President-Elect Obama on International Law

by Duncan Hollis

While Peggy, Peter and Ken have provided more overarching views of the impact of Obama’s election and his coming presidency, those readers ready to get into the weeds of what Obama will do when it comes to international law should check out his responses to an ASIL survey done back when the primaries were still in full swing.  You can access it here (the home page of the (redesigned) ASIL website also links to it along with excerpts that reflect Obama’s views on various foreign relations topics).  Of course, the responses to the survey were done with a different audience in mind (Democratic primary voters) and pre-economic meltdown.  I’d blogged about the surveys when they first came out, but re-reading them today I’m struck by how different a posture at least initially our President-elect brings to the job.   Check out his response on how international law relates to U.S. foreign policy: 

Since the founding of our nation, the United States has championed international law because we benefit from it. Promoting – and respecting – clear rules that are consistent with our values allows us to hold all nations to a high standard of behavior, and to mobilize friends and allies against those nations that break the rules. Promoting strong international norms helps us advance many interests, including non-proliferation, free and fair trade, a clean environment, and protecting our troops in wartime. Respect for international legal norms also plays a vital role in fighting terrorism. Because the Administration cast aside international norms that reflect American values, such as the Geneva Conventions, we are less able to promote those values abroad.  

Obama went on to carve out very specific positions on GTMO (“As president, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions.“), torture (“When I am President, America will reject torture without exception“) and his opposition to amending the Geneva Conventions (“I believe that the United States can detain and interrogate suspected terrorists – lawfully and humanely — without amending the laws of war. As Secretary of State Powell argued after September 11th, the Geneva Conventions already allow us the flexibility to do everything we need to protect ourselves. We should be championing the Geneva Conventions, instead of looking for ways to evade or rewrite them.”). 

And for treaty wonks like me, it sure looks like we’ll see some action at the Senate as Obama favors continuing to push for (or in many cases reviving the push for) ratification or accession to several major, multilateral treaties:

There are a number of meritorious treaties currently pending before the Senate. Some of these are clearly in the national interest, such as the UN Convention on the Law of the Sea, the Comprehensive Nuclear Test Ban Treaty, the International Convention for the Suppression of Acts of Nuclear Terrorism, and the Convention on the Elimination of All Forms of Discrimination Against Women. As president, I will make it my priority to build bipartisan consensus behind ratification of such treaties. 

Of these, the Senate has since given advice and consent to the Nuclear Terrorism Convention, but the other three continue to lie before the Senate and are sure to prove more controversial.  

There’s more in the responses on climate change, trade and non-proliferation as well. 

Finally, I found Obama’s response particularly interesting with respect to the use of force, where he lays out a traditional articulation of the U.S. right to self-defense plus a preference for multilateral action in other circumstances: 

I will not hesitate to use force, unilaterally if necessary, to protect the American people or our vital interests whenever we are attacked or imminently threatened. . . . There are some circumstances beyond self-defense in which I would be prepared to consider using force, for example to participate in stability and reconstruction operations, or to confront mass atrocities. But when we do use force in situations other than self-defense, we should make every effort to garner the clear support and participation of others – as President George H.W. Bush did when we led the effort to oust Saddam Hussein from Kuwait in 1991. The consequences of forgetting that lesson in the context of the current conflict in Iraq have been grave.

Reading this, I was struck by the fact that Obama didn’t invoke a need for UNSC approval when the United States uses force other than in self-defense (even the Bush Administration argued that its invasion of Iraq had UNSC approval, which, of course, was highly disputed).  I wonder whether we should read anything into that omission or chalk it up to the answer being the last in a long series in the heat of a campaign season that rarely got into such level of detail?   I guess time will now tell us the answer to that question.

http://opiniojuris.org/2008/11/06/president-elect-obama-on-international-law/

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