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Reflections on Four Years as Legal Adviser

John B. Bellinger, Legal Adviser
Keynote Address at International Law Weekend, American Branch of the International Law Association
New York City
October 17, 2008

As Prepared

Thank you for that kind introduction. It is a pleasure and honor to be invited to speak before you today. It has been one of the true rewards of the office that as legal adviser I have had the opportunity to discuss issues of the greatest international importance with distinguished audiences around the world. In my four years as legal adviser, this is the first time I have been able to attend this important gathering on International Law Weekend. I’d like to extend my thanks for the invitation to speak to the American Branch of the International Law Association and in particular to Jim Nafziger, who serves as a valued member of the State Department’s Advisory Committee on International Law.

Today, I would like to reflect a little on my tenure as legal adviser and hopefully offer a few insights about the nature of that office and the issues we have confronted in the past four years. I was confirmed as legal adviser in April 2005, shortly after Dr. Rice herself took office as Secretary of State. At that time, I set out three principal goals for my tenure.

The first – it almost goes without saying – was to provide the best possible legal advice to the Secretary, to the Department of State, and to the U.S. government. A key part of carrying out that duty for me as legal adviser was to ensure that international law is considered and respected in decision-making by every component of the Department of State and by every department of the U.S. government. That has not always been the case. In this administration or any other, international legal rules are not always accorded the consideration they warrant. My principal goal was to change that, and to ensure that policymakers’ decisions are appropriately informed by international law.

My second goal – closely related to the first – was to demonstrate to the world the United States’ commitment to international law by engaging other countries in dialogue on international legal issues. During the Administration’s first term, the United States received considerable criticism for its perceived attitude toward international law and international institutions. Secretary Rice set out to change that. Upon entering office, she declared that “[t]he time for diplomacy is now.” And the job of engaging in international legal diplomacy fell to the office of the legal adviser. For my part, I believed that the perception of the United States as unconcerned with international law was largely inaccurate. It was based partly on misunderstandings of the U.S. position on particular issues, and sometimes fueled by critics who cast their policy disagreements as legal claims. Still, some of the criticism hit closer to the mark, and reflected the fact that the United States at times appeared to stand apart on key international legal issues. I set out to engage in dialogue on these issues, and to demonstrate that despite disagreements on particular issues, the United States values, and is committed to, international law.

My third goal was to further strengthen the legal adviser’s office – that institution we refer to inside the building as “L” – and to ensure its position as the premier international legal office in the U.S. government. This meant recruiting the best lawyers we could find – from top law schools, from premier clerkships, and from great law firms. L’s 180 or so attorneys handle every kind of legal issue affecting the Department of State – from advising on UN Security Council Resolutions to resolving employment issues – and they occupy postings in Washington and around the world, including Geneva, The Hague, Paris, and Baghdad. They are first and foremost great lawyers, but they are also, for lawyers, an unusually satisfied group of people. It has been an absolute pleasure for me to work among them for the last four years.

I’d like to focus my remarks today on my first two goals. Let me begin by discussing how L ensures that international law is considered and respected in policy decision-making. In the past four years, L has been centrally involved in almost every major Department initiative and in every major U.S. government matter with a significant international legal aspect. L’s advice is regularly sought by Secretary Rice and senior Department officials, by the White House, and by other agencies, who have relied upon that advice as the authoritative view of the U.S. government on international legal questions. The range of issues is remarkable. Pick up a newspaper and for every international issue you see, L is on the scene, advising policymakers and ensuring that what the United States says and does is appropriately informed by, and complies with, international law.

Recently, these issues have included U.S. policy toward North Korea, on which L lawyers have participated in the Six-Party talks, and toward Iran, where L lawyers have been closely involved in U.S. and international efforts to address the threats posed by Iran’s nuclear and missile programs. On Iraq, L has played a leading role in supporting negotiations for a status of forces agreement slated to take effect when the UN mandate in Iraq expires at the end of this year. And L has been at the center of the Middle East peace process, helping the Secretary propose creative solutions to some of the most difficult issues confronting the Israelis and Palestinians as they work toward a peaceful resolution of their differences.

