Although Nelson Mandela (1918-2013) and Cecil Rhodes (1853-1902) were not contemporaries, they both played important roles in South African history. Mandela, of course, survived imprisonment for nearly 27 years for his struggle against the apartheid regime in that country to become its president and a world-renowned figure. Rhodes was an Englishman who earned a fortune from mining diamonds (De Beers Consolidated Mines) in that country and neighboring Zimbabwe (f/k/a Rhodesia) and who served as Prime Minister in the Cape Colony. In 1903 his will established the Rhodes Scholarships at Oxford University in England.
On the centennial of those Scholarships, Mandela established an indirect connection with Rhodes. His Nelson Mandela Foundation and The Rhodes Trust created a joint venture called the Mandela Rhodes Foundation, whose “central purpose . . . is to build exceptional leadership capacity in Africa.” It does so by operating “a Scholarships and Leadership Development programme . . . [f]ocusing on the four principles of the Foundation: Reconciliation, Education, Entrepreneurship and Leadership. It selects “young leaders from 25 different African countries . . . [to make] inward and outward journeys of self-discovery . . .[to create] community across differences, and . . . [to grow and learn] more about Africa, its peoples and . . . [to make a] contribution towards the development of the continent.”
To mark this historic joint venture, Mandela addressed a gathering of Rhodes Scholars and dignitaries at Westminster Hall in London on July 2, 2003. Below is a photograph of his making that speech.
He said his objective in so doing was “to close the circle” by letting “our peoples, the ones formerly poor citizens and the others good patricians – politicians, business people, educators, health workers, scientists, engineers and technicians, sports people and entertainers, activists for charitable relief – join hands to build on what we have achieved together and help construct a humane African world, whose emergence will say a new universal order is born in which we are each our brother’s keeper.” This will be “a partnership for freedom, peace, prosperity and friendship.”
Mandela also trusted that this joint venture was for “the labourer who toils on the African farm, fighting for a life of dignity; the girl child battling against great odds for an opportunity to realize her potential; the poor AIDS orphan bereft of family or care; the rural poor eking out a subsistence, deprived of the most basic services and facilities.”
Rhodes, he said, was “that great entrepreneur, [who] made most of the money [in South Africa] which he left in legacy for scholars from across the world to benefit from for the past hundred years. It speaks of a growing sense of global responsibility that in this second century of its operations the Rhodes Trust finds it appropriate to redirect some of its attention and resources back to the origin of that wealth. We can only imagine how Rhodes himself would have identified with this decision to develop human capacity in modern day South Africa, enabling that country to continue being a competitive presence in the world as it was in those fields within which he operated during his times.”
Mandela closed his speech with this quotation from the preamble of the South African Constitution: “”We, the people of South Africa, Recognise the injustices of our past, Honour those who suffered for justice and freedom in our land, Respect those who have worked to build and develop our country; and, Believe that South Africa belongs to all who live in it, united in our diversity.” (Emphasis added.)
Other Participants in the Celebration
This blogger was present on this occasion in London’s Westminster Hall, and a prior post recounts the other remarks by Lord Waldegrave, the Chairman of the Rhodes Trustees; “Nicky” Oppenheimer, the Chairman of DeBeers, the diamond mining company started by Rhodes in South Africa; Bill Clinton, the former U.S. President; and Tony Blair, then the Prime Minister of the U.K.
Most memorably when all the speeches were finished, everyone on the speakers’ stage walked the over 200-feet length of the hall through the audience. Mandela, then nearly 85 years old, and frail, was aided in making the long walk; his right arm was held by Tony Blair; his left, by Bill Clinton. They brought tears to our eyes as they passed six feet from us on their journey through the Hall. Below are photographs of the three men during their walk and of the Hall (with a different audience).
The Mandela Foundation’s decision to establish a joint venture with the trust created by a white Englishman who made a fortune in South Africa illustrates, I think, at least two of Mandela’s principles that are discussed in “Mandela’s Way: Lessons on Life, Love, and Courage” by Richard Stengel: “See the Good in Others” because “no one is only good or evil and no one is evil at heart” and ” Have Core Principle–All Else Is Tactics.”
As noted in another post, the world this year rightfully commemorates the centennial of the birth of Nelson Mandela and his Foundation’s website lists events around the world to commemorate this occasion. (That post also discusses Mandela’s being inspired by Fidel Castro and the Cuban Revolution.)
I am currently taking a brief course, “Sub-Saharan African History to Colonialism,” to learn about such history “from many angles: anthropological, historical, geographic, cultural, and religious. From human origins through the populating of the continent, the great civilizations, the slave trades, to the beginning of European domination.” Offered by the University of Minnesota’s Osher Lifelong Learning Institute (OLLI), the course’s instructor is Tom O’Toole, Emeritus Professor of Sociology and Anthropology of Minnesota’s St. Cloud State University.
Why does this Euro-American septuagenarian take this course? Foremost, I know virtually nothing about this history and want to know more. I also realize that I have various direct and indirect connections with Africa.
