Harold Koh: Annual CCJHR Lecture 2014

This year’s Annual Distinguished Lecture at the CCJHR was delivered by Harold Koh, Stirling Professor of International Law at Yale Law School, and former Legal Adviser to the U.S. State Department. We had a great audience of legal practitioners, Govt officials, students and academics from a wide range of disciplines.

Below is a guest blog post from Seán Butler, IRC PhD candidate at the Centre for Criminal Justice and Human Rights, Faculty of Law, UCC, discussing the lecture and topics covered, including Koh’s ‘smart international law’ concept.

Harold Koh Lecture: 20th Century Law, 21st Century Problems

The subject of Professor Koh’s lecture was ‘20th Century Law, 21st Century Problems’ and contrasted the differing approaches of the Bush and Obama administrations towards tackling contemporary problems in international law and international politics, and the latter’s focus on the use of international law as a tool of smart power in the international system.

The approach of the Bush administration to new international challenges was to assume that where no law existed, there was no law to apply. This approach led to such legal ‘black holes’ as extraordinary rendition, Guantanamo Bay and the introduction of drone warfare. This necessitated an overreliance on hard power, such as in Iraq, and ultimately to what Professor Koh referred to as ‘imperial overreach’. Koh argued that the Obama administration sought instead to capture the spirit of the law and ‘translate’ pre-existing law into a workable structure for implementation in new and unique circumstances. This was characterised by a three-step process: ‘engagement’, ‘translation’ and ‘leverage’. The new approach sought to blend the law with other policy tools available as well as US values, in order to generate policy that was both effective and in compliance with the existing legal structure.

Professor Koh argued that the new approach made best use of the US’ true source of strength, namely soft power. The building of alliances and consensus among like-minded states generated legitimacy for US approaches, making policy easier to implement as well as supporting the growth of international law. This approach was exemplified by the new US strategies in Afghanistan and Iraq, in which the perpetual ‘War on Terror’, with its associated legal ambiguities, was replaced with a stricter definition of the enemy in these conflicts and a more transparent approach. Koh argued that this new rubric allows a stronger defence of the use of drones as a tool of war in compliance with the international humanitarian law principle of distinction. Koh further contended that drones were not a strategy in themselves, but rather tools to achieve certain goals.

Koh addressed a number of challenges facing actors in the international system for which the approach of engage-translate-leverage could be utilised. These included whether the smoking epidemic in the developing world could be addressed through a human rights approach, what rights clones were entitled to, especially in relation to their ‘original’ humans, and the impact of the ‘right to forget’ on the internet. Koh argued that a broader understanding of rights could be required to address these challenges.

Finally, Koh tackled the issue of humanitarian intervention. He firstly pointed to the NATO campaign in Libya and the Obama administration’s ‘Leading from Behind’ policy as an example of the new ‘smart power’ approach. As regards Syria, Koh argued that the US was doing what it could within the boundaries of international law, but the primary issue was that the tools available to the US and others were insufficient to solve the myriad problems stemming from that conflict. Without the consent of the Syrian authorities or a UN Security Council Resolution, there is little more that can be done. Koh additionally discussed issues regarding the UN providing humanitarian aid without the consent of the Syrian government and the possibility that arming the rebels could be considered to not violate international law if the weapons were used to prevent a greater crime, namely the commission of atrocities.

Professor Koh’s lecture was a robust, and at times passionate, defence of the pragmatic nature of US foreign policy under President Obama. It provided a reminder that the abstraction of academic discourse on the subject of international law is often poorly matched to the reality of implementing foreign policy, where politics, compromise and competing interests can preclude ‘clean’ implementation of the law. Koh was quick to acknowledge the failures of the Obama administration as much as champion its successes, but progress has undoubtedly occurred under this administration in comparison to the approach adopted by George W. Bush. Not every international problem can be solved, but an adherence to the spirit of the law and application of the engage-translate-leverage framework is a solid base from which to build. Moreover, it must be acknowledged that international law acts as a restraint upon unilateral action, with the Security Council and its veto system in particular designed to maintain international peace and security on a macro level, sometimes at the expense of the interests of individual powerful states. While it is tragic that over a hundred thousand people have died in Syria, the fault for the dearth of international action lies with the protection of the Assad regime by Russia and to a lesser extent China, rather that the blame laying on the shoulders of international law itself.

Indeed, the Obama administration’s embrace of international law, while constraining the US from involving itself in Iraq-like extra-legal actions, is a development that will ultimately strengthen not only the US’ international reputation, but will significantly improve the perceived legitimacy of the law. The efficacy of international law is hampered by the lack of a centralised enforcement mechanism, meaning that its power lies more in its persuasive abilities than straight coercion. As such, the voluntary compliance with and indeed promotion of international law by a state as powerful as the US is a crucial bulwark against states such as Russia who use international law as a weapon of convenience, championing sovereign inviolability in the Syria case but wilfully ignoring the sovereignty of Ukraine. A willingness to adapt policy towards the requirements of the law, rather than adapting the interpretation of the law towards the requirements of policy, is a signal that not only that the law is valid, but that it is possible to effectively protect state self-interest within its framework.