In his latest Slate article, Professor Eric Posner highlights (for non-specialist readers) the questionable international legal foundation of the Obama Administration’s “drone war on terror” in Pakistan, Yemen, and elsewhere (e.g. Libya). The whole idea that the U.S. can infer Pakistan’s consent to the strikes due to Pakistan’s refusal to object to CIA faxes is not terribly persuasive. I am more attracted to the “unwilling or unable” theory of the drone strikes, but I recognize it is far from flawless either.
Posner goes on to question whether international law can ever really regulate the U.S. government’s use of force, and suggests that Harold Koh may now realize it is a weak constraint at best.
But don’t blame government lawyers like Koh for devising this theory. International law lacks the resources for constraining the U.S. government. Koh knows this now if he did not before. Since he built his academic career on the claim that international law can and should be used to control nation-states and harshly criticized the Bush administration for violating international law, this must have been a bitter pill to swallow. (Though he has swallowed so many bitter pills that perhaps he has lost his sense of taste: The man who told the Senate at the end of the Bush administration that the United States must “unambiguously reassert our historic commitments to human rights and the rule of law as a major source of our moral authority” has backed away from his earlier opposition to expansive war powers, targeted killing, military commissions, and military detention.)
Posner’s general take on these questions can be found in his book, The Perils of Global Legalism. In it, he argues that most international law doesn’t affect state behavior very much (if at all) and actions by government officials based on the assumption that international law does restrain state behavior is both naive and dangerous.
I am not sure if I completely agree with Posner here, although I concede he can certainly marshal lots of evidence in the use-of-force area. But I think his focus on Koh’s “conversion” or “awakening” to the limits of international law is interesting. If we get a President Romney (which looks somewhat more likely than it did just a week ago), we can expect to hear his legal advisers citing Koh on a variety of legal questions (“Even the liberal transnationalist Harold Koh thinks a drone strike/cyberwarfare retaliation/Guantanamo is legal…”). The interesting question is whether Koh’s endorsement of the legality of such policies will serve as a shield from international law critics like NGOs, academics, etc. I doubt it, but it is always worth a try.