Digest of United States Practice in International Law 2011
The Office of the Legal Adviser publishes the annual Digest of United States Practice in International Law to provide the public with a historical record of the views and practice of the Government of the United States in public and private international law. The complete 2011 Digest is available at the left in PDF format. Individual chapters are also available at the left. Documents excerpted in the 2011 Digest that are not readily available elsewhere can be accessed through the link at the left for the chapter in which the document is excerpted.
The 2011 Digest provides a historical record of key legal developments in 2011. Legal Adviser Harold Hongju Koh summarized the contents of the 2011 Digest in the Introduction, stating in part.
The Arab Awakening presented a variety of challenges for the practice of international law in 2011. In addressing events in Tunisia, Egypt, Libya, Bahrain, and elsewhere, the United States government carefully applied what Secretary of State Hillary Rodham Clinton has called "smart power," utilizing a wide array of foreign policy tools to fit the needs of the particular circumstance. In Libya, the U.S. took a multilateral approach, acting quickly at the UN Security Council to pass historic resolutions that established an arms embargo and sanctions regime and made the first ever unanimous referral to the International Criminal Court. Based on Security Council Resolution 1973’s authorization for "all necessary measures" to enforce a no-fly zone, and consistent with the War Powers Resolution, the United States was part of a limited, NATO-led military mission in Libya. Various additional legal issues arose during the U.S. response to the situation in Libya, including those related to securing a protecting power, addressing the situation at the United Nations Human Rights Council, recognizing the new Libyan government, and arranging for funds to be made available to the new government using assets of the former regime that had been frozen pursuant to Security Council resolutions. These issues form a significant part of the discussion in several chapters of the 2011 volume of the Digest.
In our approach to counterterrorism, applying smart power has meant a continued commitment to the rule of law. In May 2011, the United States completed a lawful operation that resulted in the death of Usama bin Laden, a legitimate target in our conflict with al-Qaida. The United States continued to pursue other leaders of al-Qaida, while ensuring, consistent with President Obama’s direction, that all our actions—even when conducted out of public view—comply with our laws and values. The U.S. government’s counterterrorism efforts outside of Afghanistan and Iraq have focused on those individuals who present a significant threat to the United States and whose removal would cause a significant disruption of the plans and capabilities of al-Qa’ida and its associated forces. We have worked to uphold our values and the rule of law in our detention and interrogation policies with regard to terrorism suspects, including pursuing prosecution of detainees through Article III courts and reformed military commissions.
In 2011, the United States government repeatedly brought international law to bear in the domestic law context. For example, the Office of the Legal Adviser continued in 2011 to pursue compliance with the International Court of Justice judgment in Avena, by promoting legislation—the Consular Notification Compliance Act—and supporting the request for a Supreme Court stay in a death penalty case involving an Avena defendant. We encouraged domestic courts to weigh international law and foreign policy considerations with suggestions or statements on behalf of the State Department in cases involving the immunity of foreign officials; cases considering the constitutionality of legislation implementing international treaty obligations; cases challenging U.S. state laws concerning immigration; and cases seeking relief outside of the compensation arrangements the United States agreed to with Germany and Austria for claims arising out of World War II. In our initial amicus brief in the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum, we argued that a corporation can be held liable under the Alien Tort Statute for violations of the law of nations. In the Zivotovsky case, we asked the Supreme Court to respect our long-standing policy to recognize no state as having sovereignty over Jerusalem as a crucial part of our efforts to further the Middle East peace process.
Negotiating, joining, and implementing treaties and international agreements remained an important part of U.S. efforts to promote international law in 2011. We secured advice and consent to the Mutual Legal Assistance Treaty with Bermuda and the Bilateral Investment Treaty with Rwanda. In October, we used congressional-executive agreements to adopt free trade agreements with the Republic of Korea, Colombia, and Panama. Also in 2011, the United States signed maritime law enforcement cooperation agreements with Senegal, Nauru, Tuvalu, and Gambia and an agreement with the members of the Arctic Council on aeronautical and maritime search and rescue. The United States actively assisted the 17th Session of the Conference of the Parties to the UN Framework Convention on Climate Change in Durban in launching a process to develop an agreement by 2015 that will apply beginning in 2020. The Obama administration also sought Senate advice and consent for several important treaties in 2011, including protocols to two nuclear weapon free zone agreements; an agreement on preventing illegal, unreported, and unregulated fishing; and Additional Protocol II to the 1949 Geneva Conventions, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts.
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