The most immediate precipitating cause is reading the discussion of the names of African and African-American intellectuals and historical figures that were discovered at Howard University by African-American author Ta-Nehisi Coates and recounted in his book “Between the World and Me” and my realizing that I did not know virtually any of these people. This book also has prompted me to research and investigate my own notions of race, including my recent posts about statements from the American Anthropological Association about race’s non-scientific basis and historical and cultural background. Further posts about notions of race are forthcoming.
I learned more about one of these figures of African history this spring when my 10th-grade grandson wrote a History Day paper on Mansa Musa, who was a 14th century Emperor or King of Mali. Moreover, one of my sons knows more about this history from his having studied African history and Swahili at the University of Minnesota and from spending a semester in Kenya with a program of the National Outdoor Leadership School and then a week on his own living with a Maasai tribesman in that country.
Coates also legitimately castigates the U.S. history of slavery and its lasting impacts on our country. This has underscored my interest in the importation of slaves from Africa to the Western Hemisphere. This was part of Lawrence Hill’s fascinating novel “The Book of Negroes” (“Someone Knows My Name”), about which I have written. Moreover, I have visited Matanzas, Cuba and Salvador, Brazil, which were major ports of importation of African slaves to work on sugar plantations in those countries.
I have a number of friends from West Africa (Cameroon, Nigeria and Ghana) and visited Cameroon on a mission trip from Minneapolis’ Westminster Presbyterian Church. There I learned about the country’s having been a German colony (Kamerun) in the 19th century and then having French and British administration under League of Nations mandates after Germany was stripped of its African colonies by the 1919 Treaty of Versailles ending World War I. Forty-plus years later Cameroon became an independent country with the joinder of the Francophone and Anglophone territories. Yet life today in the country is still affected by the language and cultural differences from the French and British governance and less so by the previous 30-plus years of German rule.
I also have visited Namibia, Botswana and South Africa focused primarily on observing their magnificent wildlife and nature, but also the prison on Robben Island, where Nelson Mandela and other African National Congress leaders were imprisoned during the years of apartheid. In addition, I had the opportunity to see and hear Mandela speak at a 2003 celebration of the centennial of the Rhodes Scholarships held at Westminster Hall in London and to see him escorted through the Hall’s audience, only 10 feet from me and my wife, by Bill Clinton and Tony Blair.
The visit to South Africa also included stopping at Cecil Rhodes’ Cottage and Museum at Mulzenberg overlooking False Bay and the Indian Ocean at the southwest corner of the country. (My interest in Cecil Rhodes, the Founder of the Scholarships, and his 19th century involvement in South Africa and Rhodesia (now known as Zimbabwe) stems from being a Rhodes Scholar who was “up” at Oxford, 1961-1963, and from my gratitude for being a beneficiary of his largess.)
While co-teaching international human rights law at the University of Minnesota Law School, I learned about the International Criminal Court, whose initial cases all came from Africa, thereby prompting some resistance from African leaders who thought this was anti-African discrimination. (I have written many blog posts about the ICC.) Previously I had been a pro bono lawyer for two Somali men’s successful applications for asylum in the U.S.
Other indirect connections are provided by three Grinnell College classmates. One became a professor of African history. Another served in Africa with the Peace Corps in Ethiopia, where he met his English wife serving in a similar British program and where they both frequently return to participate in a project of preparing and distributing audio textbooks for blind students. The third classmate, also in the Peace Corps, served in Mali, where he was involved in smallpox eradication. In addition, one of my Grinnell roommates from Chicago now lives in South Africa.
All of these direct and indirect connections with Africa provided additional motivation to learn more about its history. In a subsequent post I will attempt to summarize the key points of this brief exploration of African history.
On November 10, 2014, the New York Times published its latest editorial in its series “Cuba: A New Start.” Under the title, “In Cuba, Misadventures in Regime Change,” this editorial focuses on criticizing the efforts by the U.S. Agency for International Development (USAID) to promote regime change in Cuba and recommending “stronger [U.S.] diplomatic relations” with Cuba as a more productive way to try “to positively influence Cuba’s evolution toward a more open society.”
The editorial also recommends that the U.S. “should find ways to empower ordinary Cubans by expanding study-abroad programs, professional exchanges and investment in the new small businesses cropping up around the island. [The U.S.] should continue to promote Internet connectivity, but realize that accomplishing that goal on a large scale will require coordination with the Cuban government.”
The editorial’s foundation is the following set of documented factual assertions:
In 1996, the U.S. enacted the Helms-Burton Act that spelled out “a strategy to overthrow the government in Havana and ‘assist the Cuban people in regaining their freedom.’”This statute “has served as the foundation for the $264 million the United States has spent in the last 18 years trying to instigate democratic reforms on the island.”
“During the final years of the Clinton administration, the [U.S.] spent relatively little on programs in Cuba under . . . [this statute].”
“That changed when George W. Bush came to power in 2001 with an ambitious aim to bring freedom to oppressed people around the world.” USAID, “better known for its humanitarian work than cloak-and-dagger missions, became the primary vehicle for pro-democracy work in Cuba, where it is illegal.”
