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Posted Feb. 12, 2010

Cleveland Outlines Obama’s Effect on International Law

Cleveland

The Obama administration has renewed the country’s commitment to international engagement and is articulating a new Obama-Clinton doctrine for foreign relations, one of the U.S. State Department’s top international law advisers said at the Law School on Friday.

Sarah Cleveland, a Columbia Law School professor who is currently serving as counselor on international law with the State Department’s Office of the Legal Adviser, delivered the keynote address in Caplin Pavilion for a J.B. Moore Society-sponsored symposium on President Barack Obama’s effect on international law.

“The administration is committed in word and deed to a new era of principled engagement with the world,” Cleveland said.

The administration still faces stiff challenges, and its full effort in this area began in earnest more recently than it would seem, as several key appointments took time to fill, she said.

“Despite the fact that the administration recently celebrated its first anniversary, the administration is still extremely young,” said Cleveland, who has been at her post for five months. “I’ve also now come to appreciate in a way that I could not have six months ago that it takes time to redirect the ship of state, and that it’s much more difficult to repair a system than it is to break it.”

Cleveland said the new administration’s efforts in international law are best reflected in four areas: the law of 9/11, international justice, the country’s approach to treaties and international agreements, and human rights.

“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.

One of the main challenges facing the administration is the reformation of practices that emerged after Sept. 11, 2001, she said, including the closure of the prison at Guantanamo Bay and other international humanitarian questions.

“As the president has observed himself, this area was just a mess, the product of a misguided experiment that set our principles aside as luxuries we could no longer afford,” she said. “If the last administration had responded to Sept. 11 consistently with international legal norms, the policies we are confronting would look different than they are.”

She said the administration has been tasked with unwinding or ending practices that it would not have originally authorized, and is facing the difficulties involved in imposing legal constraints after questionable actions and policies had already been implemented.

Elements of the president’s response have included ordering the prison at Guantanamo Bay closed, instructing the CIA to cease operation of any detention sites, and ordering that the International Committee of the Red Cross be given notice of and access to anyone detained in an armed conflict.

“There are those who would say the Obama administration has not done enough, and the work is unquestionably ongoing,” Cleveland said. “But the fact of the matter is that for a scant 12 months, these are not small achievements. What might be appropriate with regard to a situation we did not create might not be appropriate with regard to what would be our future policy.”

She also cited the administration’s efforts in the field of international justice, and said the country “has worked shoulder to shoulder with other countries to support accountability and end impunity for hauntingly brutal crimes in the former Yugoslavia, Sierra Leone, Lebanon and elsewhere.”

Cleveland said the Obama administration has also made progress on one of the most difficult challenges any administration faces with regard to international law: getting congressional approval for international agreements.

“We have in the United States an unusual constitutional arrangement that requires a supermajority of 67 senators in order to obtain the consent to ratification of a treaty,” she said. “Now the legal adviser, the dean of Yale Law School and a longstanding expert in international law, was confirmed with 62 votes in the Senate.”

The vote illustrates the inherent difficulty of getting any international agreement approved in the form of a treaty, she said.

“Now surprisingly, despite this, in the past year the U.S. exchanged and deposited instruments of ratification on more international instruments than in any other year of U.S. history,” Cleveland said. “This is not well known.”

Finally, the United States has made strides under the Obama administration in the realm of human rights, she said.

“Notably, our decision at the beginning of the administration to join the U.N. Human Rights Council is an important element of that engagement,” Cleveland said. “We are working for positive change there, not because we don’t see the council’s flaws, but because we recognize that multilateral institutions at their best leverage the efforts of many countries around a common purpose, and we believe that participating gives us the best chance to be a constructive influence.”

While these are still the early days of the administration, the emerging Obama-Clinton doctrine is helping the country’s foreign policy better reflect national values, she said. 

“This doctrine is based on the notion of international engagement, a commitment to multilateral diplomacy, a belief that smart power can achieve as much as hard power and most fundamentally, the view that global leadership flows to those who live their values, which make them stronger and safer.”