US can no longer ride for free on treaties of choice
Irony of ironies. The US, which under President George W. Bush 'unsigned' its membership of the International Criminal Court (ICC), is now emerging as the behind-the-scenes flag-bearer. That, after it waged a ferocious campaign to persuade other countries to promise to exempt the US from future prosecution, on pain of having military aid cut off.
The country has a long history of refusing to ratify treaties - the League of Nations for one - or just forgetting about them, as it did with the Genocide Convention for 40 years, or contravening them blatantly - as it has recently with the Convention Against Torture, whose ratification president Ronald Reagan steered through the Senate.
Yet, last week, it fought a lone battle at the UN Security Council which, in effect, was pro-ICC: it refused to vote for a watered-down version of the resolution on Sudan, because it dropped support for the recent decision of the ICC's chief prosecutor to indict Sudan's president.
For two years now, Washington has been quietly supporting this legal pressure on Sudan, with the ICC announcing one prosecution after another. It also didn't get its way when it launched prosecutions in the Congo and Uganda.
In 2002, the US vetoed a resolution extending the UN peacekeeping mission in Bosnia because at first the Security Council would not promise that US troops should be granted immunity from prosecution by the ICC. Later, the Security Council compromised and gave the US a one-year exemption. But, under European pressure, the exemption was not renewed and the US appeared to quietly accept that.
Americans like to regard themselves as law abiding when it comes to solemn undertakings. Yet, historically, America had little compunction about breaking agreements with native American tribes. And, today, its flagrant disregard for the Geneva Conventions and the UN Torture Convention remind the world of its propensity for contempt.
In post-war times, the US has failed to ratify three important conventions - on the Rights of the Child, on the Elimination of All Forms of Discrimination against Women, and the International Covenant of Economic, Social and Cultural Rights.
The US Senate overrode the Clinton administration's wish to ratify the Comprehensive Nuclear Test Ban Treaty. However, the US continues to participate selectively and even funds its International Monitoring System, which tracks fallout from nuclear tests. In short, it works to constrict other countries while putting itself outside the same discipline.
With the Kyoto Protocol on global warming and the Law of the Sea Treaty, Antonia Chayes, a professor at the Fletcher School of Diplomacy, at Tufts University, says that 'America appears to others as a free rider, benefiting from the terms negotiated in international agreements without incurring the costs of adherence'.
America may be the worst of the western nations but, from time to time, the Europeans and Japanese have done the same - look at the Norwegian and Japanese attitude to the internationally approved limits on whaling. Countries governed by sharia law have also carved out important exemptions from the human rights treaties they sign.
Outside the disarmament and human rights areas, American treaty compliance is good. It has an admirable record on enforcing environmental treaties, especially those concerning wildlife and wild fauna and flora.
International treaties are important. They become shared principles of behaviour, and an overwhelming majority of nations are reasonably good at implanting them. But, for the creation of a world that is a world of laws, not of men, it is going to need a more determined US leadership.
Next year, there will be negotiations to define crimes of aggression, with the aim of incorporating them in the mandate of the ICC. The US should be there, putting its shoulder to the wheel.
Jonathan Power is a London-based journalist