“In the early years of the [George W.] Bush administration, spending on initiatives to oust the [Cuban]government surged from a few million a year to more than $20 million in 2004. Most contracts were awarded, without much oversight, to newly formed Cuban-American groups. One used funds on a legally questionable global lobbying effort to persuade foreign governments to support America’s unpopular embargo. Other grantees sent loads of comic books to the American diplomatic mission in Havana, bewildering officials there. The money was also used to buy food and clothes, but there was no way to track how much reached relatives of political prisoners, the intended recipients.”
“According to a November 2006 report by the Government Accountability Office, one contractor used the pro-democracy money to buy ‘a gas chain saw, computer gaming equipment and software (including Nintendo Game Boys and Sony PlayStations), a mountain bike, leather coats, cashmere sweaters, crab meat and Godiva chocolates,’ purchases . . . [the contractor] was unable to justify to auditors.”
“The G.A.O. probe led . . . [USAID] to start awarding more funds to established development organizations, including some that pitched bold initiatives. In 2008, Congress appropriated $45 million for the programs, a record amount.”
In December 2009 Alan Gross, a U.S. citizen, went on his fifth trip to the island posing as a tourist but acting on behalf of an USAID contractor to smuggle communications equipment to Jewish groups in Cuba. Gross was arrested, charged and convicted by a Cuban court for violating Cuban law and sentenced to 15 years of imprisonment.
“At the time [of Gross’ arrest], many senior State Department officials were not fully aware of the scope and nature of the covert programs, . . . and some argued that the covert programs were counterproductive and should be stopped. But Cuban-American lawmakers fought vigorously to keep them alive.”
“After Mr. Gross’s arrest, [USAID] . . . stopped sending American [citizens] into Cuba, but it allowed its contractors to recruit Latin Americans for secret missions that were sometimes detected by the Cuban intelligence services.”
“An investigation by The Associated Press published in April  revealed . . . [that between] 2009 and 2012, Creative Associates International, a Washington firm, built a rudimentary text messaging system similar to Twitter, known as ZunZuneo, Cuban slang for a hummingbird’s tweet. It was supposed to provide Cubans with a platform to share messages with a mass audience, and ultimately be used to assemble ‘smart mobs.’” Although the contractor paid “text-messaging fees to the Cuban telecommunications company, [the contractor] never found a way to make the platform self-sustaining.”
“A second A.P. report revealed in August  that U.S.A.I.D. had been sending young Latin Americans to Cuba to identify ‘potential social change actors,’ under the pretext of organizing gatherings like an H.I.V. prevention workshop. The contractors, also hired by Creative Associates, received quick pointers on how to evade Cuban intelligence and were paid as little as $5.41 an hour for work that could have easily landed them in prison.”
Although the “American money has provided food and comfort to some relatives of political prisoners, and been used to build limited access to satellite-based Internet connections, . . . it has done more to stigmatize than to help dissidents.”
“Far from accomplishing . . . the goal [of instigating democratic reforms on the island], the initiatives have been largely counterproductive. The funds have been a magnet for charlatans, swindlers and good intentions gone awry. The stealthy programs have increased hostility between the two nations, provided Cuba with a trove of propaganda fodder and stymied opportunities to cooperate in areas of mutual interest.”
As previous posts to this blog have discussed, I concur in this editorial’s criticisms of the USAID covert efforts to promote regime change in Cuba and the editorial’s recommendations for changes in U.S. policies regarding the island nation.
I take exception, however, to the editorial’s unexamined assertion that Cuba has “one of the most repressive governments in the world.” Although I am confident that Cuba ideally should have a more open society and hope that it continues to move in that direction, all of us in the U.S. should try to put ourselves in the shoes of the Cubans.
For decades the immensely more powerful U.S. has openly engaged in hostile policies and actions against the small, poor and militarily weak island. This includes the U.S.-supported and unsuccessful 1961 “Bay of Pigs” invasion of Cuba; the threatened U.S. bombing and invasion of Cuba in the 1962 Cuban missile crisis; the recently revealed 1976 military plans to “clobber” Cuba that were being prepared by U.S. Secretary of State Henry Kissinger; the half-century U.S. embargo of Cuba; and the very USAID covert efforts to promote regime change in Cuba that are discussed in this editorial. If we in the U.S. were in this situation, we too would, I am confident, impose restrictions on an open society. Have we not done this very thing in our response to the 9/11 attacks and the threats of international terrorism?
As I said in an earlier post about U.S. policies regarding Cuba, all of us should remember that when the scribes and Pharisees confronted Jesus with a woman who had been caught in the act of adultery and asked Jesus what he had to say when the law of Moses said stone her, Jesus responded, “Let anyone among you who is without sin be the first to throw a stone at her.” (John 8:3-7)
Likewise, the President and all of us should also remember these other words of Jesus (Matthew 7:1-5):
“Do not judge, so that you may not be judged. For with the judgment you make you will be judged, and the measure you give will be the measure you get. Why do you see the speck in your neighbor’s eye, but do not notice the log in your own eye? Or how can you say to your neighbor, ‘Let me take the speck out of your eye,’ while the log is in your own eye?You hypocrite, first take the log out of your own eye, and then you will see clearly to take the speck out of your neighbor’s eye.”
The U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the U.S., is once again back in the news.
The immediate issue is the need for the U.S. Senate to confirm President Obama’s appointment of Srikanth “Sri” Srinivasan to one of the four vacancies on this Court.