Libya is another salient example. After Libya gave up its nuclear program, one obstacle to rapprochement with the United States was ongoing litigation involving claims brought against Libya by U.S. victims of terrorism. L lawyers, led by Deputy Legal Adviser Jonathan Schwartz, helped negotiate an agreement with Libya to provide rapid recovery of fair compensation for the American victims while at the same time providing Libya with legal peace from further U.S. claims. This agreement – clearly one of the largest settlements in history with a foreign state for acts of terrorism – is still being implemented, but we remain optimistic that shortly the U.S. victims will receive the full benefits of the agreement and this obstacle to U.S.-Libya relations will be put behind us.
Kosovo and Georgia are further examples of L’s prominent role. With respect to Kosovo, L played a critical role in advising policymakers on the decision to recognize Kosovo’s independence, and in recent months, L lawyers have been closely involved in events surrounding last week’s UN General Assembly vote to refer the issue of Kosovo’s independence to the International Court of Justice. On Georgia, L has been called on regularly to provide legal analyses regarding Russia’s actions and U.S. options in response.

The list goes on – climate change, Sudan, the Arctic, Afghanistan, and even on the Hill, where L was instrumental in securing the Senate’s advice and consent to ratification for a record ninety treaties this past Congress. There are a few issues where I think L’s role in this regard was especially important, and which warrant lingering over the details. One such issue is the saga of the United States’ implementation of the International Court of Justice’s Avena decision – an issue that has been with me throughout my tenure as legal adviser.

Most of you are no doubt familiar with the case, for it has raised some of the most difficult and novel international legal questions in recent memory. You will recall that Avena was an action brought by Mexico on behalf of fifty-four Mexican nationals who had been convicted and sentenced to death in U.S. courts. Mexico claimed that with respect to these individuals, the United States had failed to abide by its obligations under the Vienna Convention on Consular Relations – namely, that law enforcement authorities had failed to inform the defendants that they were entitled to have the Mexican consulate notified of their detention. In light of these alleged violations, Mexico sought to have the defendants’ convictions and sentences invalidated, or at least, re-examined. In 2004, the ICJ ruled in favor of Mexico, holding that its nationals named in the Avena decision were entitled to review and reconsideration of their convictions and sentences in light of the Vienna Convention violations.

The court’s holding presented a problem for the United States in light of its federal structure. On the one hand, Avena imposed on the United States an international legal obligation to provide review and reconsideration for the individuals named in the decision. On the other, United States domestic law — both state and federal — continued to bar many of those same individuals from having their Vienna Convention claims heard on the merits in U.S. courts. In short, the Avena decision prompted a real question about whether and how the United States was to comply with its international legal obligations.

This was the first major international law issue Secretary Rice faced during her tenure, and she expended considerable effort inside the Administration arguing that the United States had to find a way to comply with its obligations under the court’s decision, no matter how much we disagreed with the decision itself. Ultimately, on her advice, the President in February 2005 issued a determination that state courts were to give effect to the Avena Judgment. As popular as that decision probably was in this room, the notion of providing more legal process to convicted murderers – individuals who had already received all the process they were entitled to under our domestic laws and Constitution – was equally unpopular elsewhere, especially in the President’s home state of Texas. It was not an easy decision for the Secretary to recommend, or for the President to make. And it stands as a signal demonstration of the United States’ commitment to complying with our international law obligations in the past four years.
As you know this story does not end there. After several more years of litigation, the Supreme Court ultimately concluded this past March in the Medellín case that the President’s determination implementing Avena exceeded his authority. The Court further concluded that the Avena decision itself was not self-executing and therefore was not binding of its own force in state and federal courts. Although the Court recognized that no one disputed that the United States has an international law obligation to comply with the Avena decision, it nevertheless held that that obligation did not bind state and federal courts as a matter of domestic law. As you know, this is a hugely important international law decision that will likely shape treaty law for years to come.

