Is there a strong legal guarantee that the U.S. can give to another country that it won't attack them?

Question

Is there a strong legal guarantee that the U.S. can give to another country that it won't attack them? I think because U.S. policy tends to drastically change every time the administration changes, some countries are reluctant to come to any sort of peace agreement with the U.S. I am talking about countries like North Korea and Iran. Is there a sort of legal guarantee that's legally binding that can convince a country that the U.S. won't attack them? If not, is there any non-legal guarantee the U.S. can offer on the table?

Answer 1

No such guarantee would be meaningful if the US administration and congress change their opinion. Whatever they write in law or sign, they can undo -- if not legally then in practice.

• The US had ratified a treaty with Panama about who had control over which part of the Canal zone, yet they deposed Noriega.
• The US had given security guarantees to Ukraine when Ukraine surrendered their nuclear weapons, and then failed to follow them.
• The US had made a deal with Gaddafi to make him drop his WMD programs and then supported his overthrow.
• For that matter, the US had made a deal with Iran on nuclear issues and it is generally understood that Iran held that promise, yet the US broke the deal.

The only way for another country to be safe would be to join another strong alliance, or to retain sufficient military leverage to make an US attack unlikely.

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On the other hand, US foreign policy doesn't have to "change drastically" when the administration changes. Johnson and Nixon both fought the Vietnam war, Bush and Obama fought the Iraq counterinsurgency, and so on.

Answer 2

Yes, such guarantees are called Mutually Assured Destruction. As long as a country can reasonably presume that an attack on foreign territory will result in severe annihilation of their own civilian population, they will do everything in their power to prevent such a conflict. As an example - the US never went into a direct war against the USSR and is extremely unlikely to start a war against modern day Russia or China.

Therefore any country seeking to secure its borders against foreign invasion should stockpile as many nuclear warheads as possible. Of course, getting to the stage where you possess hundreds of ICBMs is difficult and the US might invade you before you get there - e.g. Iran is targeted by Western sanctions precisely for this reason.

As for legal guarantees - no such thing could ever exist for a country possessing nuclear weapons. Remember that laws are only as good as the authority enforcing them and there isn't an authority on Earth capable of enforcing law on the US government, precisely because such an authority would risk nuclear war if they tried. Ukraine learned this lesson in a hard way when they've lost Crimea despite signing a non-aggression pact with Russia in exchange for giving up their nuclear arsenal.

Answer 3

In theory, the US could enact a treaty (or any other policy statement) as a Constitutional amendment, which could only be nullified by another amendment (or a Constitutional convention). In practice, no such amendment would ever pass for any reason short of complete subjugation, in which case the guarantee would not be necessary.

A defense pact (mutual or unilateral) might not guarantee that said defense will happen, but it's strong evidence that the US isn't planning to attack.

You can also infer that nations in the Visa Waiver Program are relatively safe. If we let a nation's citizens enter US territory almost at will, war with that nation would be inconvenient.

Answer 4

Once upon a time, the U.S. invited the entire world to make such assurances.

The U.S. State Department explains that the U.S. suggested the Kellogg-Briand pact because it would be politically correct, but (in practice) far less binding than a bilateral alliance with France. And in practice, the pact did nothing to prevent World War II.

Answer 5

While no guarantee, a country could try to join NATO. The key element of the North Atlantic Treaty preventing attack from the US would be Article 5.

Article 5
The key section of the treaty is Article 5. Its commitment clause defines the casus foederis. It commits each member state to consider an armed attack against one member state, in Europe or North America, to be an armed attack against them all.

If the US initiated an attack on a fellow NATO member, it would be treated as if they they had attacked all NATO members (including themselves at least until their own membership was rescinded).

That might just be enough of a deterrent for the US to pursue other avenues.

Curiously, the only time Article 5 has actually been invoked was by the United States after the September 11 attacks in 2001. After confirmation on 4 October 2001, eight official actions were undertaken by NATO in response.

Costa Rica has not had a standing army since 1869, but is an active member of NATO, primarily (IMHO) for the protection Article 5 gives against its neighbours.

Answer 6

In general, it cannot be done. We call nations "sovereign" for a reason. They retain the ability to do as they like, limited solely by their willingness to pay the price for their own actions (e.g. sanction, war).

The closest one might get would be to add an eternity clause to the constitution. These are self-referential clauses which strive to make a strong guarantee that the constitution cannot change. This may be a complete or partial guarantee, but it always guarantees that the eternity clause itself cannot be revoked or superseded.

A few countries have these (Wikipedia lists 7), but the US does not. In theory the US could pass an amendment to add one, though I would consider it highly unlikely it would do so for the purposes you are specifying. Once a country has such a clause, they could in theory use it to enshrine legal protection for another nation. In practice, such clauses are used to enshrine the structure of the nation's government, seeking to prevent it from being undermined.

