Published by The Lawfare Institute
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In April I was honored to give the Sherrill lecture at Yale Law School. My lecture was entitled, The Contributions of the Obama Administration to the Practice and Theory of International Law. The Harvard International Law Journal has now kindly published a slightly edited and lightly footnoted version of the lecture.
The lecture seeks to assess the Obama administration’s approach to international law “through the lens of the two mechanisms through which a president and his team can influence international law.”
The first mechanism is the president’s “enormous unilateral authority to alter how the United States sees its international law commitments by merely interpreting those commitments.” The Obama administration, I argue, practiced “normal science” in “exercising its interpretive powers to reshape the U.S. view of its international law commitments in light of its view of U.S. interests.” The most noteworthy issues are the perhaps-surprising degree to which the administration has not reshaped U.S. international human rights law commitments, and the perhaps-surprising degree to which is has reshaped U.S. international law commitments related to jus ad bellum.
The second mechanism through which the President can influence international law “is by using the tools of diplomacy to contribute to the making of new international agreements—often, but not always, with some participation by the legislature.” The Obama administration made a lasting mark with its innovative use of political commitments, especially in the Iran Deal (JCPOA) and the Paris Agreement. Normally one might have assumed that agreements of such significance would require approval by the Senate or Congress, but it seemed pretty clear that neither body would approve either agreement. As I explain:
We can now understand the challenges President Obama faced in trying to conclude both the Iran Deal and the Paris Agreement. He lacked the authority under the Constitution to make the core pledges in these agreements legally binding under international law without securing the consent of the legislature that he knew was impossible. He could agree to the pledges in the nonbinding political commitments without going to Congress, but then he faced the problem of following through on those pledges, and making them credible, without the cooperation of the legislature.
The Obama team’s imaginative answer to this conundrum was to locate the authority to fulfill the political commitments in independent domestic law authorities that were not designed to effectuate or approve international agreements. With the Iran Deal, Obama pledged in a political commitment to lift U.S. sanctions, and then followed through on that pledge by exercising an independent, pre-existing congressionally conferred authority to waive the sanctions in the national interest. The Paris Agreement was more complicated. It was a binding international obligation elements of which the President could probably commit the nation to pursuant to a 1992 framework treaty consented to by the Senate. But the President probably could not commit the United States under international law to the agreement’s core imperative to lower greenhouse gas emissions. So instead the Obama team insisted that the greenhouse-gas-reduction provision be a political commitment, and then the President exercised an independent, pre-existing domestic authority under the Clean Air Act to make a regulation that required emission reduction consonant with the political commitment.
To summarize and simplify, the President in both examples made political commitments that did not require legislative approval and then exercised independent domestic authorities to effectuate the changes in domestic law that were needed to make the pledges in the two commitments credible and efficacious. There is nothing innovative about either prong of this approach. Presidents make political commitments all the time, and they exercise delegated authority from Congress all the time. What was innovative was bringing the two prongs together in one initiative to forge deep international cooperation supported by significant changes in U.S. domestic law without recourse to a congressional vote. In both cases the administration secured pledges of coordinated change from foreign countries through a political commitment and then delivered the U.S. side of the bargain by exercising extant delegated authority from Congress that Congress had no idea would lead to such international cooperation.
As I note—Senate, Congress, wake up and pay attention!—the innovations here “have enormous generative possibilities,” since under the administration's approach, “the President is empowered to make and deliver upon international agreements that are consonant with whatever he can accomplish via the scope of his super-broad delegated powers from Congress.” I offer a brief normative assessment of the President’s innovations in the Iran Deal and Paris Agreement—not on the agreements’ merits, but from the perspective of presidential power.
I conclude the essay as follows:
I began this essay with excerpts from The Audacity of Hope that suggested that Barack Obama came to the Presidency with an optimistic view of international law. I want to close with a different passage that captures well his actions as president. In examining the history of U.S. foreign relations, Obama expressed his greatest admiration for “the postwar leadership of President Truman, Dean Acheson, George Marshall, and George Kennan” who “crafted the architecture of a new, postwar order that married Wilson’s idealism to hardheaded realism . . . .”
Idealism married to hardheaded realism is a pretty good description of the international law innovations I have described in this essay. The greatest tension between Obama’s ideals and the demands of the Presidency has no doubt come in the war powers context. He has been a surprising warrior president even as he has proclaimed a desire to retrench, and he has helped narrow the very constraints of international law that he once proclaimed were so important. One can be cynical about this development. But one can also see Obama as trying to adjust the international law framework he admires, and still believes constrains and legitimates, to a significantly changed threat environment. And in this light, one might admire his moderately successful efforts to get more countries than before to accept the U.S. view on Unwilling/Unable and on a more flexible conception of imminence. As for the Iran and Paris deals, both were hugely consequential international achievements that Obama deems vital for the future of the planet. The realism there came in means, not ends, in securing these agreements while avoiding what would have been a certain rejection in Congress.
It is easy to question the substance of these endeavors, many of which are controversial. But whatever one’s view of the substance, the administration and its creative lawyers deserve credit for persistence, innovation, and leadership. Whether they left the world a better place as a result, only time and counterfactual speculation will tell.