Following the Medellín decision – and despite the fact that after Avena the United States had withdrawn from the Optional Protocol to the Vienna Convention providing for dispute resolution in the ICJ – Mexico again initiated action in the ICJ. It contended that the ICJ retains jurisdiction under its statute to interpret a prior decision where a dispute arises as to its “meaning or scope.” Mexico’s application to the court argued that the United States incorrectly interpreted Avena to impose an obligation only to find some means to implement the decision and not an obligation ultimately to provide review and reconsideration of the convictions and sentences of the individuals named in Avena. We rejected Mexico’s assertion that there is such a dispute, and made clear that we fully understand our obligations under the Avena decision. I personally argued our case to the court in June. Nevertheless, in July, the ICJ indicated provisional measures on the basis of Mexico’s request, and is now deliberating on the request for interpretation itself. In the midst of this litigation, as many of you know, José Medellín was executed by the state of Texas.

L has been at the center of every aspect of this case. We argued strongly that the Avena decision imposed an international law obligation with which we were bound to comply, and that the Administration should take steps to implement that obligation. In the domestic litigation that followed, we provided essential support to the Department of Justice in defending the President’s determination. After losing in the Medellín case, we spearheaded efforts to engage leaders in the state of Texas and other states in order to press for compliance with the ICJ’s decision. In June, on our recommendation, Secretary Rice and Attorney General Mukasey sent a letter to the Governor of Texas requesting that Texas take steps to give effect to the Avena decision. When Mexico returned to the ICJ, we sought to demonstrate to the court the seriousness with which the United States has sought to comply with its obligations under Avena and to explain the complications in our domestic law system that have made compliance difficult. And whatever happens in the latest round of ICJ litigation, the United States will remain obligated under international law to implement the Avena decision, and L will be at the center of our efforts to comply.

Another issue in which L, and I personally, have been centrally involved is the Administration’s push during the last two years to secure Senate approval of the UN Convention on the Law of the Sea. When I was the NSC Legal Adviser, I led the Administration’s review of all of the unratified treaties we had inherited from the previous Administration. We were aware that President Reagan had refused to sign the treaty after it was first negotiated in 1982, and therefore wanted to ensure that the treaty got close scrutiny. An interagency review concluded that all Departments of the U.S. Government strongly supported becoming party to the treaty.

The Law of the Sea Convention guarantees our military – both our ships and planes – freedom of navigation through the world’s oceans at a time when they are being asked to take on more missions and are facing increasing challenges to their activities. It codifies our sovereign rights over all the resources in the ocean and on the ocean floor for a 200-mile economic zone off our coastline, one of the longest coastlines in the world. And, perhaps most significant right now, it would allow us to gain maximum legal certainty regarding the oil, gas, and mineral resources on our continental shelf beyond 200 nautical miles from our coastline. This area likely extends at least 600 miles north of Alaska. The treaty is strongly supported by all sectors of U.S. industry – shipping, oil and gas, fisheries – as well as by environmental groups. Nearly all other countries are party to the Convention, and U.S. interests suffer because we do not participate in the Convention’s decision-making bodies.

When I moved to the State Department, I made it a priority to win Senate approval for this important treaty. When I began this project, I have to say I was optimistic. I thought that the President’s personal endorsement, coupled with the strong backing of the Defense Department and the Department of Homeland Security during a time of armed conflict, would be enough to overcome any lingering concerns about the United States’ joining this vital international agreement. But as you likely know, although the Senate Foreign Relations Committee favorably reported the treaty last fall – as it had a few years before – we have been unable to persuade the full Senate to act upon it.

