The Election and International Law: Silence May Be Golden

by Peter Spiro

Let’s just say international law was not a fulcrum in last night’s debate. It’s not like the topic was being discriminated against — many important topics were ignored.  (Among them the Eurozone crisis, climate change, cyberwar, NATO, anything much of Asia beyond China, Mexico or Canada.)  Bob Scheiffer asked a question about drones, which Romney answered by agreeing with the Obama approach and which Obama answered not at all. The words “international law” were actually uttered by Obama in the context of “atrocities” committed by Iran, this after Romney suggested, somewhat implausibly, that Ahmadinejad be indicted for genocide. Strike a blow for universal jurisdiction! The only mention of the United Nations was an oblique one by Romney, favorably referencing a group of Arab scholars “organized” under its auspices.

Nor has international law made even cameo appearances elsewhere in the campaign. (Perhaps not systematic evidence, but there has yet to be a single post here on the subject, with only two weeks left to go.) Nothing about Law of the Sea or other international treaties, nothing much about Guantanamo and counter-terrorism policies, nothing much about the use of drones.

But things could be worse. International law has been Republican red meat in past campaigns. In the second debate between George W. Bush and John Kerry in October 2004, for instance, Bush took swipes at a range of international institutions. On the Kyoto Protocol: “It’s one of these deals where, in order to be popular in the halls of Europe, you sign a treaty. But I thought it would cost a lot — I think there’s a better way to do it.” On the International Criminal Court: “I made a decision not to join the International Criminal Court in The Hague, which is where our troops could be brought to — brought in front of a judge, an unaccounted [sic] judge.” And then there was the “global test” jab against Kerry and UN Security Council authorization for the use of force: “That’s the kind of mindset that said, ‘Let’s keep it at the United Nations and hope things go well.’”

So at least no one is bashing international law this time around. (Not that sovereigntists haven’t been expanding their target list, with the arms trade and disability conventions as new additions.) If Romney didn’t exactly trumpet the virtues of international law last night, some see a pivot away from the party’s anti-internationalists. The New Yorker’s John Cassidy describes a lonely John Bolton :

The hirsute and somewhat elderly gent keeling over in the G.O.P. green room was John Bolton, the Bush Administration hard-liner who, in 2005 and 2006, spent a year and a half camped out on the East Side trying to insult as many U.N. officials (and foreigners in general) as he could. In reaction to questions about why Romney had enlisted head cases like Bolton to his foreign-policy team, his flacks frequently pointed to the presence of less fearsome figures, such as Robert Zoellick, the former head of the World Bank. But who knew that Romney had also enlisted Katrina vanden Heuvel and Kofi Annan as advisers? Not I, anyway.

Romney could always pivot back if elected, so obviously there are no guarantees in his campaign agnosticism. But I sort of doubt it (or at least I sort of doubt he would make it a central agenda item, in the way that GWB did). President Obama hasn’t exactly been trumpeting international law, either, but as a Democrat there’s no percentage in it. A second Obama Administration would surely be better for those who see a national interest in bringing the US into line with international law. But the decline of IL as campaign-trail whipping post bodes well either way.

http://opiniojuris.org/2012/10/23/the-election-and-international-law-silence-may-be-golden/

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