Srinivasan has a blue-chip resume. Currently he is the Principal Deputy Solicitor General of the U.S. and has argued 20 cases before the U.S. Supreme Court. He previously clerked for the Reagan-appointed Supreme Court Justice Sandra Day O’Connor. He also served with distinction in the Justice Department for both Presidents George W. Bush and Barack Obama and with the Washington, D.C. office of the eminent law firm of O’Melveny & Myers. A native of India, Srinivasan grew up in Kansas and earned a bachelor’s degree in 1989 from Stanford University and a J.D./M.B.A. degree in 1995 from its Law School and Graduate School of Business.
On April 10th Srinivasan had an uneventful 90-minute hearing before the Senate Judiciary Committee. His nomination is strongly supported by the Obama Administration and by noted conservative and liberal lawyers and academics.
The next step is for the Committee to vote on whether to send this nomination to the Senate floor for a vote. At least one of the eight Republican members of the Committee, Orrin Hatch, said he was impressed and would support such a motion. Assuming all 10 Democratic Committee members support such a motion, then it should be approved by a vote of at least 11 to 7. Then the whole Senate would vote on the nomination unless there was a filibuster of same.
Perhaps the partisan wrangling over appointments to this Court is overwrought.
Evidence for a less partisan view of this Court is found in its April 5th Presentation Ceremony of the Portrait of D.C. Circuit Senior Judge David B. Sentelle, who was appointed to the Court in 1987 by Republican President Ronald Reagan. For remarks of appreciation from his own Court, Judge Sentelle chose Circuit Judge David S. Tatel, who was appointed by Democratic President Bill Clinton in 1994.
Judge Tatel commented on the apparent oddity of his speaking for Judge Sentelle. Tatel said, “those who believe that judges’ decisions are driven by ideology may wonder why Dave [Sentelle] asked me to speak. After all, you would be hard pressed to find two judges with more different backgrounds, different worldviews, different beliefs, and, indeed, different shoes than we two Davids. But those who focus on these differences do not understand what it means to be a federal judge, do not understand this Court’s long tradition of collegiality, and surely do not understand Dave Sentelle.” Tatel continued, “when Judge Sentelle and I sit together, we very rarely disagree.” In “the nineteen years we’ve served together, we have disagreed less than 3% of the time.”
The answer to why there had been so little disagreement, according to Judge Tatel, was “Judge Sentelle’s decisions are driven not by personal preferences, but by a conscientious application of the principles and texts that bind us. Uncommonly peppered with the hallmarks of restrained decision-making, his opinions are full of phrases like, ‘If the intent of Congress is clear, that is the end of the matter’; ‘Courts must accord substantial deference to Congress’s findings’; ‘We are bound by the decisions of the Supreme Court’; ‘One three judge panel has no authority to overrule another’; ‘We owe agency fact-finding great deference’; ‘Issues not raised on appeal are deemed waived’; and ‘Absent jurisdiction we are powerless to act.’ For Judge Sentelle, “the tenets of judicial restraint are not mere slogans to be invoked when convenient; they are the building blocks of all that we do here.”
Judge Tatel also complimented Judge Sentelle’s judicial opinions. According to Tatel, Judge Sentelle “crafts opinions that treat every one of his colleagues, as well as every citizen who appears before us, with respect and a true generosity of spirit. Flipping through his opinions, including his dissents, you’ll find no sarcasm, no belittling remarks, no callous dismissals. This is, after all, a United States Court, and Judge Sentelle’s opinions are a credit to the dignity of this institution. In his five years as our Chief Judge, Dave has protected our proudly nurtured tradition of collegiality.”
In conclusion, Judge Tatel said, Judge Sentelle is “a man who has the greatest respect for the office he holds and an abiding dedication to a life of service and the rule of law.”
 President Obama’s only other eminently qualified nominee to the court, Caitlin J. Halligan, was named in 2010 to fill the vacancy created by the elevation of John G. Roberts Jr. to the Supreme Court. In March of this year Republicans for a second time mounted a filibuster that prevented the Senate from voting on Ms. Halligan, and President Obama granted her request to withdraw her nomination saying, “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.” Her nomination was supported by the New York Times and Washington Post.
 If the Srinivasan nomination is filibustered , then Senate Majority Leader Harry Reid has threatened to modify the Senate Rules to bar such filibusters on at least judicial nominees. I frequently have voiced my strong disapproval of the filibuster rule and practice.
 Judge Tatel is a University of Chicago Law School classmate and friend of mine, and I have written a post about his opinion for the D.C. Circuit in the Voting Rights Act case now pending in the U.S. Supreme Court.
Moreover, only one of these nine treaties was put to a vote in the whole Senate (the Convention on the Rights of People with Disabilities), and on December 4, 2012, it failed by five votes to get the constitutionally necessary two-thirds vote for advice and consent.
Another of these nine treaties (Discrimination Against Women) went to the Senate floor twice (in 1994 and 2002) with favorable recommendations from the Foreign Relations Committee, but was never voted upon by the entire Senate, and thus the resolutions for advice and consent to this treaty died upon adjournment of those congressional sessions.