The usefulness of such clauses is debated. A quick search leads to many scholarly articles debating the philosophy and pragmatics of such clauses. However, at a very shallow level, we can see the limits of such a legal practice:

• A nation may simply cease to uphold its constitution, failing to legally challenge actions which are in violation of their constitution. This may be seen as a major failing of the nation's judiciary branch, but one must admit that a clause is nothing but words unless the will of the government is behind them (and this may extend to the will of the people). In such a case, one acquired a "strong legal guarantee," but it turned out not to be as powerful as those words may sound.
• Language requires interpretation. One needs only look at the current debates in the realm of US constitutional law to see how complex interpretation of amendments can be.
• Eternity clauses are known to be removable via "the right of revolution." A revolution may install new leaders and a new constitution, with or without the clause. A particularly nuanced case may be a bloodless revolution where everyone agrees to reform the nation exactly as it was, save for the clause. To my knowledge, no eternity clause has ever been tested in this way.
• Some actions which nations can undertake may be beyond after-the-fact reparations. It takes time for a legal challenge to be brought forth. If the damage is done before such challenges finish, then that's that. For some actions, monetary reparations are sufficient and we can look at the world financial system for examples of how a nation may be held to their promises in a limited fashion. For others, monetary damages are insufficient for the guarantee one seeks.

These are issues which all sovereign nations must deal with, the US included.

Answer 7

The strongest legal guarantee that can be made would be a treaty with the United States. Treaties have force of law in the United States, according to the Article VI, Paragraph 2 of the Constitution of the United States of America (emphasis mine):

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Note that treaties require the consent of two thirds of the U.S. Senate in order to be ratified and gain force of law, as per Article II, Section 2, Paragraph 2. The President just saying something (or even signing something) does not give it any force of law. The President does not have a unilateral authority to make treaties (nor does anyone else.)

He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur

Of course, the United States, like every other country, is a sovereign nation. As such, it can choose to withdraw from a treaty or just to break one if it chooses to do so, regardless of legalities. The only practical way to stop any nation from doing this is threatening counter-actions (e.g. sanctions, war, nuclear attack, etc.) that would make withdrawing from or breaking the treaty not worthwhile in the eyes of those making the decision.

Answer 8

As the lone world military superpower, which spends many times more than the next ten to twenty nations on the top spending list, with most of the other nations on that list formal allies..... no, there really are no assurances that the US can give that we won't just decide to violate international law and attack and invade another nation. Basically, because of our sheer military (especially) and economic muscle, we can do what we please, and can usually strong-arm other nations into compliance with our wishes. With that kind of absence of check on our power and ambition, any nation at risk would have to rely on our unwillingness to live with international disapproval from our allies.

I state this with surety because that's exactly what happened with the second Iraq conflict. With false pretenses, the US not only invaded, conquered and occupied a sovereign nation, not in self-defense (which is illegal under international law), but did so with impunity and with the approval and assistance of other nations.

The invasion of Iraq in 2003 was a violation of international law, an independent inquiry in the Netherlands has found.

In a damning series of findings on the decision of the Dutch government to support Tony Blair and George Bush in the strategy of regime change in Iraq, the inquiry found the action had "no basis in international law".

.....During the build-up to the war, in 2003, the US abandoned an attempt to get a UN security council resolution approving the invasion when it became apparent it would not be granted. In 2004, the UN secretary general at the time, Kofi Annan, said the invasion was illegal.

The Guardian: Iraq invasion violated international law, Dutch inquiry finds

Any assurances the US might offer would be viewed with great skepticism, given our recent history.

Answer 9

Yes there are some options.

a) If a country has access to nuclear weapons and rockets carrying them with unknown position (like the northern fleet from russia). There is a good chance that the USA will not attack.

b) if the country has enough military power, that a conflict becomes costly. Then, chances are also pretty good.

c) if your country is a NATO member. In this case the US do not attack, because your country already surrendered.

Otherwise, the states can do what they want.

Answer 10

This will depend upon the strength of international law which was originally based upon the customary law between nations. There are many institutions which between them mediate international law, for example, the UN and regional power blocs such as the EU.

The main deficiency in international law is a system of enforcement. But it’s worth remembering that it took also a great deal of time to engineer nation states and hence a system of enforcement at that level. It was only relatively recently that Italy and Germany was more of a patchwork of principalities than nation-states, so one ought to recognise that an international system of law backed by a military or police will take some time. This, for example, has been a stumbling bloc in the EU, which was originally not an economic union and then only in steel and coal. Since then, the powers of the EU, has expanded considerably, but without a corresponding political union, which is generally argued under the notion of a democratic deficit. For example, Yanis Varafoukis, an economist, has argued that the EU is simply a neo-liberal institution and that it needs to move on from that position if it is to be properly embraced by the people’s of Europe, and just as importantly, European politicians who are jealous of the powers invested within them as sovereign nation states.

The main principle there is subsidiarity. That law, and hence the force that enforces that law, should act at the level that is natural or commensurate to it. For example, national law at the national level and international law at higher levels.

However, it’s unlikely, that military force will be at the disposal of the UN anytime soon (they do have peace-keeping forces). Nevertheless, there are good arguments for both an international police force and military. Consider the complete lack of action internationally which occurred during the Rwandan genocide under the watch of the US, who refused even to countenance the word ‘genocide’ since this would have compelled action. An apology decades after this horrific event is not enough. Also consider how an internal police force might have acted in the tragic terrorist action of 9-11. Under such an international task force, Iraq may not have been illegally invaded under the pretext of stopping so-called ‘terrorism’.

However, one ought to note when such powers arise when there are many contesting powers of roughly equal power. The dupoly of powers during the era when we had two contesting super-powers isn’t best suited to have such a system arise, and nor during the uni-polar power regime under the aegis of the US. The rising strength of South America, India, the EU and China may eventually force such a system into existence.

Answer 11

No.

By the Constitution, no president or Congress can legally bind the action of a future president or congress.