Sarah Cleveland Defends the “Obama-Clinton” Approach to International Law

by Julian Ku

I had the good fortune of participating in a symposium last week sponsored by the University of Virginia Law School’s John Bassett Moore Society.  Entitled “The Obama Impact”, the symposium explored the impact of the new administration on international law and policy.  I have already shared my views on this subject here and I took the opportunity during my visit to rebut the United Nations’ claim to “indispensability.”  But the main action at the symposium was the keynote address by Sarah Cleveland, Counselor on International Law in the U.S. State Department’s Office of the Legal Adviser.  Cleveland, who is also a Columbia Law School professor, offered one of the most forthright and clear explanations of the new administration’s approach to international law.  A summary can be found here, along with a recording of her address.  But below is a key excerpt:

“I would say that the administration has articulated an Obama-Clinton doctrine, a vision that reflects commitments to four elements,” Cleveland said. “The first is multilateral engagement. This was a consistent theme of the president’s campaign and has been a consistent theme of his first year in office.”

Other elements of the doctrine are universality, or the idea that all men are created equal, and the legitimating force of law, which suggests that law gives strength and legitimacy to government action.

“Finally, these goals are to be achieved through a principled pragmatism and the exercise of smart power: the intelligent use of all means to our disposal, including diplomacy, promotion of democracy, development and human rights,” Cleveland said.

Cleveland’s framework is interesting, but I’ll note simply that few of the things she describes are substantially different from things that Condi Rice and John Bellinger would have said.  The devil is in the details, and so far there is not as much a difference as some of the campaign rhetoric suggested.  (Not that this is a bad thing).
UPDATE: Her boss, Harold Koh, shared a few thoughts with John Bellinger today as well.

Experts Release Report Explaining that International Law Can Help Suppress Piracy

by Julian Ku

The Academic Council on the United Nations System (ACUNS), in partnership with ASIL and the One Earth Future Foundation, have released a report entitled: “Suppressing Maritime Piracy: Exploring the Options in International Law”.  It is a useful report, and it is the product of a very smart and knowledgeable group of international law experts including friends of this blog like John Bellinger, Eugene Kontorovich, David Glazier, and Beth Van Schaack.  But like many of these committee panel reports, it doesn’t really come to any conclusion or consensus on the legal problem of how to encourage nations to punish piracy (at least not as far as I can tell).  But it is at least a start in the conversation.  My own view is that nations just won’t have the right incentives here and that ultimately, this is going to be dealt with by better self-help mechanisms on merchant ships. But I defer to the judgments of these experts, whose ideas a worth reading.

Are President Obama’s Assassinations of U.S. Citizens Constitutional?

by Julian Ku

The NY Times Opinionator has a nice roundup of lefty-blog reaction to the Obama Administration’s claim of the legal authority to kill and assassinate U.S. citizens abroad (and its admission to having already done so). Most lefty-blogs seem unconcerned about this policy, with the notable exception of Glenn Greenawald. From a legal perspective, the relative lack of outrage among the lefty-blogs/Obama supporters really does open the door to charges of hypocrisy. (One searches in vain on Balkinization for the outrage, for instance).  Or have they joined the “Dark Side” where such bloggers famously accused Dick Cheney and John Yoo of residing?  Here’s why these assassinations/killings pose such a real legal problem, especially under their previously stated views of how U.S. law should work.

It is an article of faith of many critics of the Bush policies that the detention of U.S. citizens as enemy combatants is almost always illegal, that the U.S. is bound by constitutional requirements even when acting abroad in a war zone, and especially when it is acting against U.S. citizens.   But if one believes all of these things, then one cannot possibly believe that deliberately assassinating U.S. citizens is constitutional.  As I’ve said before, if the U.S. cannot designate a U.S. citizen as an enemy combatant without a hearing (and this is now a requirement of U.S. law), then I can’t quite see how the U.S. can at the same time deliberately assassinate that same U.S. citizen without a hearing.  Am I missing something?