The Senate Committee held hearings on two of these signed treaties in 1978 (International Covenant on Economic, Social and Cultural Rights and American Convention on Human Rights), but never reported them to the entire Senate. Thus, they died in committee as did Protocol II to the Geneva Conventions, which never received a committee hearing.
Thus, all of these five signed human rights treaties remain on the U.S. Senate Committee on Foreign Relations’ inventory (as of 2/10/2013) of 87 treaties awaiting further action by the Committee and the Senate as a whole.
As an outsider, I believe that these five treaties will be brought to the Senate floor if and only if the Committee’s Chair believes there is a reasonable likelihood that they would receive the constitutionally necessary two-thirds vote for advice and consent. Their past languishing in committee is an indication, in my opinion, that there has not been over the years the necessary two-thirds senatorial support for having these treaties ratified.
The fate of these nine human rights treaties that have been signed, but not ratified, is additional evidence of the complex and difficult procedures for obtaining U.S. ratification of treaties. And it is not only human rights treaties that do not make it to the end of the ratification process as we have seen in posts about the Treaty of the Law of the Sea.
 See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 138 (4th ed. LexisNexis 2009).
 The American Convention on Human Rights is substantially similar to the International Covenant on Civil and Political Rights and the International Covenant on Economic. Social and Cultural Rights. In addition, it establishes the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
 The International Covenant on Economic, Social and Cultural Rights provides that the parties shall take steps for the progressive realization (to the full extent of available resources) of the rights to gain a living by work, to have safe and healthy working conditions, to enjoy trade union rights, to receive social security, to have protection for the family, to possess adequate housing and clothing, to be free from hunger, to receive health care, to obtain free public education and to participate in cultural life, creative activity and scientific research.
 Optional Protocol II offers protection to civilians and the wounded in non-international armed conflicts.
 This summary of the five listed treaties is based upon their being listed on the Senate Committee on Foreign Relations’ inventory of treaties awaiting Senate action.
 The assertion that the first three of these four treaties have not been submitted to the Senate is an inference from their not being on the Senate Foreign Relations Committee’s inventory of treaties awaiting Senate action and their not having been ratified by the U.S. Another possible inference is that they were submitted to, and rejected by the entire Senate, but I have not seen any indication that happened with respect to these three treaties. If anyone knows of the full Senate’s rejection of any of these four treaties, please add a comment to this post. Prior research regarding the Rome Statute, on the other hand, confirms that it has not been submitted to the Senate.
 Optional Protocol I offers protection to civilians and the wounded in international armed conflicts.
 We have examined the fate of the Rome Statute in the Clinton, George W. Bush and Obama Administrations. Many other posts have discussed the work of the ICC.
The United Nations Convention [Treaty] on the Law of the Sea sets out international rules for maritime navigation, territorial waters and countries’ use of offshore areas as exclusive economic zones. It was the result of an international conference that concluded on December 10, 1982 at Montego Bay, Jamaica when the U.S. and 120 other nations adopted the text of the treaty, and it went into force on November 16, 1994. Now 162 of the 193 U.N. member states are parties to the treaty.
The U.S. signed the treaty on July 29, 1994, but it has not been ratified by the U.S. Such ratification, however, is once again on the table as we will see after reviewing what has happened in the U.S. with respect to the treaty in the nearly 30 years since it was adopted. This is another example of the complicated and difficult process of obtaining U.S. Senate advice and consent to ratification of a treaty by a two-thirds vote (67 Senators) under Article II, Section 2(2) of the U.S. Constitution that was examined in a post with respect to the Convention Against Torture.
Although the treaty was concluded during his Administration, President Regan did not sign the treaty. Nor was it signed during the George H.W. Bush Administration.
But on July 29, 1994, President Bill Clinton signed the treaty along with a July 28, 1994, Agreement resolving U.S. and others’ objections to a part of the treaty. On October 7, 1994, Clinton submitted the treaty and the Agreement to the U.S. Senate for its “advice and consent” to ratification by the U.S. In his transmittal message, President Clinton said that since 1982 successive U.S. administrations had not signed the treaty because of flaws in its regime for managing the development of mineral resources of the seabed beyond national jurisdiction, but these provisions had been changed by the just mentioned Agreement.[i] Therefore, according to the President, it was now appropriate for the U.S. to join the treaty. President Clinton also stated:
“The United States has basic and enduring national interests in the oceans and has consistently taken the view that the full range of these interests is best protected through a widely accepted international framework governing uses of the sea. Since the late 1960s, the basic U.S. strategy has been to conclude a comprehensive treaty on the law of the sea that will be respected by all countries. Each succeeding U.S. Administration has recognized this as the cornerstone of U.S. oceans policy. Following adoption of the Convention in 1982, it has been the policy of the United States to act in a manner consistent with its provisions relating to traditional uses of the oceans and to encourage other countries to do likewise.”
Furthermore, President Clinton continued, this treaty had the following benefits for the U.S.:
“The Convention advances the interests of the United States as a global maritime power. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements and of commercial vessels to carry sea-going cargoes. It achieves this, inter alia, by stabilizing the breadth of the territorial sea at 12 nautical miles; by setting forth navigation regimes of innocent passage in the territorial sea, transit passage in straits used for international navigation, and archipelagic sea lanes passage; and by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond.”
