Thanks to Karen, Dan, and Clara for inviting me to guest
blog here. This year I’ve devoted much of my intellectual energy to teaching,
and I plan to share some of the ways that legal history has enriched my classes
on the history of U.S. foreign relations. But I thought I’d start things off
with a recent political controversy that raised parallels to some of my
research on international law and U.S. foreign relations in the early twentieth
century.
In January the press got hold of a
leaked DOJ white paper written to justify the use of lethal force against
U.S. citizens abroad: in other words, drone assassinations. Questions of due
process and constitutional rights dominated the publicity that followed, while
opposing sides debated the policy’s morality and political wisdom
Recently, legal
scholar Rosa Brooks
has highlighted a less noticed yet no less
important matter: the paper’s endorsement of “a radical assault on traditional
legal concepts of sovereignty.” The DOJ paper claims that overseas assassinations
do not violate “international legal principles of sovereignty and neutrality”
so long as the host nation either gives its consent or is determined to be
“unable or unwilling to suppress the threat posed by the individual targeted.”
As Brooks points out, this reasoning is circular: presumably if a foreign
country refused to give its assent to a drone strike, it would by definition be
“unable or unwilling.” In effect, sovereignty disappears as a check on power, undermining
international stability.
Brooks turns to recent history to explain this development.
She blames humanitarian “crusaders” for crucifying sovereignty on the cross of
individual human rights. Advocates of the “Responsibility to Protect” have
called for the use of force in order to preempt genocide and rights violations.
But by condoning violence to prevent abuses, Brooks argues, “human rights norms
have done as much to erode traditional ideas of sovereignty as have more
U.S.-centric theories of counterterrorism.”
When I read the white paper, however, its arrogation of the
power to override the sovereignty of “unable or unwilling” states suggested to
me not so much the recent history of humanitarian intervention, but rather a
much older assertion of the right to intervene. In his 1904
“Corollary” tothe Monroe Doctrine, Theodore Roosevelt justified the use of force whenever
Caribbean states demonstrated an “inability or unwillingness to do justice” to
the rights of foreigners. This similarity of phrasing is no accident. The
Roosevelt Corollary and current drone policy both represent legal refractions
of changing imperial needs.
Roosevelt’s America had recently become a globally-recognized
“Great Power.” As such it faced new imperial demands. With formal colonies in
Puerto Rico and the Philippines, and informal ones in Cuba and Panama, control
of the Caribbean assumed increased importance for U.S. policymakers. In the
words of Roosevelt’s secretary of state, Elihu Root: “The inevitable result of our building the canal must be
to require us to police the surrounding premises.” But oft-unscrupulous foreign
businessmen complicated this task when they clashed with the region's of-unstable regimes. Roosevelt fretted that European states (Germany in particular)
might intervene on behalf of their nationals. His solution was to take on the
responsibility for preventing such conflicts by ensuring “order” in the
region’s countries. In practice this meant a combination of financial control
(“dollar diplomacy”) backed up by marines. (See
here and
here for more.)
New
problems of empire thus required new solutions. Interestingly, the Corollary
framed its legal justifications in internationalist terms. It begins with a
celebration of law and envisions a future where international law, having achieved
the institutional apparatus of domestic law, has made war unnecessary. But because
this condition has not yet been achieved, Roosevelt argues, it remains
incumbent for the “civilized” nations to exercise an “international police
power.” Without referring to the United States per se, these paragraphs outline a vision of world order in which
the rights of states are conditioned upon the fulfillment of their duties: in
this case, the duty to maintain stability and uphold the rights of foreigners.
“Chronic wrongdoing, or an impotence which results in a general loosening of
the ties of civilized society…,” Roosevelt warned, would “ultimately require
intervention by some civilized nation.” As the preeminent power in the Western
Hemisphere, Roosevelt concluded, the United States would take responsibility
for exercising “police power” in that region. The sovereignty of states like
Haiti, Venezuela, and Nicaragua must ultimately give way to the rights of
American investors, the needs of American security, and the interests of
international society.
The
white paper reflects a similar need to devise a policy for a changing imperial
order. This time concerns are global rather than regional, and a lack of order
is problematic not because it threatens foreign investment or promotes European
intervention, but because gaps in state control provide hiding places for Al-Qaeda.
Nevertheless, the logic is the same: American security demands that other
states maintain their internal order,
and their sovereignty is contingent upon maintaining the kind of order that US
deems important. Does this constitute “a radical assault on traditional
legal concepts of sovereignty,” as Brooks would have it? An assault, certainly,
but a longer historical view counsels caution in deeming anything to be truly “traditional.”
What
this history should tell us about the nature of international law I hope to
address in a later post…
