The Obama administration and international law.

Author:Koh, Harold Hongju
Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law
 
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This address was delivered by Harold Hongju Koh, Legal Adviser of the U.S. Department of State, at 5:00 p.m. on March 25, 2010.

It is such a pleasure to be back here at the ASIL. I am embarrassed to confess that I have been a member of ASIL for more than 30 years, since my first year of law school, and coming to the Annual Meeting has always been a highlight of my year. As a young lawyer just out of law school I would come to the American Society meeting and stand in the hotel lobby gaping at all the famous international lawyers walking by: for international lawyers, that is as close as we get to watching Hollywood stars stroll the red carpet at the Oscars! And last year at this time, when this meeting was held, I was still in the middle of my confirmation process. So under the arcane rules of that process, I was allowed to come here to be seen, but not heard. So it is a pleasure finally to be able to address all of you and to give you my perspective on the Obama Administration's approach to international law. Let me start by bringing you special greetings from someone you already know.

As you saw, my client, Secretary Clinton, very much wanted to be here in person, but as you see in the headlines, this week she has been called away to Mexico, to meeting visiting Pakistani dignitaries, to testify on Capitol Hill, and many other duties. As you can tell, she is very proud of the strong historical relationship between the American Society and the State Department, and she is determined to keep it strong. As the Secretary mentioned, I and another long-time member of the Society, your former President Anne-Marie Slaughter of the Policy Planning Staff join her every morning at her 8:45 am senior staff meeting, so the spirit of the American Society is very much in the room (and the smell of the Society as well, as I am usually there at that hour clutching my ASIL coffee mug!).

Since this is my first chance to address you as Legal Adviser, I thought I would speak to three issues. First, the nature of my job as Legal Adviser. Second, the strategic vision of international law that we in the Obama administration are attempting to implement. Third and finally, the particular issues that we have grappled with in our first year in a number of high-profile areas: the International Criminal Court, the Human Rights Council, and what I call the Law of 9/11--detentions, use of force, and prosecutions.

THE ROLE OF THE LEGAL ADVISER

First, my job. I have now been the Legal Adviser of the State Department for about nine months. This is a position I first heard of about 40 years ago, and it has struck me throughout my career as the most fascinating legal job in the U.S. government. Now that I've actually been in the job for a while, I have become even more convinced that that is true, for four reasons.

First, I have absolutely extraordinary colleagues at the Legal Adviser's Office, which we call "L," which is surely the greatest international law firm in the world. Its numbers include many current lawyers and alumni who are sitting here in the audience, and it is a training ground for America's international lawyers. (To prove that point, could I have a show of hands of how many of you in the audience have worked in L sometime during your careers?) Our 175 lawyers are spread over 24 offices, including four extraordinary career deputies and a Counselor of International Law, nearly all of whom are members of this Society and many of whom you will find speaking on the various panels throughout this Annual Meeting program.

Second, I have extraordinary clients and you just saw one, Secretary Hillary Clinton, who is a remarkably able lawyer. Of course, another client of mine, the President, is also an outstanding lawyer, as are both Deputy Secretaries, the Department's Counselor, the Deputy Chief of Staff, and a host of Under Secretaries and Assistant Secretaries.

Third, each day we tackle extraordinarily fascinating legal questions. When I was a professor, I would spend a lot of time trying to think up exam questions. For those of you who are professors, this job literally presents you with a new exam question every single day. For example, I had never really thought about the question: "Can you attach a panda?" Or the question, can Mu'ammar al-Qadhafi erect a tent in Englewood, New Jersey, notwithstanding a contrary local ordinance? To be honest, I had never really thought about those questions. But rest assured, in the future, many Yale law students will.

Fourth and finally, my position allows me to play extraordinary and varied roles. Some government lawyers have the privilege for example, of giving regular advice to a particularly prominent client or pleading particular cases before a particular court. But the Legal Adviser must shift back and forth constantly between four rich and varied roles: which I call counselor, conscience, defender of U.S. interests, and spokesperson for international law.

As counselor, I mean obviously, that the Legal Adviser must play all the traditional functions of an agency general counsel, but with a twist. Like every in-house counsel's office, we do buildings and acquisitions, but those buildings may well be in Afghanistan or Beijing. We review government contracts, but they may require contracting activities in Iraq or Pakistan. We review employment decisions, but with respect to employees with diplomatic and consular immunities or special visa problems.

But in addition to being counselors, we also serve as a conscience for the U.S. government with regard to international law. The Legal Adviser, along with many others in policy as well as legal positions, offers opinions on both the wisdom and morality of proposed international actions. For it is the unique role of the Legal Adviser's Office to coordinate and render authoritative legal advice for the State Department on international legal issues, or as Dick Bilder once put it, to "speak law to power." In this role, the Legal Adviser must serve not only as a source of black-letter advice to his clients, but more fundamentally, as a source of good judgment. That means that one of the most important roles of the Legal Adviser is to advise the Secretary when a policy option being proposed is "lawful but awful." As Herman Pfleger, one former Legal Adviser, put it: "You should never say no to your client when the law and your conscience say yes; but you should never, ever say yes when your law and conscience say no." And because my job is simply to provide the President and the Secretary of State with the very best legal advice that I can give them, I have felt little conflict with my past roles as a law professor, dean, and human rights lawyer, because as my old professor, former legal adviser Abram Chayes, once put it: "There's nothing wrong with a lawyer holding the United States to its own best standards and principles."

A third role the Legal Adviser plays is defender of the United States interests in the many international fora in which the United States appears--the International Court of Justice, where I had the honor recently of appearing for the United States in the Kosovo case; the UN Compensation Commission; the Iran-U.S. Claims Tribunal; NAFTA tribunals (where I was privileged to argue recently before a Chapter XI tribunal in the Grand River case)--and we also appear regularly in U.S. domestic litigation, usually as of counsel to the Department of Justice in a case such as the Supreme Court's current case of Samantar v. Yousuf, on which this Society held a panel this morning.

A fourth and final role for the Legal Adviser, and the reason I'm here tonight, is to act as a spokesperson for the U.S. government about why international law matters. Many people don't understand why obeying our international commitments is both fight and smart, and that is a message that this administration, and I as Legal Adviser, are committed to spreading.

THE STRATEGIC VISION

That brings me to my second topic: what strategic vision of international law are we trying to implement? How does obeying international law advance U.S. foreign policy interests and strengthen America's position of global leadership? Or, to put it another way, with respect to international law, is this administration really committed to what our President has famously called "change we can believe in" ? Some, including a number of the panelists who have addressed this conference, have argued that there is really more continuity than change from the last administration to this one.

To them I would answer that, of course, in foreign policy, from administration to administration, there will always be more continuity than change; you simply cannot turn the ship of state 360 degrees from administration to administration every four to eight years, nor should you. But, I would argue, and these are the core of my remarks today, to say that is to understate the most important difference between this administration and the last--and that is with respect to its approach and attitude toward international law. The difference in that approach to international law I would argue is captured in an emerging "Obama-Clinton doctrine," which is based on four commitments: to (1) principled engagement; (2) diplomacy as a critical element of smart power; (3) strategic multilateralism; and (4) the notion that living our values makes us stronger and safer because we follow the rules of domestic and international law: we follow universal standards, not double standards.

As articulated by the President and Secretary Clinton, I believe the Obama/Clinton doctrine reflects these four core commitments. First, a commitment to principled engagement: A powerful belief in the interdependence of the global community is a major theme for our President, whose father came from a Kenyan family, and who spent part of his childhood in Indonesia.

Second, a commitment to what Secretary Clinton calls "smart power"--a...

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