“The Convention advances the interests of the United States as a coastal State. It achieves this, inter alia, by providing for an exclusive economic zone out to 200 nautical miles from shore and by securing our rights regarding resources and artificial islands, installations and structures for economic purposes over the full extent of the continental shelf. These provisions fully comport with U.S. oil and gas leasing practices, domestic management of coastal fishery resources, and international fisheries agreements.”
The treaty is “a far-reaching environmental accord addressing vessel source pollution, pollution from seabed activities, ocean dumping, and land-based sources of marine pollution . . . . [It thereby] promotes continuing improvement in the health of the world’s oceans.”
The “Convention sets forth criteria and procedures to promote access to marine areas, including coastal waters, for research activities.”
“The Convention facilitates solutions to the increasingly complex problems of the uses of the ocean–solutions that respect the essential balance between our interests as both a coastal and a maritime nation.”
“Through its dispute settlement provisions, the Convention provides for mechanisms to enhance compliance by Parties with . . . [its] provisions.”
Nine years later in October 2003, the Senate Committee on Foreign Relations held the first hearings on the treaty, and on February 25, 2004, the Committee unanimously ordered it to be reported favorably without amendments to the full Senate. The treaty went to the Senate floor on March 11, 2004 with a report by Committee Chair, Republican Senator Richard Lugar of Indiana. However, no vote on the resolution of advice and consent had been taken when the congressional session ended in December 2004, and, therefore, the treaty was referred back to the Committee on Foreign Relations.
The George W. Bush Administration had asked for ratification in 2004. In fact, the Law of the Sea was one of only five treaties that the Bush Administration placed in its “urgent” category on its list of treaty priorities. Widespread support for ratification was expressed to the Committee:
Representatives from the Department of State, the Office of the Secretary of Defense, the U.S. Navy, the U.S. Coast Guard, and the Commerce Department testified in support of the Convention at various Congressional hearings.
Representatives from six Bush Administration Cabinet departments participated in the interagency group that helped write the resolution of advice and consent accompanying the treaty. And the U.S. Commission on Ocean Policy, appointed by President Bush, strongly endorsed U.S. accession to the Law of the Sea.
In the private sector, every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies that use underwater cables, supported U.S. accession to the Law of the Sea and are lobbying in favor of it. The National Foreign Trade Council, representing hundreds of exporting companies, also supported ratification.
Moreover, a long list of environmental and ocean groups had endorsed the treaty because it would protect and preserve the marine environment and establish a framework for further international action to combat pollution.
During the Committee’s consideration of the treaty, it received just one inquiry voicing opposition to the measure and that was from an individual representing himself. Staff offered to receive written testimony from this individual, but none was sent.
Despite this strong support for ratification of the treaty, full Senate consideration of the treaty in 2004 had been held up by vague and unfounded concerns about its effects. Chairman Lugar commented that these concerns had been expressed primarily by those who oppose virtually any multi-lateral agreement. “Various conservative lobbyists have indicated strong objections—they believe our sovereignty will be impugned.” Senator Lugar lamented this inaction. He said, “If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multi-lateral solution to any international problem is likely to be accepted within the U.S. policy-making structure.” Moreover, the Bush Administration was not willing to expend political capital to push for ratification, and Senate Majority Leader Frist was not willing to put it on the Senate calendar in light of a threatened filibuster.
Nearly three years later, in September and October 2007, that Committee held another set of hearings on the treaty, and on October 31, 2007, ordered it to be reported favorably without amendments to the full Senate by a vote of 17 to 4. The treaty went to the Senate floor on December 19, 2007 with a report by Committee Chair, Democratic Senator Joe Biden of Delaware. However, no vote on the resolution of advice and consent had been taken when the congressional session concluded on January 2, 2009, and, therefore, the treaty was referred back to the Committee on Foreign Relations.
Senator Lugar again reflected on this failure to obtain the Senate’s advice and consent to ratifying this treaty. He said there needed to be a “reinvigorated Senate commitment to the treaty process.” Senate leaders of both parties, he said, had allowed narrow objections to prevent Senate consideration of this and other treaties and had been unwilling to invoke cloture to terminate debate on treaties. For this blogger, this is another example of the abysmal rules of the U.S. Senate.
Renewal of Interest in U.S. Ratification of the Treaty
As previously mentioned, possible U.S. ratification of the treaty is back on the table.
On May 9, 2012, Secretary of Defense Leon Panetta gave a lengthy speech calling for such ratification. He said this treaty is “the bedrock legal instrument underpinning public order across the maritime domain” and yet the U.S. is the only permanent member of the U.N. Security Council and the only industrialized country in the world that is not a party. This puts the U.S. at a distinct disadvantage, particularly when it comes to disputes over maritime rights and responsibilities.
Panetta noted, as detailed above, that the Senate Foreign Relations Committee has held hearings and approved the treaty by large bipartisan majorities and that the treaty is supported among major U.S. industries in order to be able to do their business and to accomplish their goals.
