Thursday, March 31, 2011

The Muted Role of International Law in the Obama Doctrine

By Mike Dorf

For better or worse, President Obama's articulation of his reasons for committing U.S. air power to the civilian protection mission in Libya is already coming to be known as the "Obama Doctrine."  Rather than try to sum it up myself, I'll quote the key passage from Monday night's speech, in which the President explained the factors that led him to the decision he took, which tacitly includes reasons for why he has not authorized similar action in other countries where civilians are under threat:
In this particular country – Libya; at this particular moment, we were faced with the prospect of violence on a horrific scale. We had a unique ability to stop that violence: an international mandate for action, a broad coalition prepared to join us, the support of Arab countries, and a plea for help from the Libyan people themselves. We also had the ability to stop Gaddafi's forces in their tracks without putting American troops on the ground.
Let's put aside the question of whether the speech states persuasive grounds for intervening in Libya but not elsewhere and to the extent of protecting civilians but not aiming for regime change.  Here I want to note what I consider a serious understatement: the existence of what the President calls "an international mandate for action" is listed as only one, not necessarily decisive, factor.  Yet absent such an international mandate--indeed, absent a particular kind of international mandate, namely a UN Security Council Resolution authorizing force--the use of armed force other than in national or collective self-defense violates international law.  Lacking anything resembling a mutual defense treaty with the People of Libya, American airstrikes in Libya are legal only because the Security Council authorized them.

To be sure, President Obama's speech repeatedly invokes the virtues of multilateralism, but these are portrayed as pragmatic or tactical virtues: The U.S., he tells us, will act more effectively in pursuit of our interests and values if we act with the blessing of and in cooperation with the rest of the world, rather than in the teeth of concerted opposition.  That may well be, but one might think that such pragmatic and tactical considerations only figure into the decision whether to intervene if and only if intervention would be lawful.

Was the failure to place much weight on the international law status of humanitarian intervention accidental?  That seems unlikely.  The President himself is a very well-trained lawyer.  Samantha Power, who reportedly played an important internal role in urging intervention, is a well-regarded international lawyer.  Secretary of State Clinton is a highly skilled lawyer.  And her chief legal advisor, Harold Koh, is a renowned international law scholar.

So why didn't the speech place more--indeed, any--emphasis on international legality as a pre-condition for humanitarian intervention?  I'll float four hypotheses.

1) This was a speech for the general public.  Explaining what makes an intervention legal under the U.N. Charter would have been a bit too technical.  Obama's reference to the Security Council's "writ" was as close as he could come without losing his audience.

2) The Obama crowd actually think that the use of armed force to avert genocide or on other humanitarian grounds is legal, even absent Security Council authorization, as a matter of customary international law.  I find this plausible as an account of what Obama's advisers were thinking but that I find the underlying view implausible.  International practice is not sufficiently uniform in support of such a norm for it to count as customary international law, at least not yet.

3) The Obama crowd recognize that there really isn't (yet) a customary international law norm authorizing armed intervention to avert humanitarian disasters absent Security Council authorization, but they would very much like for there to be one, and in the end, they think that the moral case for such interventions is strong enough to overcome whatever normative force international law has.  In other words, they think that going to war in violation of international law is sometimes the right thing to do.  I have considerable sympathy for this view, but I think that the threshold needs to be very high, as with civil disobedience in other contexts.  The fact that some act violates the law--whether domestic or international--counts as a strong reason not to engage in that act, but even that strong reason can be outweighed by even stronger reasons in extreme cases.

4) The Obama crowd think that legality under international law is crucial but here, as in so many other contexts, liberals accept conservatives' framing of the issue.  And for the conservatives, international law either doesn't exist or is a tool of some combination of our effete (read "French") allies and our enemies.  Thus, they regard international law as so sullied that it cannot even be invoked directly.

These hypotheses are not mutually exclusive, of course.  I hope that some combination of explanations 1 through 3 are at work, but I fear there is a good deal of 4.


Paul Scott said...

"The fact that some act violates the law--whether domestic or international--counts as a strong reason not to engage in that act..."

Interesting. I am curious if you meant this broadly, as the context of the post suggests, or do you mean this only as to governments and their agents?

I am curious if most people agree that, in their day-to-day lives, the application of the law to a situation or act is something they actually consider.

To me this assumption is very much a kin to the "rational maximizer" of economic theory. I think this is true of individuals and governments, with the exception most of the time being those individuals in government directly dealing with the application of law.

I make those assertions both from a realist position and from a normative one. That is to say, I don;t think most people consider the application of the law to an act as a matter of course and I also don't think the application of the law to an act, of itself, has any normative value in determining the correctness of the act.

Paul Scott said...

Let me start with an example, to clarify.

Let's say that I am 16 and my girlfriend is 14 and we are engaging is intercourse on a regular basis. this relationship is still going after 2 years and I turn 18. It turns out that in my state it is illegal (and carries a very harsh penalty) for someone over the age of 18 to have sex with someone under the age of 18.

I just turned 18. Is the fact the having sex with my long-term girlfriend is an act that violates the law a strong reason to not engage in the act? I think clearly the answer to that is no. It has no bearing whatever. I might stop having sex with my girlfriend for two years out of fear of the penalty the law imposes, but not because I "respect the law" or any such concept that being unlawful makes an act "wrong."

Paul Scott said...

I think the same thing is true of what Obama is saying. He asserts that:

1. There is an ongoing atrocity.

2. The US is capable of stopping it.

3. The practicalities of both foreign and domestic relations do not interfere with stopping it.

The law, international or otherwise, is a side issue. the act is right, whether the law says it is or not. Since there are very limited consequences for the US ignoring international law in these circumstances, fear of consequence of the law is nil.

As it will turn out, when 1-3 above are true, it is very likely that something will happen to make the act lawful (i.e. a UN resolution). When some part of 1-3 are not true, then something will also happen to make the act unlawful.

For example when the country committing the atrocity is North Korea or Iran, etc. then it will be both politically and practically impossible for the US to act as it has in Lybia and the will be no UN resolution condemning the atrocity or authorizing use of force as in Lybia.

The lawfulness or unlawfulness of the proposed acts of the US will have no bearing whatever on the correctness of the act and will not serve (and should not serve) as an independent reason to act or not act.

Michael C. Dorf said...

Paul raises an old question: Is there a duty to obey the law? First, I should be clear that I was deliberately unclear whether I was saying that there is a moral duty to obey the law or simply that the existence of a law provides pragmatic grounds to obey the law (e.g., avoiding sanctions). In fact, I do think there is a prima facie moral duty to obey the law, so long as the legal system as a whole is not irredeemably corrupt (e.g., Nazi law). There are several sorts of reasons for thinking one owes a prima facie duty to the law: E.g., 1) Law serves a coordination function, so that even if the law isn't morally ideal, when everyone treats it as binding, conflicts are avoided; 2) Obeying even somewhat stupid laws increases overall respect for law; 3) One might treat the lawmaker as an epistemic authority, so that even if your own judgment is that some act (such as smoking marijuana or paying a prosititute) is morally blameless, you might think that the community as a whole knows better--or you might think that society as a whole will be better off if other people treat the lawmaker as an epistemic authority. I don't think any of these reasons is sufficient to create an absolute duty to obey the law, even when the law as a whole is just. But to my mind, they do create a prima facie duty.

Show you said...

One may deal with the lawmaker as an epistemic authority subing, to make certain that even if your personal judgment is the reality that some work is morally blameless