2009 Digest of U.S. Practice in International Law

by Duncan Hollis

The State Department this week released the 2009 volume of its Digest on U.S. Practice in International Law.  Kudos to Elizabeth Wilcox for continuing the long tradition of making these sorts of materials publicly available; as I’ve noted previously, I find the whole Digest project–from Moore’s seminal series to the current annual volumes–to be an invaluable resource in doing international law research. 

For those interested, you can access the Digests here. In terms of what the 2009 digest contains, Harold Koh offered a veritable year-in-review of its contents.  Here’s a taste of what he had to say about it:

In 2009, as this volume reflects, a new United States administration, under the Presidency of Barack Obama, took office and pursued important initiatives demonstrating its respect for the rule of law. For instance, the United States has sought to ensure its detention operations, detainee prosecutions, and uses of force are all consistent with the laws of war. In one of his first actions after taking office, President Barack Obama unequivocally banned the use of torture as an instrument of U.S. policy and instructed that all interrogations of detainees be conducted in accordance with Common Article 3 of the Geneva Conventions and with the revised Army Field Manual. The executive branch also articulated a revised, narrower legal basis for its authority to detain individuals, based on the 2001 statutory Authorization for the Use of Military Force (“AUMF”), and made clear that its interpretation of the AUMF would be informed by the law of war. . . .

The United States also resumed our multilateral engagement in many different diplomatic fora, while remaining fully engaged in others. With the International Criminal Court, the United States participated for the first time as an observer in the Eighth Session of the Assembly of States Parties to the Rome Statute. With the Human Rights Council, the United States became a member of the Council for the first time. With the climate change negotiations, the United States engaged at the highest level, and President Obama and the leaders of key major economies reached consensus on the Copenhagen Accord in December 2009. The United States submitted a written statement and written comments to the International Court of Justice concerning the UN General Assembly’s request for an advisory opinion on the question “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” and I was privileged to deliver an oral statement of the U.S. views to the Court in December. . . .

In the area of private international law, the United States signed the United Nations Convention on Contracts for the International Carriage of Goods, Wholly or Partly by Sea (“Rotterdam Rules”) and the Hague Convention on Choice of Court Agreements (“Choice of Court Convention”) and participated actively in the negotiations concluding the Convention on Substantive Rules for Transfers of Intermediated Securities (“Geneva Securities Convention”).

The United States also pursued initiatives to renew the rule of law by reviving our treaty and agreement making process. For example, in 2009, we deposited or exchanged instruments of ratification to bring into force more than 70 advice and consent treaties, which is an all-time annual record for the United States. Among these treaties were crucial law of war instruments, tax treaties, an environmental treaty, and law enforcement treaties, including landmark agreements with the European Union on extradition and mutual legal assistance in criminal matters, which entered into force in early 2010. In addition, we negotiated a new treaty to replace the Treaty on the Reduction and Limitation of Strategic Offensive Arms (“START”), signed the UN Convention on the Rights of Persons with Disabilities—the first new human rights convention of the twenty-first century, and supported the negotiation of a new multilateral agreement to reduce mercury pollution. . . .


One Response

  1. I love how the US continues to pat itself on the back for permitting the interpretation of the AUMF to be “informed by” the laws of war.  That is, of course, America-speak for “we will ignore the laws of war when they are inconvenient, but still try to reap the PR benefits of mentioning them from time to time.”

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