There have been many signs of greater US commitment to international law during the Obama administration, which has been much more wiling to comply with international norms. Early into his presidency Obama ordered the closure of the prison in Guantanamo bay, a review of detention and interrogation policy and the prohibition of torture, demonstrating a willingness to respect international law in regards to human rights and the treatment of prisoners. There too has been great initiative on behalf of the Obama administration in dealing with the issue of nuclear non-proliferation, which includes the recommencement of strategic arms reduction negotiations with Russia and a commitment to the ratification of the Comprehensive Test Ban Treaty. Moreover, under the Obama administration, US attitudes towards international courts have taken a softer, less ambivalent tone. With these many positive actions, the Obama administration seems to mark a turning point in the way America engages with international law and its various legal instruments. Notwithstanding a refreshingly different outlook to that of the previous administration, and a seemingly more cooperative stance with respect to international law, I would still argue that meaningful engagement would not be as forthcoming as first appears, owing to the various structural political constraints inherent in the American political system, ingrained ideas of exceptionalism and anxiety towards international law and various practical and logistical constraints on compliance and implementation of international law in a domestic setting. This essay will discuss how these three continuing themes will continue to affect the US's engagement with international law and the way in which it may affect the Obama administration's approach towards the issues of climate change, human rights, nuclear non-proliferation and international courts.
The area of climate change is perhaps one of the most topical and contentious issues in the context of international law, with a constant feature being the United States refusal to ratify the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) (Murphy 2004). The Protocol, which seeks to achieve a 15 percent reduction of the three major greenhouse gases (carbon dioxide, methane, nitrous oxide) from 1990 levels by 2010, was categorically rejected by the US on grounds that it did not impose legally binding mechanisms for developing countries to curb emissions and that as a result would result in serious harm to the US economy (Murphy 2004). The issue of climate change perhaps best demonstrates the way in which domestic political constraints hamper US commitment to international law.
Firstly, the constitutional separation of powers, which give Congress joint decision making powers on foreign policy matters complicates the ratification process (Patrick 2002). The Clinton administration's failed attempt to become party to Kyoto is a case in point; while Clinton as president had the constitutional powers to negotiate and sign treaties, the passing of the Byrd-Hagel resolution, which stipulated that any climate agreement which would "result in serious harm to the economy of the United States" (Senate Resolution 98, 1997) would not acquire Senate ratification, ultimately rejected the validity of Kyoto as domestic law. Any subsequent attempt to ratify the Kyoto Protocol would require a two thirds majority vote in the Senate, which given the contentiousness and partisanship on the issue would be exceedingly difficult (Patrick 2002).
Further obstacles to any US engagement with international law on the climate front are also found in the legislative system, namely the supermajoritarian procedure of the House of Representatives and the Senatorial filibuster procedure (Andersen and Skodvin 2009). Supermajoritarian procedures require a two thirds majority in the House of Representatives in order for a resolution to be made into a law (Lowi & Ginsberg 1998, Fiorina et al. 2004). The complicating factor of the supermajoritarian procedure is that even if an international treaty is ratified by the Senate, motions to enact federal legislation bringing the United States in line with international obligations will once again have to go through Congress. The implication is that genuine commitment and compliance to international environmental law is inextricably difficult, despite strong support from the executive (Andersen & Skodvin 2009). Adding yet another layer of complication to the legislative process is the Senate filibuster procedures which grant individual Senator's the right to address the Senate indefinitely, which can only be terminated if the Senate adopts a cloture motion which requires a three fifths majority (60 of 100 senators) (Fiorina et al 2004). This has been a much used technique for the minority, who do not have the simple majority of 51 of 100 votes, to block motions and halt the legislative process, as a minority of 41 senators can block a cloture motion (Andersen & Skodvin 2009). The major challenge thus for any president that seeks to make significant change in US policy towards climate change is in overcoming a US legislative system which is "designed to favour the status quo" (Andersen & Skodvin 2009, p. 272).
Andersen & Skodvin (2009) and Fisher (2004) also point to the natural resource base of the US economy as a historical practical constraint on policy change when it comes to addressing climate change issues as it forms the basis for congressional dialogue. The United States economy is run primarily on fossil fuels; it is the third largest oil exporter in the world, controls an estimated 29% of the world's fossil fuels and approximately half of all electricity generated in the US is coal based (Energy site), which implies that many voting constituencies in the US whose economic welfare rely on fossil fuel related industries. According to Fisher (2004), US coal and oil reserves are spread across 26 states, meaning that at least 52 senators would represent interests antagonistic to climate policies which call for reduction in fossil fuels. In fact, studies carried out by Fisher (2006) had found that senators representing such constituencies were significantly more likely to vote against bills related to changing US climate policies. With over half the states in America affected by policies relating to reducing carbon emissions, conflict is not only defined along ideological but also geographical lines, providing little prospect for bipartisanship on climate issues.
