International law is not resilient -- U.S. loopholes prove
Jack L. Hiken & Eric A. Posner 5, Jack Goldsmith is Learned Hand Professor of Law at Harvard University and served as Assistant Attorney General, Office of Legal Counsel, from October 2003 through July 2004, and Special Counsel to the General Counsel to the Department of Defense from September 2002 through June 2003. Goldsmith taught at the University of Chicago Law School from 1997-2002, and at the University of Virginia Law School from 1994-1997. He holds a J.D. from Yale Law School, a B.A. and M.A. from Oxford University, and a B.A. from Washington & Lee University. He clerked for Supreme Court Justice Anthony M. Kennedy, Court of Appeals Judge J. Harvie Wilkinson, and Judge George Aldrich on the Iran-U.S. Claims Tribunal - Eric Posner is the Kirkland and Ellis Distinguished Service Professor of Law, University of Chicago. His research interests include antitrust law, financial regulation, international law, and constitutional law. Professor Posner is a fellow of the American Academy of Arts and Sciences and a member of the American Law, 4-x-2005, “The Limits of International Law”, AEI, https://www.angelfire.com/jazz/sugimoto/law.pdf // shaka
The biggest problem, from the perspective of international law advocates, has been the United States. Long the champion of international legalization and the richest and most powerful country, the United States was a laggard in the 1990s. During treaty negotiations, the United States consistently worked to weaken treaty language and create exceptions. It ended up opposing the International Criminal Court and has cajoled dozens of countries into entering bilateral immunity agreements, which require them not to turn over Americans on their territory to the ICC. It refused to enter the Kyoto Global Climate Change Treaty. It refused to enter a treaty that banned landmines. It has refused to enter several human rights treaties, and it has entered others only subject to reservations that ensure that they do not change American policy. It led the illegal intervention in Kosovo. Although many other states have been recalcitrant about these and similar international institutions— including Russia, China, India, and other major powers—it has come as a shock to many American internationalists that the United States acts more like these countries than like western European countries. From their perspective, matters only became worse after 9/11. The American military response to the al Qaeda threat has raised grave questions of international law. So has both the invasion of Iraq—arguably, in violation of the UN Charter—and the conduct of the war there. The Bush administration also has forcefully reiterated American opposition to the ICC and to Kyoto, and withdrawn from the ABM treaty with Russia; and many of its officials have shown skepticism about the value of international law for American foreign policy. International law advocates now regard the United States as a rogue state but have no ideas about how to change American behavior. Defenders of American foreign policy sometimes argue that nobody pays attention to international law, and so therefore the United States should not; and, at other times, they argue that weak states are using international law to prevent the United States from acting in its national interest. The partisan debate is hampered by lack of understanding about how international law really operates.