the United States acquiescing in their oppression.

In promoting reform, it's important to keep in mind the admonition to "do no harm." The collapse of the shah's regime in Iran led to something worse for Iranians and for U.S. interests. So in the Arab world, the United States must steer a course between two dangers: on the one hand, that extremists will exploit the opportunities of a more open society and, on the other, that U.S. support for Arab dictators will generate hostility toward America. For decades, successive U.S. administrations have preferred stability over democracy in the Arab world. We have seen the result: a superficial stability that has encouraged the growth of extremism, terrorism, and anti-Americanism. When all opposition is suppressed, the forces of change go underground -- and that is where radicalism thrives. Jailing a democratic reformer like Ayman Nour in Egypt is not a way to fight extremism.

The goal should not be revolution, but rather evolutionary change. That's the best chance for true long-term stability. Most of all, when opportunities for genuine reform open up, as is happening now not only in Iraq and Lebanon but also in Morocco and elsewhere, the United States should give reformers all the support that it can. Of course, the United States will depend on some Arab autocrats to help promote a peaceful settlement of Arab-Israeli issues -- issues that constitute another, perhaps even greater, source of anti-Americanism. But the role those leaders play in any peace process will turn on hard calculations of their own self-interest, not the stance the United States takes toward reform.

"Paul Wolfowitz Is a Utopian."

No, I'm just being realistic. I've been called many things, and utopian is hardly the worst. Ironically, while "utopia" is Greek for "nowhere," almost everywhere you look today you find people who share a belief in democracy. In Eastern Europe, the Iron Curtain no longer stands because true realists -- "democratic realists" -- confronted the true nature of the Soviet threat. Across Asia, hundreds of millions of people live under free governments in places where there were none just 70 years ago. In Africa, accountable government is increasingly seen as the key to better governance and thus to economic progress. And in Latin America, the answer to the danger of populist dictatorships is not a return to right-wing autocrats but rather support for the institutions of liberal democracy.

Today we even see the seeds of democracy in Iraq, of all places, which is grappling with its enormous challenges through democratic means. It was refreshing to hear an Iraqi politician recently say that he would deal with a disputed election outcome by negotiation. That is something new in the Arab world, and the message is not lost on Iraq's neighbors. The Obama administration, too, appears to have taken note of this important development.

There are plenty of reasons to be cautious about the still-fragile situation in Iraq and no reason to declare success prematurely. But we should not let an excess of caution -- or a desire to see past positions vindicated -- blind us to the positive realities that are appearing on the ground there.

Obama often quotes Martin Luther King Jr.'s statement that "the arc of the moral universe is long, but it bends toward justice." That arc can be long indeed. It was many years after the Korean War before South Korea began to resemble the brilliant success story of today. And the arc in the Middle East may be even longer, but if it reaches justice and true stability, the world will be safer as a result. And that achievement will be thanks to leaders who pursue that truer realism -- a democratic realism.

Want to Know More?

German-American scholar Hans Morgenthau was among the first to put realism -- a philosophy that puts national interests ahead of moral concerns --at the heart of U.S. foreign policy. His book Politics Among Nations: The Struggle for Power and Peace (New York: A. A. Knopf, 1948) set the stage for much of the Cold War realpolitik that followed. Another pioneer of realism is Henry Kissinger, U.S. secretary of state in the 1970s and author of A World Restored: Metternich, Castlereagh and the Problems of Peace, 1812-22 (London: Weidenfeld & Nicolson, 1957). The work, originally Kissinger's Harvard University Ph.D. thesis, celebrates two European politicians for upholding their country's interests at a time of great upheaval.

More recently, political scientists John J. Mearsheimer and Stephen M. Walt, the latter a ForeignPolicy.com blogger, have emerged to offer the liberal version of Kissingerian realpolitik. The Tragedy of Great Power Politics, by Mearsheimer (New York: Norton, 2001), paints a picture of a post-Cold War world where conflict between states is a constant. In Taming American Power: The Global Response to U.S. Primacy (New York: Norton, 2005), Walt explains why America is perceived as a threat in the post-Cold War era, and why the United States should tread more lightly abroad.

Neoconservatism arose in the 1970s as a critique of realism, and Johns Hopkins University scholar Francis Fukuyama's controversial essay on the Iraq war, "The Neoconservative Moment" (The National Interest, Summer 2004), may have been when the realist backlash began. Marina Ottaway and Thomas Carothers address some of the questions about whether democracy and the Arab world can mix in "Think Again: Middle East Democracy" (Foreign Policy, November/December 2004).

Journalist Robert D. Kaplan argues that geographic determinism is at the core of realism in "The Revenge of Geography" (Foreign Policy, May/June 2009). And in ForeignPolicy.com's "Seven Questions: Paul Wolfowitz" (June 2008), the interviewee offers practical suggestions for ousting Zimbabwean dictator Robert Mugabe. In "Obama and the Freedom Agenda" (Wall Street Journal, June 3, 2009), Wolfowitz urges U.S. President Barack Obama to push human rights in the Middle East.

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