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President Obama: New Hope for International Law?

JURIST Contributing Editor Mary Ellen O'Connell of Notre Dame Law School says that while President Barack Obama's initial executive orders are encouraging signs of renewed American respect for international law, robust American recommitment to that seems unlikely in the next four years...


On January 22, President Obama signed executive orders to close the Guantanamo Bay prison, to eliminate secret CIA prisons, and to bring the CIA under the limits of the Army’s Field Manual on Human Intelligence Collector Operations (FM 2-22.3). These steps will get the U.S. back on the road toward compliance with fundamental international law obligations — a path we left so dramatically and publicly with another presidential order: President Bush’s Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”

President Obama’s action, two days after his inauguration, is extremely important for the rule of law in the world. We can certainly hope for similar actions during the next four years. But can we hope for more? Can we expect the United States to return to the more general and robust commitment to international law that our leaders displayed until the 1960s? That, unfortunately, seems unlikely in the next four years. International law has simply been denigrated for too long among America’s foreign policy elite. But I may underestimate the President. He may well have the wisdom to understand what so many of his predecessors did. Complying with international law is the surest way to realize our most cherished aspirations and to recapture our standing in the world. International law is the best means for promoting peace, prosperity, respect for human rights and protection of the natural environment.

But only one day after President Obama signed the order respecting the rights of detainees, the C.I.A. once again used an unmanned Predator drone to attack Pakistan. The media is reporting that the President approved the strike. (Richard A. Opel, Jr., "Strikes in Pakistan Underscore Obama’s Options", N.Y.Times.com, Jan. 24, 2009.) It is unclear whether these strikes have Pakistan’s consent or Afghanistan’s consent—the territory from where they are launched. Pakistan’s president protested the latest attack and Afghanistan’s president has said time and again that killing civilians is counter-productive in the struggle against terrorists. And these attacks often result in the death of innocents. Some estimate that the United States has killed as many as 100 civilians in the series of attacks on Pakistan that President Bush secretly authorized as long ago as 2007.

What explains the new President’s two decisions: one to comply with international law and one to violate it? The President has received a huge amount of advice in recent months on the treatment of detainees; he has likely heard little or nothing about international law’s restrictions on the use of force. In researching The Power and Purpose of International Law, I looked into what lay behind the changes that took place in America with respect to general international law in the 1960s. American leaders until that decade were well versed in international law and demonstrated great respect for it, if not perfect compliance. By the 1960s, this knowledge and respect were demonstrably slipping away. One reason for the change appears to lie with the influence on U.S. foreign policy of Hans Morgenthau and his students.

Morgenthau was a scholar of international law and international relations in Germany when he forced by the Nazis to seek refuge in the United States. When he arrived, he turned decisively away from international law and toward promotion of the United States as the world’s dominant power. His own personal sense of having been controlled by powerful figures – his father, schoolyard bullies, teachers, external reviewers, government authorities, and university deans – may explain why he thought the ultimate goal of all men is the quest for power and that security lay only in having greater power than others. He feared international law would hold the United States back. In his highly influential textbook, Politics Among Nations, Morgenthau wrote an attack on international law basically arguing that international law’s sanctions are too weak to command respect by the United States. Morgenthau’s thinking has had a profound impact in the United States. He and his students launched the realist school of international relations scholarship that continues to hold a highly dismissive view of international law — most students of political science and international relations in the U.S. still read Politics Among Nations (now 60-year-old and in its seventh edition).

By the 1960s, realists dominated foreign policy circles. Few legal scholars were answering their critique of international law. Indeed, in U.S. law school by the 1960s, international law was no longer the prestige subject it had been. Some scholars such as Myres McDougal at Yale and Louis Henkin at Columbia were trying to keep international law “policy relevant”, but the law schools were caught up in the civil rights and women’s movements. The interesting aspect of international law was increasingly the area of human rights and not general international law. A number of top law schools went for years without a prominent scholar teaching and publishing in public international law.

These developments in political science and law have resulted in a decline in respect for and even knowledge of general international law in this country. By the 1990s with the end of the Cold War, a human rights revolution exploded on the international stage. But its scholars and activists have backgrounds in political science or constitutional law.

President Obama studied international relations at Columbia University and law at Harvard when the intellectual emphases were on civil and human rights but not general international law. Many of his new advisers in foreign policy are well known for their concern for human rights but are also associated with pressing for the use of military force even in violation of international law. Indeed, it is understandable that any student of political science in the United States in recent decades would conclude that the best way to show American commitment to human rights is to be willing to use military force in response to human rights violations.

International law, however, emphasizes the peaceful settlement of disputes and non-lethal means to promote human rights. It is clear that in international law, peace is itself a human right and one essential to the flourishing of other human rights. Killing in the name of human rights has inevitably been counter-productive in the long term. Killing innocent civilians to end terrorism may also lead to greater hatred and interest in revenge that further fuels the problem of terrorism.

Complying with international law across the board in areas of human rights, the environment, the economy and the use of force may sound like a radical change for America. But it is change we should believe in.


Mary Ellen O’Connell hold the Robert and Marion Short Chair in Law at the University of Notre Dame. She is the author of The Power and Purpose of International Law (OUP 2008)


January 26, 2009


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Comments:

I share Mary Ellen's concern regarding a decline of respect for international law, especially human rights (just consider the unilateralist attempts to use what are recognizably void putative reservations and declarations while ratifying human rights instruments -- attempts that President Obama should withdraw), culminating with the serial and cascading criminality authorized and abetted by President Bush, Vice President Cheney, and others over the last seven years, but it does beg the question to state that U.S. use of generally selective armed force in self-defense against continual non-state actor armed attacks on U.S. military in Afghanistan emanating from north Pakistan for months, and years, violates international law. Questions regarding proportionality are worth discussing, but the right of self-defense against ongoing armed attacks seems to be generally agreed upon in such a case (yes, there are those who disagree), especially given U.N. S.C. and NATO resolutions after 9/11 regarding use of armed force in Afghanistan against al Qaeda (but use of force against the Taliban has not been adequately justified, given the ICJ's decision in Nicaragua v. United States, etc.). Peace is always preferable, but seld-defense is based in the U.N. Charter as well. ASIL should have a late-breaking panel discussion on these matters!
JJ Paust

January 26, 2009  

Dear Jordan,

In fact there is not jus ad bellum right to attack a viable state when under the rules of state responsibility it is not responsible for violence emanating from its territory. Pakistan must request our help in responding to lawlessness in the border region.

Nor do we have the right to use Afghanistan's territory for these attacks without Afghanistan's consent.

There is nothing in the post-9/11 Security Council or NATO resolutions that obviate our obligation to comply with the rules on state responsibility or other rules governing self-defense. The resolutions only say we have a right of self-defense under Article 51 as a result of the attacks.

Exercising that right must be done lawfully.

Mary Ellen

January 26, 2009  


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