Bush = Obama on International Law

by Julian Ku

John Bellinger makes a solid observation in the NYT on the Obama Administration’s general approach to international law.  The bottom line: Obama is basically the same as Bush (at least during the second term) on international law.

Last month marked the one-year anniversary of President Obama’s first signature foreign policy initiative: the issuance of three executive orders ordering the closure of the detention facility at Guantánamo Bay, the suspension of the C.I.A. interrogation program, and the review of all U.S. government detention policies and legal positions. The orders met with wide acclaim in Europe and were heralded as the return of the U.S. commitment to international law.

But one year later, the Obama administration is having difficulty implementing all three directives and has continued many of the Bush administration’s other counter-terrorism policies, including many that are highly controversial with America’s allies. In other areas, such as engagement with the International Criminal Court and compliance with rulings of the International Court of Justice, the administration has so far been less supportive of international legal institutions than its predecessor.

These realities show that the Bush administration demonstrated a greater commitment to international law in its second term than is generally acknowledged abroad, particularly in Europe, and that there are bedrock domestic political constraints in the U.S. that may prevent the Obama administration from living up to expectations.

This is a point worth making. The shape of U.S. foreign policy, and its policy toward international law, is not entirely the creature of the occupant of the Oval Office. Obama is proving this point as each year of his administration passes.

http://opiniojuris.org/2010/02/16/bush-obama-on-international-law/

8 Responses

  1. This is the “You see, we weren’t so bad” argument right?  War in Iraq and torture – nuff said. Puhleaze.
    Best,
    Ben

  2. As I stated here once before, I think Garry Wills proffers a more than plausible explanation for this state of affairs:

    The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the “war on terror”—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order. In the New York Review of Books, Vol. 56, No. 15 (Oct. 8, 2009) 

    The larger argument is found in Wills’s latest book, Bomb Power: The Modern Presidency and the National Security State (2010).

  3. I agree with much of what Bellinger says, but the lesson isn’t that Bush demonstrated a greater commitment to international law in his second term than is recognized — he didn’t — but that Obama has demonstrated far less of a commitment to it than most people expected.  (But not me.  American exceptionalism, sadly, is an ideology that both parties buy into almost equally.)

  4. I think we must distinguish between American exceptionalism – with its clearly intended negative connotations –  and genuine disagreement regarding the status and effect of international humanitarian law, both in our unique constitutional system and in relation to international human rights.  There are also genuine differences between the two administrations in both form and substance.  To say that they have the same general approach in some broad ways is not to say that genuine differences do not exist.

    It is also important to note that many of the current administration’s policy decisions are still significantly affected by decisions of the former administration.  While domestic politics certainly plays a role, the prior administration’s actions still limit plausible choices in dealing with them.

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  1. [...] line: Obama is basically the same as Bush (at least during the second term) on international law. Read more « Curling | IMAO » Blog Archive » Curling [...]

  2. [...] international law positions largely continue the second Bush term positions.  As my Opinio Juris colleague Julian Ku observes, “The shape of U.S. foreign policy, and its policy toward international law, is not entirely the [...]

  3. [...] Now comes John Bellinger’s New York Times editorial (h/t to Opinio Juris). [...]

  4. [...] the result of either leader’s preferred approach on international law.  Professor Julian Ku makes a similar point on OpinioJuris.org. Share: Click here to cancel [...]