The overall implications for the Obama administration when it comes to addressing climate change is that while some policy changes can be implemented at a domestic level, US compliance with an international legal regime regarding climate change is still a long way off. While Obama has been proactive in dealing with this problem, such as by issuing orders to increase the fuel efficiency of cars (Mufsen & Eilperin 2009) and reviewing California's request to adopt its own limits on carbon emissions (Lewis, 2009), US ratification of international treaties such as Kyoto would still be highly constrained by the domestic legislative process.
As well as the issue of climate change, there are significant constraints on the capacity of the Obama administration to deal with nuclear proliferation, with domestic legislative obstacles once again a key consideration. Most notably, in a speech in the Czech Republic earlier this year, Obama outlined three initiatives that signalled a greater US commitment to international law on this issue. In a dramatic shift of policy, Obama promised an array of measures on the issue of non-proliferation, most significant of which was seeking US ratification of the Comprehensive Test Ban Treaty (CTBT) which bans all explosions of nuclear devices and aims to achieve a new US-Russia strategic arms reduction treaty to replace the current START agreement (Obama, 2009). While, these actions are welcomed changes, there are significant challenges to be faced in order for these promises to be transformed into meaningful commitments to international law.
The ratification CTBT has been a difficult and much debated issue in US domestic politics. Whilst a signatory, the United States have yet to ratify the CTBT, after it was rejected by the Senate in 1999 (Murphy 2004). Persistent opposition to the ratification of CTBT has been largely informed by the belief that continual testing is necessary in order to maintain the operational reliability of a US deterrent force and the lack of satisfactory verification procedures that could aid in enforcing such a treaty (Murphy 2004). Consequently the United States failure to ratify the CTBT has played a major role in undermining the effectiveness of an international legal regime regarding the issue of non-proliferation. Not only does this reflect a lack of commitment to meet the Non-Proliferation Treaty's (NPT) Article VI obligation of nuclear weapons states to disarm, it also serves to provide a "convenient rationale for states to avoid adhering to non-proliferation measures" (Laird 2009). In this context, Obama's pursuit of ratification is a commendable endeavour and signals a greater commitment to international law, helping both set an example for other states, as well as revitalising the current non-proliferation regime (Joseph 2009; Laird 2009 and Larsen 2009). However once again, Senate approval is crucial and ratification would depend on a supermajority of 67 votes in the Senate. On this issue, Laird (2009) is sceptical as to whether successful ratification is achievable arguing that despite a Democrat 60 seat Senate majority, securing the extra 7 votes needed would present a major political challenge. This argument does have historical basis, particularly since the first attempted passage was voted down in the Senate in 1999 by a margin of 51 - 48 (Murphy 2004). Given that the Republican majority caucus was 54 - 45, it seems that the issue was divided on highly partisan lines and is likely to be the case should ratification be attempted again (Larsen 2009).
Obama's endeavour to negotiate a new START agreement, which will aim to reduce the US and Russia nuclear strategic forces, will also face significant challenges and is likely to incur the same problems which have stalled previous negotiations. While it is expected that there will be some progress such as the reduction to 1500 and 1000 warheads and delivery systems for Russia and the US respectively, the issue of reducing missile defences would be a controversial issue (Kimball 2008). While reducing missile defences would lower US first strike capabilities and go to demonstrate greater US commitment to nuclear disarmament, moves to do so would raise objections from European and East Asian allies who rely on the US nuclear shields for protection (Laird 2009). Additionally, should a new START agreement be successful, it would not preclude the usage of tactical nuclear weapons, nor would the agreement involve other smaller but significant nuclear powers (Larsen 2009). While Obama's readiness to negotiate and compromise on the issue of arms reduction sounds like it may achieve significant results, an array of foreign policy constraints owing to the US strategic alliances can still play a role in undermining the fruitfulness of such negotiations. Moreover, the success of a START would not necessarily guarantee the success of global non-proliferation.