A number of Senators are opposed to joining a “UN” treaty that establishes institutions to regulate deep seabed mining and provides for binding dispute settlement. I am convinced these concerns are unfounded. As the nation with the world’s largest navy, an extensive coastline, and substantial commercial shipping interests, the United States certainly has much more to gain than lose from joining the Law of the Sea Convention. In my view, the failure to approve the treaty is an instance in which a reflexive aversion to international law has produced a policy that is contrary to our interests. I am confident that the United States Senate will approve the Convention in due course, and the United States will be able to enjoy its benefits.

Another area in which L has sought to ensure that international law is respected and considered is with regard to international humanitarian law, also known as the law of armed conflict. After 9/11, and the U.S. response, some countries raised questions about the United States’ commitment in this area. I regarded it as absolutely critical that those doubts be put to rest by ensuring that international humanitarian law informed all our decision-making with regard to issues of armed conflict, including the conflicts in Iraq and Afghanistan, and the conflict with al Qaeda and other terrorist groups. For example, working from the foundation established by the Hamdan decision, we have sought to ensure that the protections provided by Common Article 3 of the Geneva Conventions are a minimum baseline for all our operations. Secretary Rice and I have developed an outstanding relationship with the International Committee for the Red Cross, and are in regular dialogue with ICRC President Kellenberger. And just last month, L participated in the completion of work on the Swiss Initiative on Private Military and Security Companies, which, while not legally binding, identifies good practices to assist States in ensuring respect for international humanitarian law and applicable human rights law.

I am particularly proud of our successful effort to negotiate in 2006 the Third Additional Protocol to the Geneva Conventions, which created an alternative symbol to the Red Cross and Red Crescent – a red crystal – paving the way for Israel’s national relief society – the Magen David Adom – and the Palestinian Red Crescent Society to enter the International Red Cross and Red Crescent Movement. I led the U.S. delegation for this contentious negotiation as well as the delegation to the subsequent Red Cross conference which approved a separate agreement between the Government of Israel and the Palestinian Red Crescent to permit Red Crescent ambulances to move freely in the Palestinian territories and through Israeli checkpoints. In an area of the world where even the best ideas can be ruined by a bitter politics, these were significant achievements.

L has also sought to ensure that international law is considered and respected in our domestic courts, in the context of litigation involving foreign states and their officials. Many outside L do not realize that domestic litigation is a significant part of the office’s work. In fact, the State Department, and L in particular, often have a substantial interest in ensuring that U.S. courts take account of relevant domestic and international legal norms, including principles of state and official immunity, and the political question and act-of-state doctrines.

Litigation involving foreign governments and their officials has increased substantially in recent years due to several developments. First, cases under the Alien Tort Statute, or “ATS,” have become ever more frequent, despite the Supreme Court’s attempt to limit the scope of that litigation in the 2004 Sosa decision. Under the ATS, U.S. courts have come to exercise a kind of universal civil jurisdiction to hear disputes arising in far-flung places involving persons with no connection to the United States. Apart from the aggravation this litigation causes foreign governments (whose courts generally do not exercise such broad jurisdiction), ATS litigation puts our courts in the position of trying to divine the content of international law without any real guidance from the political branches – precisely those branches that are charged with creating and implementing the United States’ obligations under international law. Among the suits that have been brought in U.S. courts are a suit against an American company for selling bulldozers to Israel under a U.S. military assistance program; a suit against high-ranking government officials of the United Arab Emirates alleging involvement in abuses of underage camel jockeys; a suit against the director of the Israeli General Security Service for his alleged role in a 2002 military attack in the Gaza Strip; and a suit against a Canadian energy company for allegedly aiding and abetting human rights abuses by investing in Sudan. L has worked closely with the Department of Justice to argue that the ATS does not authorize our courts to hear suits such as these. Earlier this year, we petitioned the Supreme Court to hear an important case involving a class-action suit against dozens of U.S. and foreign corporations for their activities in Apartheid-era South Africa. It was unfortunate that, due to recusals among the justices, the Court did not have a quorum to consider the petition, and we hope the Court will soon find another opportunity to clarify the limited scope of the ATS.