As some of the commenters have pointed out, the nationality of the victim is not that important from the perspective of international law.  Under international law, the main question is whether there is legal authority to kill or assassinate anyone, much less one’s own nationals.  But even under international law, as readers of Ken Anderson’s posts here and at Volokh know, it is still not all that clear.   Indeed, there seems a more than plausible argument that certain kinds of assassinations, as currently executed by the Predator drones, could indeed constitute a violation of the law of war.

In any event, if the U.S. is going to pursue this policy, it should openly defend its legality.  As Stuart Taylor suggests, now might be a good time for Harold Koh to earn his keep over at the State Department and lead a robust legal defense of U.S. practice before the world community and in NGO circles.  And what better place to launch this defense do so than here at the Opinio Juris?

Sleepless in Copenhagen

by Dan Bodansky

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(Cross posted on Smith School of Enterprise and Environment)

Copenhagen, December 19 – The Copenhagen conference limped to a finish mid-day Saturday after “working” throughout the night. These all night sessions on the closing day are becoming a COP ritual, with people spending most of their time waiting around the conference room while small huddles of key delegations try to find a face-saving way to declare victory and go home.

The issue last night was how the so-called Copenhagen Accord that President Obama had personally helped to broker during his 12 hour touchdown in Copenhagen on Friday would be reflected in the official decisions of the conference. The Danes proposed that the Copenhagen Accord be adopted as a COP decision, but a small group of countries that had played the spoiler role throughout the conference (Sudan, Venezuela, and Bolivia, joined last night by Cuba and Nicaragua) objected, arguing that the Copenhagen Accord be included simply in a “miscellaneous” (or “MISC”) document, with the same status as the submission, say, of Tuvalu. Ultimately, the impasse was broken through a decision to “take note of” the Copenhagen Accord, giving it some status in the UNFCCC process but not as much as approval by the conference of the parties.

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The debate last night continued the theme of legitimacy that I discussed in my previous post. The spoiler countries couched their arguments in the language of legitimacy, arguing that adoption of an agreement made by a limited group of countries behind closed doors would be illegitimate and undemocratic. (The rhetoric on this was really quite amazing.) Since the Copenhagen Accord had been initially agreed among the US, China, India, Brazil and South Africa, joined later by the UK, Germany, and France, among others, and since the agreement had been endorsed by all of the UN regional groups, this led to the bizarre spectacle of a handful of countries essentially thumbing their nose (through UN procedures) at a decision personally agreed by the heads of state(or government) of all of the major world powers and endorsed by the vast majority of countries at the meeting.

Two other quick observations about Copenhagen. First, the Conference revealed the deep fissures among developing countries on the climate change issue and the complete breakdown of the G-77 as a negotiating block. In the closing plenary last night, Papua New Guinea openly said that in the Copenhagen Accord negotiations on Friday, proposals for stronger language about emissions reductions (which small island states had desperately sought) had been blocked by major developing country emitters (i.e., China and India), not by developed countries. He went on to chastise other developing countries for sending mid-level negotiators to the final meetings where the Copenhagen Accord was hammered out, rather than their heads of state – a signal of disrespect to the heads of state in the room working on the deal.

Second, the Conference brought home for me the power of the internet as a source of information. Throughout Friday, participants inside the Bella Center who had sweated blood to get their names on the small list of those who were admitted had virtually no idea what was going inside the building. This included not only environmental and business observers, but 99% of the government delegates – in essence, all but the extremely small number of people actually working on the deal. As the day unfolded, I found that the most reliable source of information was not what people were saying inside the conference hall (virtually all of which was simply rumor) but rather the AP pool twitter site, which came from reporters staked out around the room where the negotiations were actually being conducted. So, ironically, rather than spend the time, money, and carbon emissions to come to Copenhagen, one could have followed the conference equally well (or, in some respects, better) in the comfort of one’s own home!