‘American Exceptionalism’ means USA should be regarded above international law norms

By Harith de Mel

Thursday the 22nd of March was a day Sri Lanka was given a lesson in International Law.

This is not to suggest we are inadequate in our understanding of this fascinating subject but events preceding suggest that we have either not comprehended the reality of ‘International Law’ or have been ignorant of it in the wake of International relations.

As the biblical saying goes one must first take the log out of ones own eye before tending to the rod in a friends eye akin to ‘physician heal thyself’. An angry reaction from the Sri Lankan population was to this effect; that the American military policies continuously violate human rights and commit war crimes in many forms. Substantially correct as that maybe first that clearly does not in any legal sense justify any alleged violations of the same by Sri Lanka.

Secondly one may ask but what about the rule of law which suggests that everyone should be equal before the law so then why the double standards? The reasons are found in the practice of International Law itself. International law in its nature is not comparable to a domestic legal system. Much remains in theory (Law) which is not in practice (Relations).

That is not a weakness of the system but its dynamic nature itself. It must be taken with a pinch of salt, in our case a handful. Equality before the law in International Law is a rare quality. Certain states enjoy a better status in International Law than others such as America, China, Russia as they are in fact global super powers.

The first reason for this is that in International law there is no one objective body that can decide what is legal and what is illegal. For example Sri Lanka’s 2009 efforts to rescue the north was termed a ‘humanitarian mission’ by our interpretation. However certain other states interpret it to be a ‘massacre’ or a ‘killing field’. When America bombs countless territories costing innocent lives, to kill a few terrorists; that is not a ‘massacre’ but of urgent legitimate national security’ interests’.

This is due to each countries subjective interpretation of their actions in International Law. However clearly certain interpretations are ‘more correct’ than others due to the nature of International Law and thus we see the United States unchallenged and Sri Lanka borne with a resolution.

Secondly and controversially so in International law there is a doctrine by the name of ‘American Exceptionalism’. This suggests that due to the American position as a global super power it is functionally necessary that they are considered as somewhat above the norms of International law. This is explained by theorists not as an attempt to subvert International law but to assert that the domestic laws of America are by far better than those placed by International laws so there is no necessity to comply as such.

There is a certain justification in that a country like America can subvert International Law for the greater good of the world as sometimes International Law is toothless in the wake of true adversity, as well as be the enforcer of International law when other states stray in the absence of a unified mandatory system of enforcement This is somewhat a justificatory reason as to American concern with the position in Sri Lanka as well as its double standards as to its own and its close ally Israel.

If one contends this is absurd think no further than the United Nations Security Council which is an embodiment of this same notion of global super powers superiority. Why only USA, China, Russia, United Kingdom and France as permanent veto members?

The next lesson we learnt is that in International Law substantial matters can be in fact be secondary. As the Sri Lankan delegation at the UNHRC allege the resolution against Sri Lanka was politically manipulated by concerns other than the actual issues such as supposed war crimes and human rights violations.

This shows that even if Sri Lanka had done their utmost to adhere to the International Law obligations both before and after conflict this resolution still may have been passed. One may ask then what our tool to avoid such is as it seems inescapable. The tool was clearly the fine art of diplomacy. Diplomacy is the true language of International Law.

This is of course mainly to be done by the Foreign Ministry (External Ministry) which will also direct the various ambassadors and diplomats of Sri Lanka all over the world. This goes to show however that in general, retired service persons, defunct politicians and others lacking an education in the subject and its finesse are not in the least suited for the job.

If we are scratching our heads today as to why the resolution was passed one may suggest it was not due to any other reason but a lack of timely and effective diplomacy.

What we saw recently with the advent of the resolution was an attempt at hurried diplomacy which closely bordered desperation.

One can suggest that the fire should be doused when the sparks are seen and not when it is ablaze. One such example being the foreign Minister of Sri Lanka refusing an invitation from the Secretary of State of the United States in March 2012. On a reading of the resolution one understands it to be a mere statement of existing obligations.

Further according to International Law Sri Lanka suffers no substantial loss of its sovereign capacity. However one must note the symbolic effect of this resolution and take it seriously that the International community now does have one foot in the door. Further complacency will only result in the door being opened wider.

Mere subservience to international pressure too will result in the same.

The only answer is a nationwide response for substantially amending grievances within the post conflict nation and a skilled diplomatic programme which balances all interests to avoid instances such as these in the future. courtesy: Daily Mirror