A second reason for the increase in L’s work in this area is the prevalence of terrorism-related litigation. Some of this litigation falls under the terrorism exception to the usual immunities enjoyed by States under the Foreign Sovereign Immunities Act. But some terrorism-related litigation also involves suits against foreign banks or other authorities and institutions. One particular example is the litigation involving the Palestinian Authority, which is currently subject to hundreds of millions of dollars in damage awards by U.S. courts to U.S. victims of terrorism. The State Department has followed this litigation closely, with an eye both to ensuring fair compensation for victims and to mitigating the financial burden damage awards might place on the meager resources of the Palestinian Authority.

So that is a survey – I hesitate to say “brief survey” – of a few of the major issues on which L has sought to ensure respect and consideration for international law values. In every one of these examples, L has not only been attuned to the need to provide sound technical legal advice to our clients, but also to the need to ensure that policymakers’ decisions truly take account of, and are informed by, international law. I have been proud of how the office has performed in difficult times.

As I noted at the outset, my second goal was closely related to the first – having ensured that international law is respected and informs policymakers’ decisions, L needed to make sure that other countries understand that the United States does take international law seriously. From the start, the Secretary has been invaluable in this regard. She understands the importance of international law, and is determined to ensure that the United States considers and abides by its international legal obligations. Three days after taking office, the Secretary clearly announced the United States’ commitment to international law. “I want to be very clear,” she said. “This Department, along with the rest of the Administration, will be a strong voice for international legal norms, for living up to our treaty obligations, to recognizing that American’s moral authority in international politics also rests on our ability to defend international laws and international treaties.” In each of her first two years in office, the Secretary delivered addresses at the annual gatherings of the American Society of International Law – the first Secretary of State to do so in more than thirty years. The Secretary has stood by her commitment to ensuring that international law is respected and considered, and she has consistently backed my legal advice. It has been a privilege to serve as her legal adviser.

At the Secretary’s urging, L in the last four years has engaged in intensive efforts at international legal diplomacy. This aspect of the office’s work has been a central part of my tenure as legal adviser. I have traveled extensively over the last four years in an effort to engage other countries in dialogue on international legal issues. I have visited dozens of countries – meeting regularly with legal advisers from Europe, Asia, and North America – and have given hundreds of talks and press briefings on international law issues, many of them to audiences abroad. Much of our international legal diplomacy has involved informal bilateral discussions with other governments. But we have also participated more actively in multilateral discussions of international legal issues. For example, for the last four years I have attended the semi-annual meetings of the committee of legal advisers for Council of Europe countries, also known as CAHDI, as well as the annual meetings of the Sixth Committee of the UN General Assembly in New York. Our active participation in these meetings has borne abundant diplomatic fruit.

