Digest of United States Practice in International Law 2009
The 2009 Digest is available at the left in PDF format. Documents excerpted in the 2009 Digest that are not readily available in hard copy or electronic format can be accessed through the link at the left to the “List of Documents.” Individual chapters and a list of key words and key phrases that may be useful in searching the Digest are also available at the left.
The 2009 Digest provides a historical record of key legal developments in 2009. Legal Adviser Harold Hongju Koh summarized the contents of the 2009 Digest, stating in part:
In 2009, as this volume reflects, a new United States administration, under the Presidency of Barack Obama, took office and pursued important initiatives demonstrating its respect for the rule of law. For instance, the United States has sought to ensure its detention operations, detainee prosecutions, and uses of force are all consistent with the laws of war. In one of his first actions after taking office, President Barack Obama unequivocally banned the use of torture as an instrument of U.S. policy and instructed that all interrogations of detainees be conducted in accordance with Common Article 3 of the Geneva Conventions and with the revised Army Field Manual. The executive branch also articulated a revised, narrower legal basis for its authority to detain individuals, based on the 2001 statutory Authorization for the Use of Military Force (“AUMF”), and made clear that its interpretation of the AUMF would be informed by the law of war. The administration also worked with Congress to improve the legal framework governing military commissions. Finally, as the President made clear in his Nobel lecture, “[w]here force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. . . . [E]ven as we confront a vicious adversary that abides by no rules . . . the United States of America must remain a standard bearer in the conduct of war.
The United States also resumed our multilateral engagement in many different diplomatic fora, while remaining fully engaged in others. With the International Criminal Court, the United States participated for the first time as an observer in the Eighth Session of the Assembly of States Parties to the Rome Statute. With the Human Rights Council, the United States became a member of the Council for the first time. With the climate change negotiations, the United States engaged at the highest level, and President Obama and the leaders of key major economies reached consensus on the Copenhagen Accord in December 2009. The United States submitted a written statement and written comments to the International Court of Justice concerning the UN General Assembly’s request for an advisory opinion on the question “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” and I was privileged to deliver an oral statement of the U.S. views to the Court in December.
Promoting the development of international law also played a key part in the United States’ economic diplomacy agenda, including in the areas of trade, sanctions, claims settlement, and private international law. Arbitral tribunals issued awards in favor of the United States under the Softwood Lumber Agreement and the North American Free Trade Agreement in 2009, and the Iran–United States Claims Tribunal issued a partial award in favor of the United States. The United States also continued to participate actively in the World Trade Organization’s dispute settlement mechanism and received favorable decisions in a number of disputes in that forum. In the area of private international law, the United States signed the United Nations Convention on Contracts for the International Carriage of Goods, Wholly or Partly by Sea (“Rotterdam Rules”) and the Hague Convention on Choice of Court Agreements (“Choice of Court Convention”) and participated actively in the negotiations concluding the Convention on Substantive Rules for Transfers of Intermediated Securities (“Geneva Securities Convention”).
The United States also pursued initiatives to renew the rule of law by reviving our treaty and agreement making process. For example, in 2009, we deposited or exchanged instruments of ratification to bring into force more than 70 advice and consent treaties, which is an all-time annual record for the United States. Among these treaties were crucial law of war instruments, tax treaties, an environmental treaty, and law enforcement treaties, including landmark agreements with the European Union on extradition and mutual legal assistance in criminal matters, which entered into force in early 2010. In addition, we negotiated a new treaty to replace the Treaty on the Reduction and Limitation of Strategic Offensive Arms (“START”), signed the UN Convention on the Rights of Persons with Disabilities—the first new human rights convention of the twenty-first century, and supported the negotiation of a new multilateral agreement to reduce mercury pollution.
In 2009 the United States also sought legal and policy-based solutions to a range of other pressing international problems. For example, the United States took the lead on a Security Council resolution concerning sexual violence in situations of armed conflict, which the Council adopted unanimously on September 30, 2009.
The year also marked several important developments relating to the privileges and immunities of foreign states and foreign officials in the United States. The Supreme Court issued one opinion concerning the effect of Presidential and congressional action on a state’s immunity from jurisdiction in the United States (Iraq v. Beaty). The Court issued another opinion holding that a U.S. victim of terrorism could not enforce a judgment against Iran by attaching, under the Terrorism Risk Insurance Act of 2002, certain Iranian property that was unblocked at the time of the lower court decision, and that, in any event, the victim had relinquished any right to attach the property by having already accepted payment under the Victims of Trafficking and Violence Protection Act of 2000 (Ministry of Def. & Support v. Elahi). Within the executive branch, the State Department announced two significant decisions relating to privileges and immunities of foreign diplomatic or consular missions and their personnel: (1) the Department began accepting the accreditation of same-sex domestic partners of foreign diplomatic or consular personnel assigned to official duty in the United States, meaning that accredited same-sex domestic partners now have the same privileges and immunities as other accredited family members whom the Department recognizes as forming part of a diplomat’s household; and (2) the Department also extended exemptions from real property taxes to residences owned by foreign governments and used to house staff of diplomatic missions to the United Nations and the Organization of American States and consular posts. . . .