American foreign policy ideology and the rule of international law: Contesting power through the International Criminal Court (original) (raw)

American foreign policy ideology and the rule of international law: Contesting power through the International Criminal Court

American engagement with international law (IL) is regularly criticised as fraught with contradiction and distorted by beliefs in “exceptionalism.” That raises a puzzling question: Why is American international legal policy framed by commitment to the “rule of IL” when this systematically provides a benchmark for challenging the legitimacy of American global power? This thesis argues that the very meaning of the rule of IL is contested according to competing foreign policy ideologies: between American policymakers and their global counterparts, and among American policymakers themselves. Opposition to US legal policy has been structured by forms of “legalism,” as a set of beliefs that law consists of non-instrumental rules, and that the international legal system should be developed by analogy with municipal law. In contrast, American legal policymakers receive IL through competing ideologies that correspond with divisions evident in both legal scholarship and diplomatic history. An internationalist-nationalist jurisdictional dimension intersects with a liberal-illiberal values dimension to form four ideal type conceptions of the rule of IL: Liberal Internationalism, Illiberal Internationalism, Liberal Nationalism and Illiberal Nationalism. These ideal types, including legalism, are applied to reinterpret the classic formulation of the rule of law comprised of three elements which, when translated to the global level, are concerned with: developing non-arbitrary global governance; defining equality under IL; and the ordering of international legal power. The model is tested through a longitudinal case study of the International Criminal Court to demonstrate that American policy decision-making was structured by the theorised conceptions of IL, rather than by tactical compromises between “law” and “politics”. It is concluded that foreign policy ideology sets hard limits on the ability of the US to reach consensus on rule of IL ideals with even its closest allies.

American Foreign Policy Ideology and the International Rule of Law

American Foreign Policy Ideology and the International Rule of Law, 2019

American engagement with international law has long been framed by commitment to the 'international rule of law' that persists even across divergent political and historical eras. Yet, despite appeals to legal ideals, American international law policy is consistently criticised as fraught with contradiction and distorted by beliefs in 'exceptionalism'. These contested claims of fidelity to law are the subject of this book: what does the 'international rule of law' mean for American legal policymakers even as they advocate competing commitments to international legal order? Answers are found in extensive evidence that American policymakers receive international law through established foreign policy ideologies that correspond with divisions in both legal scholarship and diplomatic history. Using the case of the International Criminal Court, the book demonstrates that the very meaning of the international rule of law is structured by competing ideological beliefs; between American policymakers and global counterparts, and among American policymakers themselves.

The Decline of International Law as a Normative Ideal

Victoria University of Wellington Law Review

International law was integral to the rise in power of the United States and has been central to the operation of world politics during the period in which the United States has been the dominant state. This article draws on the theory of International Law as Ideology to explain the manner in which the ideal of international law as politically neutral has served as a rhetorical fulcrum. The theory also offers a framework within which to perceive and assess the significance of an apparent sidelining of the ideal in global politics, including, notably, by the United States. While reduced use of the ideology of international law and introduction of the term "rules-based international order" or "rules-based…

UNITED STATES HEGEMONY AND THE FOUNDATIONS OF INTERNATIONAL LAW

The foundations of international law have been shaped by successive hegemonic powers throughout history. This book examines whether the current predominance of the United States is leading to foundational change in the international legal system. A range of leading scholars in international law and international relations consider six foundational areas that could be undergoing change, including international community, sovereign equality, the law governing the use of force, and compliance. The authors demonstrate that the effects of US predominance on the foundations of international law are real, but also intensely complex. This complexity is due, in part, to a multitude of actors exercising influential roles. And it is also due to the continued vitality and remaining functionality of the international legal system itself. This system limits the influence of individual States, while stretching and bending in response to the changing geopolitics of our time.

Ideological Values and Norm Contestation in the ICC: The Afghanistan Investigation and American Opposition to Article 12(2)(a) Jurisdiction

Tracing Value Change in the International Legal Order: Perspectives from Legal and Political Science Tracing Value Change in the International Legal Order: Perspectives from Legal and Political Science, 2023

International law is constantly navigating the tension between preserving the status quo and adapting to new exigencies. But when and how do such adaptation processes give way to a more profound transformation, if not a crisis of international law? To address the question of how attacks on the international legal order are changing the value orientation of international law, this book brings together scholars of international law and international relations. Chapter 11 by Malcolm Jorgensen assesses the effect of various contestations of the norms of legal accountability and anti-impunity for which the ICC is the focal institution. Jorgensen focuses on the more recent contestations by the United States, notably its opposition to ICC jurisdiction over nationals of non-parties in the Afghanistan investigation. He identifies foreign policy preferences of the US as a primary driver of change in the accountability value. He examines alternative conceptions of the relationship between sovereignty and accountability in the global legal order, which continue to be structured by competing ideological beliefs, between American policymakers and global counterparts and among American policymakers themselves. Overall, he identifies possible signs that value change is already underway concerning the ICC and the value of accountability.

The Imperial Over-Stretch of International Law

AJIL Unbound

In presenting the international law community with a call to action in defense of the liberal international order against a trend towards “authoritarian international law,” Tom Ginsburg prompts us to assess the systemic dynamics at play in the contemporary international legal order. In doing so, we should be cautious about assuming that the consequences for international law of any particular actor will be positive or otherwise. A couple of decades ago even American international lawyers were concerned about what they perceived to be the threat posed to international law by the United States as global hegemon. And yet from today's vantage point, it seems that the imperial actor during the post-Cold War period may not have been the United States so much as transnational civil society. The very openness of the system of international law that enables both democratic and authoritarian regimes to promote norms reflective of their policy preferences has also enabled civil society to ...

Challenging sovereignty? The USA and the establishment of the International Criminal Court

Ethics & Global Politics, 2009

Does the establishment of a permanent International War Crimes Tribunal (International Criminal Court*ICC) constitute a challenge to national sovereignty? According to previous US governments and several American observers, the answer is yes. Establishing a world court that acts independently of the states that gave birth to it renders the idea of sovereignty meaningless. This article analyzes the American objections to the ICC and the conception of sovereignty and international law underlying these objections. It first considers the structure and intent behind the criminal court and attempts to unveil the logic hiding behind the idea of 'America's historical uniqueness.' It touches on the diverging US and European conceptions of sovereignty and ends up arguing that governments that stick to traditional conceptions of sovereignty and international law in the employment of their foreign policy may lose the moral legitimacy that has proven increasingly important for winning the sympathy of allies and regaining world leadership.

Loading...

Loading Preview

Sorry, preview is currently unavailable. You can download the paper by clicking the button above.