The same is true for national security, Panetta said, as demonstrated in comments by the Chairman of the Joint Chiefs of Staff, the Chief of Naval Operations, the Commandant of the Marine Corps, and the Coast Guard Commandant. Panetta then listed some of the reasons why this treaty is essential to a strong national security.
First, as “the world’s pre-eminent maritime power,” the U.S. with one of the largest coastlines and extended continental shelf in the world “has more to gain from accession to the Convention than any other country because of the interest we have from our coastlines, from our oceans, and from our continental shelves. By . . . sitting at the table of nations that have acceded to this treaty, we can defend our interests, we can lead the discussions, we will be able to influence those treaty bodies that develop and interpret the Law of the Sea. If we’re not there, then . . . [others will] do it, and we won’t have a voice.” Under these circumstances, the U.S. will not be able “to ensure that our rights are not whittled away by the excessive claims and erroneous interpretations of others.” To be a party, on the other hand, “would give us the credibility to support and promote the peaceful resolution of disputes within a rules-based order.”
Second, by joining the Convention, the U.S. “would protect our navigational freedoms and global access for our military, our commercial ships, our aircraft, and our undersea fiber optic cables. As it currently stands, we are forced to assert our rights to freedom of navigation, asserting hopefully, through customary international law, which can change to our own detriment.” But by joining the Convention, “we would help lock in rules that are favorable to freedom of navigation and our own global mobility.”
Third, “accession [to the treaty] would help lock-in a truly massive increase in our country’s resource and economic jurisdiction, not only to 200 nautical miles off our coasts, but to a broad continental shelf beyond that zone.”
Fourth, “accession would ensure our ability to reap the benefits of the opening of the Arctic – a region of increasingly important maritime security and economic interest. We already see countries that are posturing for new shipping routes and natural resources as Arctic ice cover melts and recedes. The Convention is the only means for international recognition and acceptance of our extended continental shelf claims in the Arctic, and we are the only Arctic nation that is not party to the Convention.” Accession would also “preserve our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.”
Finally, the new U.S. “defense strategy emphasizes the strategically vital arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia.” Many countries “sit astride critical trade and supply routes and propose restrictions on access for military vessels in the Indian Ocean, Persian Gulf, and the South China Sea.” The U.S. has had a consistent naval presence and engagement in these critical regions. Becoming a party to the Convention would strengthen the U.S. position in these key areas. By not acceding to the Convention, the U.S, potentially is undercutting “our credibility in a number of Asia-focused multilateral venues – just as we’re pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes.” Being a party to the treaty is also important for the U.S. efforts to preserve freedom of transit in the Strait of Hormuz in the face of Iranian threats to impose a blockade.
Democratic Senator John Kerry, the Chairman of the Senate Foreign Relations Committee, has said that he is considering holding new hearings on the treaty.
In a presidential election year bipartisan cooperation is even more difficult than normal, especially after Senator Lugar’s loss in the Indiana primary election this past Tuesday. Therefore, it seems unlikely that the Senate this year will give its advice and consent by a two-third’s vote to ratification of this treaty. We will wait and hope that this assessment is proven wrong.
[i] Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994
Michael Ignatieff, a former Harvard professor and expert on international human rights and a former leader of Canada’s Liberal Party, in a recent issue of The New York Review of Books expressed a gloomy view of the post-World War II development of international criminal tribunals.
The actions of the U.S. and other great powers have contributed to his negativity. He says, “America is exceptional in combining standard great-power realism with extravagant idealism about the country’s redemptive role in creating international order. . . . [The] US has promoted universal legal norms and the institutions to enforce them, while seeking by hook or by crook to exempt American citizens, especially soldiers, from their actual application. From Nuremberg onward, no country has invested more in the development of international jurisdiction for atrocity crimes and no country has worked harder to make sure that the law it seeks for others does not apply to itself.”
This negative assessment is buttressed by the new memoir by David Scheffer (All the Missing Souls: A Personal History of the War Crimes Tribunals). Scheffer,who was one of the leading U.S. diplomats involved in the negotiations that created these tribunals, recounts the U.S. resistance to (i) providing U.S. intelligence information to the ICTY; (ii) seeking to arrest the most egregious defendants for the ICTY; and (III) having U.S. citizens, especially soldiers, being subject to the jurisdiction of the International Criminal Court (ICC). A review of this book is the nominal subject of this essay by Ignatieff.
Scheffer’s post-mortem on his frustrations as the lead U.S. diplomat at the Rome Conference that produced the Rome Statute for the ICC is especially instructive on why the U.S. voted against that treaty at the conclusion of the conference and more generally on the U.S. process for negotiating and ratifying multilateral treaties.
According to Scheffer, there were four main reasons for the inability of the U.S. to advance its positions at the Rome Conference and its eventual vote against the treaty at the conference’s conclusion. U.S. military officials failed to know and understand other nations’ perspectives on the ICC and to explain to other nations the role of the U.S. military after the end of the Cold War. Nevertheless the U.S. military’s opposition to the ICC dictated the terms of the unsuccessful U.S. negotiating positions at the conference. In addition, the U.S. government was unable to make timely policy decisions on key issues being negotiated for the treaty. Thirdly, there are always distractions and other matters clamoring for the attention of the President and his top advisors; for President Clinton and the Rome Conference it was the Monica Lewinsky scandal. Finally, Republican Senators Jesse Helms of North Carolina and Rod Grams of Minnesota, who were vehemently opposed to the idea of an ICC, attended the Rome Conference to make their views known to other governments.