One issue to which I have devoted considerable attention has been the International Criminal Court. Since I participated in a panel discussion on this topic earlier this morning, I won’t dwell at length on the ICC. I will simply say that I have worked hard over the last four years to make clear that even though the U.S. Administration may disagree with many aspects of the Rome Statute – a disagreement, incidentally, that did not begin with the Bush Administration – we are nonetheless strongly committed to the Rome Statute’s goals of ending impunity for those who commit genocide, war crimes, or crimes against humanity. Although it is unlikely, in the absence of significant changes to the Rome Statute, that the United States will become a party in the foreseeable future, that does not mean there is no room for a modus vivendi between the United States and ICC supporters. The future of that relationship depends on the ability of both sides to find constructive and practical ways to work together to advance our shared interest in promoting international criminal justice. The State Department and L have been at the forefront of those efforts. In 2005, in one of the first major policy decisions of Secretary Rice’s tenure at the State Department, the United States accepted the decision of the UN Security Council to refer the Darfur situation to the ICC. We have repeatedly said that we want to see the ICC’s Darfur work succeed. And we have not supported recent efforts by some countries, including ICC supporters, to invoke Article 16 of the ICC Statute to defer the investigation of crimes in Darfur.
Another area – perhaps the most significant area – of L’s engagement in international legal diplomacy has been in fostering dialogue with the United States’ European and other partners on legal issues arising from the conflict with al Qaeda and other terrorist groups. During its first four years, the Administration did not do as good a job as it might have in explaining its legal decision-making on terrorism issues to its allies. This led the 9/11 Commission to recommend in 2004 that “[t]he United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists.” L has led the Administration’s efforts over the last four years to act on this recommendation. We have met bilaterally and multilaterally with foreign governments and with international legal experts. Next week, I will attend our tenth round of discussions on terrorism issues with the legal advisers of the 27 EU countries. We have also hosted two conferences of six of our closest allies to try to reach consensus on the legal rules that apply to fighting international terrorism. Beyond these direct engagements with our allies, L lawyers have worked tirelessly on speeches and articles – even postings on blogs such as Opinio Juris – trying to meet our critics on these issues and to narrow the points of disagreement. I have personally invested a great deal in these efforts – even in instances when I had urged a different policy – because I believed that the United States needed above all to explain its policies to both its critics and its allies, and to listen to their concerns.

The dialogue with our allies focused on several critical questions related to the conflict with al Qaeda and other terrorist groups, including issues regarding the use of force against transnational terrorist groups, the humane treatment protections applicable to terrorist detainees, the definition of a combatant or belligerent in an armed conflict with a terrorist group, the review procedures for terrorists detained as enemy combatants, and the applicability of human rights law in an armed conflict.

There has proven to be significant opportunity for a convergence of views on some key issues. Part of what separated us initially was rhetoric. The United States’ references to a “Global War on Terror,” for example, were sometimes misunderstood to suggest that we thought war was the principal, or even only, framework for countering terrorism, and that we could lawfully use force against all terrorists at all times wherever they might be located. Other countries understandably bristled at that notion. On the other side, the United States’ critics often appeared to argue that combating terrorism was solely a law enforcement matter and challenged the readily defensible position that states can use force against terrorists groups that attack or imminently threaten to attack them. Both sides have clarified their positions. We have made clear that “Global War on Terror” is not a legal term of art, and that in many instances, law enforcement can be an appropriate paradigm for addressing terrorist threats. Likewise, our allies no longer resist the idea that a State can be in conflict with a transnational terrorist group such as al Qaeda. On other issues, such as those related to the treatment of detainees and procedures for reviewing their detentions, we have moved considerably closer to our allies’ positions partly as a consequence of U.S. domestic legal developments – including newly enacted legislation and the Supreme Court’s decisions in Rasul, Hamdi, Hamdan, and Boumediene. There remains work to be done on this issues – work I expect the next Administration, and the next legal adviser, will take up – but I believe we have laid the foundation for a more cooperative relationship with our allies on these legal issues.

I have noted today many examples from my years as legal adviser – examples that I think reveal the important role L has played. In a time when the role of international law is a hotly contested legal and political issue – and when the United States’ commitment to international law is questioned – the need to ensure that international law informs decision-making is more vital than ever. It is critically important that L continue to perform this function. But it is also critically important that international law finds a constituency in every component of the U.S. government – in the Executive, in the Congress, and in our courts – wherever international law issues arise. Paying heed to international law is not a mere matter of altruism or gratifying foreign governments; the United States, as much as any nation, relies on international law to protect its interests. For this reason, the twin tasks of ensuring the United States’ commitment to international law and demonstrating that commitment to the world are, and will remain, essential to the United States’ standing in the world. My sincere hope is that the work we have done over the past four years leaves the office of the legal adviser a little better prepared for those tasks than it was before.

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