On the human rights front, there also remains a distinct possibility that Obama's plans to adhere to international law may be more problematic than at first thought. The most significant action Obama has taken to date has been to order the closure of Guantanamo Bay, a review of US detention and interrogation policies and the prohibition of the use of torture (White House, 2009). Although these gestures maybe grand, there remain enormous challenges in order to successfully implement these plans. With respect to the closure of Guantanamo Bay, Obama was commended by human and civil rights groups for issuing an executive order promising for the facilities to be closed "as soon as practicable and no later than a year from the date of this order" (Whitehouse 2009). However, despite the initial jubilation, it has recently been revealed that the successful closure of Guatanamo Bay is in danger missing the deadline as first promised (Gienger 2009; Perez 2009). The difficulties relating to the closure of Guantanamo are primarily legal and practical, owing to the legal status of detainees and the practical aspect of relocating them after the closure of the detention facility (Bellinger 2009a; Kukis 2008).
In terms of the legal aspects of the greatest challenge for international law and the Obama administration is in determining the legal status of detainees. The Geneva Convention relative to the Treatment of Prisoners of War which applies only to "High Contracting Parties" or warring states (Geneva Convention relative to the Treatment of Prisoners of War, 1950) does not afford Guantanamo detainees any protection, as they are not representative of any one state (Bellinger 2009a). Nor do the detainees have any defined legal rights, particularly habeas corpus provisions, under US law as the detainees were detained for purposes of extracting intelligence through interrogations, rather than for prosecutions of crimes (Kukis 2008). Any attempt to address the "legal limbo" of the current detainees, and prospective future detainees, would require the monumental task of drafting federal legislation to be approved by the Senate (Pearl 2009).
Secondly, practical aspects of the closure of Guantanamo will also provide significant challenges in terms of prisoner repatriation, relocation and the risk of detainee recidivism (Bellinger 2009a). As far as repatriation is concerned, a major issue is whether the home countries in fact have the capacity to deal with these extra prisoners. Particularly applicable to the Guantanamo case is the high number of detainees from Yemen, a country with ailing judicial and correctional institutions, compounded by the underlying high levels of political instability (Bellinger 2009a). In these instances, there are no assurances of adequate measures to prevent the involvement of detainees in terrorist organisations upon release, nor are there guarantees that there won't be a greater resurgence of al Qaeda as a direct result of their release (Kukis 2008). Additionally, many of the detainees come from countries with questionable human rights records, a case in point being the Uighur detainees from the People's Republic of China, and no doubt pressure would be brought to bear upon any president to not send these prisoners back to countries with poor human rights records (Bellinger 2009a).
In addition to the difficulties in living up to the promises of closing Guantanamo Bay, there are still issues pertaining to torture and US detention policies that are yet to be addressed. While Obama has announced a investigation into those who have drafted the 'torture memos' in authorising the use of torture for the purposes of interrogation, his decision to not prosecute those who actually carried out acts of torture is contrary to the United Nations Convention Against Torture, which obligates nations to investigate allegations of torture (Mendelson 2009). Furthermore, as Bellinger (2009a) points out, the Obama administration detention policies still retain a broad definition as to who can be detained, including those who are apart of al Qaeda or Taliban and those offering any concrete form of support be it financial or otherwise. Additionally, there is yet to be any pronouncements on the future of other detention centres such as Baghram (Mendelson 2009), nor are there policy reversals on the topic of extraordinary rendition (Eviatar 2009).
Thus once again, the promise of significant change in the area of human rights, and particularly the issue of detention of enemy combatants, is not as forthcoming as first appears. While, the announcement of the closure of Guantanamo bodes well for an increased US commitment to international law in the area of human rights, there remain some aspects that are difficult to achieve and some aspects still remain directly contrary to the practice of international law (Bellinger 2009a).
Finally, in terms of engagement with international justice, the Obama administration has taken a significantly more conciliatory approach, particularly with the International Criminal Court (ICC) and International Court of Justice (ICJ).
Historically, the United States have been ambivalent towards international bodies, despite the major role it has played in negotiating and establishing the ICJ and ICC. The reasons for such ambivalence are many, but are primarily due to the dominance of realism in the US approach to international law, emphasising a state centric approach to international justice rather than relying upon institutions; the historical and cultural beliefs of exceptionalism, have made it difficult for the United States to accept the institutionalist idea of sovereign equality; as has the belief in the power of international judges and juries to dictate domestic law is undemocractic and unaccountable (Murphy 2007; Patrick 2002).
In part, these three reasons relate to almost all aspects of United States approach to foreign policy, but it is most pertinent on the issue of international rulings and the US's perennial failure to comply with the decisions of ICJ. Although an active participant in the ICJ, the United States have tended to reacted negatively to decisions by the court which have been unfavourable to the US's position, regularly failing to comply with the courts rulings (Murphy 2004). In part, this has been due to an exceptionalist approach towards the ICJ (for example, Reagan's rejection of the ICJ's authority to rule on the Contras affair in 1986), but in recent history, the Avena Case of 2004 also demonstrated a string of constitutional constraints limiting compliance.