Scheffer also provides important background information on two developments after the Rome Conference that remind us that there are important issues for a treaty like the Rome Statute after its terms have been adopted. First, he successfully pressed for significant U.S. participation in the drafting of the ICC’s Rules of Procedure and Evidence and the Elements of Crimes that helped to alleviate some of the U.S. concerns regarding due process at the new court. Second, Scheffer also was successful in lobbying for the U.S.’ signing the Rome Statute before the end of 2000 (the last possible date for a state’s signing the treaty), which he did on behalf of the U.S. at the U.N. headquarters in New York City on December 31st (a very wintery Sunday New Year’s Eve Day). He, however, was not pleased with some of the details of President Clinton’s signing statement that said the treaty had “significant flaws” and that he would not be submitting the treaty to the Senate for advice and consent. The latter point, says Scheffer, was unnecessary since the Clinton presidency was almost over and since it usually takes years to prepare a treaty for submission to the Senate.
Ignatieff’s negative assessment of the U.S. split personality on this subject is also supported by the fact that the U.S. has been actively involved in the post-1945 negotiation of treaties that establish or codify international human rights norms, but has not ratified 16 such treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court. Moreover, the U.S. has subjected its ratification of 10 of 16 such treaties to reservations, declarations and understandings that attempt to limit the application of such treaties to the U.S. (David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process at 136-66 (3d ed. 2001).)
We have seen this phenomenon in a prior post‘s examination of the U.S. ratification of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and by another post’s noting that Protocol II to the Geneva Conventions has been languishing in the U.S. Senate for 25 years with no action on presidential requests for advice and consent to U.S. ratification of that treaty. Other posts examined the policies toward the ICC in the Clinton, George W. Bush and Obama Administrations.
According to Ignatieff, the development of mechanisms of international criminal justice “was supposed to rescue the possibility of universal justice from the revenge frenzies, political compromises, and local partialities of national justice.” This has not been the case, however, in his opinion, because “international justice turns out to be as much the prisoner of international politics as national justice is of national politics. Indeed, given the stakes, international justice may be more partial, that is, more politicized, than national justice.”
Therefore, he wonders if the creation of the international criminal tribunals—Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the ICC —has been worth the effort and costs. From 1993 through 2009, he says, these tribunals collectively cost their donors $3.43 billion, but only 131 convictions were obtained.
In the next breath, however, Ignatieff seems to say that the tribunals have been worth all the trouble. He says that no one now is dying from atrocity crimes in Bosnia, or in Cambodia, Sierra Leone, or Rwanda, which have had special international criminal tribunals. “Justice—imperfect, partial, expensive—has been done and even been seen to be done. In these places, murderous rages have subsided. Some have reconciled. States have achieved stability. People are moving on. One of the reasons for this may be that in some cases justice was done.”
Although I share Ignatieff’s view of the imperfections of the mechanisms of international criminal justice and of U.S. (and other great powers’) resistance to application of such institutions or norms to themselves, I do not agree with his more pessimistic assessment of the development of international criminal tribunals.
First, he pulls the number of convictions at 131 from a table of results (as of December 31, 2010) in the Scheffer book without mentioning or considering these tribunals’ other results according to that table . Nor does Ignatieff attempt to update the table.
Let me first update that table and then discuss the overall results of these tribunals. My examination on April 1, 2012, of the websites for these tribunals revealed the following results with respect to individuals who have been charged with crimes by said tribunals:
According to this table, Ignatieff understates the convictions by 22, but more importantly he ignores the 16 who have been referred to national courts, the 42 who are still in pre-trial or trial proceedings and the 21 who are still fugitives. Thus, there eventually may be additional convictions for the crimes that have been charged. Moreover, these courts are not machines to produce convictions; they are intended to provide due process guarantees to those charged with crimes, and the 71 individuals who have had charges withdrawn or dismissed or who have been acquitted or who have died before their trials could be completed suggest that these courts have been operating fairly.
Second, Ignatieff ignores the fact that the existence and operation of these tribunals have given incentives and programs to various countries to improve their judicial systems so that eventually they can try individuals for the crimes within the jurisdiction of these international courts. Indeed, 16 of the individuals who have been charged with crimes by these tribunals have had their cases transferred to national court systems. As previously noted, the ICC’s Rome Statute has provisions incorporating the principle of complementarity whereby the ICC defers to national prosecutions by competent national judicial systems.
Third, Ignatieff also ignores the fact that these tribunals have been important in developing a more elaborate international law regarding genocide, crimes against humanity and war crimes, and their precedents can be and are being used by other courts and agencies involved in cases or other proceedings regarding international human rights.
Fourth, Ignatieff fails to acknowledge that these tribunals are only one part of a complex, interactive global struggle against impunity for the worst crimes of concern to the international community. Various posts already have discussed many of these pieces to the puzzle, and a prior post summarized this interactive network
Finally, in my opinion, these tribunals have been successful for the foregoing reasons. The peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further developments, I am confident, will occur.