Arrogance of US Congress - A.G. Noorani - 17th March, 2012

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THE political fallout of the highly offensive resolution on Balochistan, moved in the US House of Representatives by Dana Rohrabacher in February, is all but over.
What needs attention is a marked tendency in the US Congress, in the last two decades particularly, to pronounce on matters beyond its ken and competence and in wilful disregard of the interests and sentiments of other nations. It is this pattern of behaviour which demands notice and calls for strong censure. It affects the Third World as a whole.
There are three aspects to it namely, palpable and continuous violation of established rules of international law and the UN Charter; the responsibility in that law of the US government account to other states for the behaviour of Congress; and, more ominously, the political and diplomatic implications of congressional excess.
As Oppenheim’s classic on International Law says, “a state bears responsibility for its conduct in breach of its international obligations”.
Article 2 of the UN’s Charter lays down certain basic principles which bind its members. One (para 4) binds the members to refrain “from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations”. The latter, a blanket ban, must be read with Article 1 which sets out those ‘purposes’. Chief among them is “to develop friendly relations among nations based on respect for the principle of equal rights” of peoples.
As we shall see, the US Congress has been systematically fomenting regime change or secession or both in countries more than one; not by mere resolutions but by statutes, Acts of Congress.
This is incontestably a violation of international law. Equally incontestable, however, is the accountability of the US government for such transgressions to the aggrieved states. It cannot shirk its responsibility by pleading that it has no control over its legislature.
As Prof Ian Brownlie puts it, “a state cannot plead the principles of municipal law, including its constitution, in answer to an international claim”. The legislature is a vital part of state organisation. “It may happen that, particularly in the case of treaty obligations, the acts and omissions of the legislatures are without more creative of responsibility”; that is, if the legislature itself violates international law or a treaty. Oppenheim puts it even more clearly, that “a state bears full international responsibility for such legislative acts of parliaments as are contrary to international law”. The UN Charter is in law a binding treaty. Article 27 of the Vienna Convention on the Law of Treaties is explicit. “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.
The responsibility of the US is all the greater for the fact that successive administrations have merely gone along in the excesses by one Congress after another, for their own ends of domestic politics. The series of excesses should put the Third World on notice. How they react to an individual case is a matter of diplomatic prudence depending on the actual circumstances.
First in the series comes the Cuban Democracy Act, 1992. Its aim was made clear in the congressional ‘findings’ unique to American statutes. One such finding was to promote “a peaceful transition” in Cuba; i.e. regime change. Fidel Castro was unmoved.
In 1996 came the Cuban Liberty and Solidarity Act. Its declared purpose was “to seek international sanctions against the Castro government in Cuba, to plan for support of a transition government leading to a democratically elected government in Cuba”.
The act was signed by the US president.
In 1996 was enacted also the Iran and Libya Sanctions Act. The president was authorised to impose sanctions if a person had made an investment of $40m or more “that directly and significantly contributed to the enhancement of Iran’s ability to develop petroleum resources of Iran”. The same curb was applied to Libya. This law set a precedent.
The innovation continues to this day affecting many a state. The best statement of the law on this point was by Britain’s attorney-general, Sir John Hobson, on July 15, 1964. A state “acts in excess of its own jurisdiction when its measures purport to regulate acts which are done outside its territorial jurisdiction by persons who are not its own nationals and which have no, or no substantial effect within its territorial jurisdiction”.
The Iraq Liberation Act of 1998 broke new ground by openly advocating regime change. Section 3 said “It should be the policy of the United States to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.” In the same arrogant spirit came the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003.
These are open laws. However, Tim Weiner reported in the New York Times of Jan 26, 1996 that “a secret bill passed on Dec 31, 1995” authorised a “$18m covert action to change the nature of the government of Iran”. None can tell how many such bills were secretly enacted since and went unreported.
All this has passed muster because since 1992 the US emerged as the sole superpower. This further strengthened the myth of American exceptionalism. Its corollary, as the British lawyer, Philippe Sands, Q.C. put it “international law is only for others”.
The writer is an author and a lawyer based in Mumbai.

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