In 2003, Mexico took the United States to court over claims that had violated the Vienna Convention on Consular relations in order to have the death row sentences of 51 Mexican nationals reviewed (Charnovitz 2008). On this case, the ICJ ruled that the United States had in fact violated the Vienna Convention, for failing to provide consular notice for those nationals arrested, and it was incumbent upon the United States review the death sentences of these nationals (Charnovitz 2008). Despite the best efforts of President George W Bush to comply, ordering the states in question to review the individual cases, his authority was overruled by the judicial process, with the US Supreme Court ruling that it was unconstitutional for the president to order states to comply with international rulings (Bellinger 2009b). What Avena goes to demonstrate is the constitutional constraints on the executive's power in complying with the decisions of international courts and an "enduring schizophrenia in the US constitutional and democratic tradition regarding the manner in which it incorporates international law" (Murphy 2007). Additionally, if Obama seeks to strengthen US commitment, he would have to overcome legal traditions which have placed domestic law in a higher standing (Bellinger 2009b).
In terms of the ICC, there have been signs of perhaps a stronger US engagement with the court, given that Secretary of State Hillary Clinton stated that it was a "great regret" that the United States is not a member (Reuters 2009), which is in contrast to the Bush administration's hostility. Yet, it is prudent to consider that the ongoing US reservations towards the ICC are related to structural issues, namely the fear that ICC rulings may violate US sovereignty with respect to the way its own citizens are treated; fear of exposure to politicised prosecutions due the US's prominent role in international security; the view that proceedings of the ICC is antagonistic to the US constitution with regards to trial of US citizens by foreign courts; and also the belief that it would undermine US veto power in the UN Security Council when it comes to determining and punishing "crimes against peace" (Risch 2004), issues that would not necessarily change with a change of president. To date, the administration has done little of substance towards joining the ICC, and has not moved to reverse the "unsigning" of the Rome Statute (Bellinger 2009b).Moreover, should Obama aspire to join the ICC, he would face the difficult task of convincing the US military of the merits of joining the ICC as well as ensuring the successful passage of the Rome Statute in the Senate (Bellinger 2009b). Moreover, Obama would need to effectively negotiate certain amendments and exemptions for American troops with other countries party to the ICC, which would most likely be unacceptable for most nations based on the exceptionalist contours of such a request (Bellinger 2009b). Given the substantial hurdles, both domestic and international, that the US faces, it appears that a stronger US commitment which the ICC desperately needs will not be forthcoming. Again, as with previously discussed issues, US commitment to international law in terms of international justice would be significantly undermined by domestic and international constraints, despite a more accommodating and less reproachful administration.
The historic inauguration of President Barack Obama in early 2009 brought a new found sense of hope and optimism, promising to deliver real change to Washington and to remedy the many foreign policy blunders implemented by the Bush administration. Yet, despite a dramatically different outlook, and some changes in policy regarding issues of environment, nuclear proliferation, human rights and international courts, significant change may not be as forthcoming as first appears. While the recent activism with which the US has pursued policy change on climate issues reflects a more ambitious and proactive administration, ratification of the Kyoto Protocol, which has been a standout glitch in the US commitment to international law, will still be subject to congressional approval. Due to the highly partisan nature of this debate, ratification and commitment to Kyoto is highly unlikely. With reference to the issue of non-proliferation, constitutional constraints will also feature heavily in Obama's aim to ratify the Comprehensive Test Ban Treaty, and the success of new negotiations on nuclear arms reduction with Russia would hinge on the administration's management of strategic alliances. On the human rights front, particularly on the issues of Guantanamo Bay, torture and detention, there are also many obstacles that must be overcome before a meaningful commitment to international law can be made. The closure of Guantanamo will not be as easy as first appears, as it presents an array of practical and legal challenges relating to the relocation of detainees, which would require be detainees relocated to countries where they will be treated in accordance to human rights as well as ensuring recidivism does not occur. Moreover, on the issue of torture and detention, there have been little done by the Obama administration to fulfil its obligations to the UN Convention on Torture to prosecute those responsible for conducting torture at Guantanamo and to date, the United States policy on detention still remains largely the same. Finally, a more meaningful commitment to international justice also appears unlikely in this administration owing to the deeply ingrained US ambivalence to international institutions and the traditional practices of diminishing the importance of international law in comparison with domestic laws. Regardless of the significant change in tone from the Obama administration, a meaningful strengthening of commitment to international law from the US in key areas of international affairs would arguably fall short of expectations.