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Prof. William Burke-White on International Law and American Diplomacy

March 01, 2011

Penn Law and Public Service

William W. Burke-White
Penn Law’s William Burke-White, currently on public service leave at the U.S. Department of State serving on Secretary Clinton’s Policy Planning staff, is a Professor of Law and international legal expert whose research addresses issues related to international law and institutions, with particular interests in global governance, human rights, and international financial law.

He recently spoke with Penn Law’s Office of Communications about his work in government and a recently published groundbreaking State Department review of how the United States approaches diplomacy and international development.

Penn Law (PL): What attracted you to government service, and what contributions do you think legal scholars can make in international affairs?

Prof. William Burke-White (WBW): First and foremost for me is the opportunity to serve our country. There is no greater contribution one can make than to serve in government. And 2008 was a moment when the call to service and the chance to change things was quite extraordinary. So, for me, it was a simple choice when presented with the opportunity to bring both my substantive knowledge and my commitment to serve Secretary Clinton at the State Department.

Beyond my desire to serve, as an international lawyer I have seen clearly that governments have the biggest ability to impact the international legal system. From that perspective, there was a very practical reason to come into government. And, in the process, I’ve learned a great deal that will influence my scholarship going forward.

PL: You and your colleagues on the Policy Planning staff worked on the Quadrennial Diplomacy and Development Review (QDDR), which was recently released. What is it, and why is it important?

WBW: When then-Senator Clinton was on the Armed Services Committee, she watched how every four years the Department of Defense produces the Quadrennial Defense Review, through which the Department of Defense looks ahead and asks, what capabilities it needs to meet America’s military needs in the years ahead? That is something the Department of State had never done. And so Secretary Clinton wisely decided a year and a half ago that we should undertake a Quadrennial Diplomacy and Development Review to look ahead at the challenges of the future and build the diplomatic and development capabilities America will need over the next decade. One of the surprises in government, even in the policy planning office where we’re supposed to be looking ahead, is the fact that day-to-day events to take over. Whether it’s an earthquake in Haiti or demonstrations in Egypt.

Through the QDDR Secretary Clinton tasked us with the simple question: “how can we do better?” And the answer that the Review, in all its 251 pages, is that the U.S. needs to lead in the world today through civilian power as much as through military power. In a world of budget constraint, civilian power is far cheaper, but it is also far more effective.

Another fundamental change in our foreign policy in the last 20 years is the fact that every civilian agency, whether it’s the Department of Agriculture or the Department of Health and Human Services, is active overseas. All of the things the civilian agencies of government are doing, when brought together in the service of a unified plan, constitute America’s civilian power. The QDDR lays out a blueprint for how we can harness that civilian power to deliver the results America needs today.

PL: What does the QDDR say about the importance of the rule of law and international legal regimes and institutions, as aspects of US diplomacy and diplomatic efforts?

WBW: The QDDR is a capabilities review. It examines the capabilities we need going forward. One of those capabilities is building a global architecture of cooperation: elevating our engagement with multilateral institutions; strengthening the way we deal with regional organizations; and working better with rising powers. International law itself is not a focus of the QDDR, largely because multilateral cooperation today often happens in other fora such as the G20, which is not about creating international legal rules, but rather getting governments to harmonize their domestic policies. And so the focus of the QDDR is much more on getting international organizations to work, and work well, and changing how we work with regional organizations, rather than saying we need more treaties.

PL: But the phrase “rule of law” comes up a lot in the report, along with the themes of course of international development and institution-building.

WBW: Absolutely, and there are two fundamental things that Secretary Clinton recognizes in this report. The first is that development is an equal pillar of American foreign policy, alongside diplomacy and defense. And that we need to build the capability of foreign governments to be able to be our partners in solving collective challenges, so that they can take care of their own problems themselves. Second, Secretary Clinton recognizes that a conflict or crisis anywhere in the world, where a state is weak or failing, is a threat to us, and that we need to prevent those conflicts so we’re not always responding to them in more costly ways.

And lurking in both of those recognitions, is something that the reports spends a lot of time talking about, which is the need to build effective justice systems within countries. If you don’t have a local justice system that can resolve grievances, then conflict will fester, or even after there’s been a military solution, on the country won’t be able to transition toward long-term development. And so is the QDDR charts a course toward the US role in building effective justice systems in post-conflict environments.

In the past, American’s response has often been to build security capacity in other countries, - for example, providing military assistance or training. Perhaps the best example is Haiti, where we have spent a vast amount of money building a very strong police force. And today, in Haiti, the police force is the most respected institution, domestically, within the whole government. However, we have not been as consistent or effective in helping states build justice systems that work. Haiti’s justice system has among the longest pre-trial detention times in the world. Ultimately that’s not sustainable, because you can have a good police system, but if you can’t then prove people guilty or innocent, you don’t resolve the underlying problems. So going forward from the QDDR, our approach will be far more holistic—investing in all aspects of security and justice sector reform.

Professor William W. Burke-White in the classroom

PL: How will your experience in government impact your research when you return to teaching? And what would you advise your law students who may be considering careers in public or government service?

WBW: My experience has transformed my scholarship as well as the way I think in some very important ways. It’s changed the way I think about international law itself. International law is based on state practice, what states actually do. And as a scholar who previously hadn’t been in government, it is easy to assume that everything a state does is the result of a conscious choice. One of the things you quickly learn in government is that more often than not, state practice is based on the fact that a decision was not made rather than that one was made.

Also, as an international lawyer, my experience has forced me to grapple with what international law means in a world of rising powers. Separate from the QDDR, the other major project I’ve worked on is a public report on global governance – how states cooperate in the international system. And through that process, I traveled to rising powers, including China, Brazil, South Africa, India, Japan, states in the Middle East, and and talked with them about the role of international law and how states cooperate. Likely my first major academic project when I return will take a serious look at how we create international legal rules in a world of rising powers – a world in which those powers’ interests are not always aligned and in which multilateral agreements are very, very hard to reach.

It’s not a sort of skepticism of international law, but a recognition that it’s much harder to reach international agreements today than it was when the international community was defined by the trans-Atlantic alliance that shared common values, even when interests divided.

In terms of my teaching, I have always been an idealist at heart. And my teaching will still have that note of idealism, but it will be grounded in the practicality of how international law actually gets made. It will recognize the bureaucratic process as a bigger part of that how government operates than I appreciated before coming into government.

And for students who seek careers in government service with an international dimension, my biggest realization is that basically every agency of the federal government—and even many state governments—are working overseas today. The Department of Agriculture had 22 pages of comments on the QDDR precisely because of all the work it is doing overseas. So, don’t confine your job search to the Department of State or the Department of Defense, but recognize that there are jobs that involve international work, and even international law, at every single agency of the US government.

My final piece of advice is that, particularly in the kind of career environment we have today, plotting a career that brings you both into government and out of government at different times along the way makes a great deal of sense. That if you do nothing but government, one could argue it’s hard to have perspective, but that finding a path that gives you the inside as well as the outside, that lets you bring new skills, new expertise, and new ideas into government, is essential.