The Work of the Office of the Legal Adviser

I am grateful to Roger Alford and Duncan Hollis for inviting me to provide several blog entries on matters of particular interest to my office. Along with many of my colleagues in the Office of the Legal Adviser, I enjoy reading the blog and believe it provides a useful forum to discuss and debate important matters relating to international law.

Before making substantive comments, I’d like to provide a bit of context by explaining briefly what my colleagues and I do in the Office of the Legal Adviser, also known as “L.” We have approximately 160 lawyers who handle a wide range of interesting, often front page, issues. Our lawyers are exposed to many different substantive areas, as they typically rotate assignments within the Office after approximately two years. We also have lawyers stationed in New York, Geneva, The Hague and occasionally other posts abroad, including, at the moment, Baghdad. Our many alumni are in government, private practice and academia. White House Chief of Staff Josh Bolten worked in L early in his career, as did Judge Diane Wood of the Seventh Circuit.

L’s overall mission is to advise the Secretary of State and other State Department officials on the wide range of domestic and international legal matters that arise in the course of the Department’s work, including the work of the Foreign Service and U.S. diplomatic and consular posts abroad. L lawyers regularly draft, negotiate and interpret treaties, international agreements, UN Security Council and General Assembly resolutions, domestic statutes, Departmental regulations, Executive orders and other legal documents. We provide guidance to the Executive, Congress and the judiciary on questions of international and domestic law. We represent the United States in meetings of international organizations and in international negotiations on a wide range of subjects. We take part in domestic and foreign litigation affecting the Department’s interests. And we represent the United States before international tribunals, including the International Court of Justice. As we support Department personnel in the formulation and implementation of U.S. foreign policies, we seek to promote the development of international law and its institutions as a fundamental element of those policies.

L is involved in nearly all of the Department’s most significant activities. We have played a leading role over the past year in drafting landmark UN Security Council Resolutions on Iran, North Korea, and Lebanon. One of our attorney-advisers spent six weeks in Abuja, Nigeria last spring where she worked closely with senior policymakers, including former Deputy Secretary of State Robert Zoellick, to negotiate successfully a peace agreement between the Sudanese government and a faction of Darfur’s largest rebel group. Another has played a leading role for nearly twenty years in advancing U.S. efforts to promote peace in the Middle East. Others have worked intensively on nearly every important aspect of U.S. diplomatic efforts to resolve crisis in the Balkans, including most recently efforts to resolve the final status of Kosovo.

Our work is as varied as all of international law. One of our lawyers is just back from Antarctica where he provided advice to the U.S. team that is conducting a compliance inspection of other countries’ stations under the Antarctic Treaty. Another of our lawyers recently served as legal counsel to the U.S. delegation to a Plenipotentiary meeting in Antalya, Turkey, of the International Telecommunications Union. As Legal Adviser, I led the U.S. delegation to two international conferences in Geneva to enable the Israeli national society, the Magen David Adom, to join the International Movement of the Red Cross and Red Crescent. And I led a delegation of U.S. government officials, including other L lawyers, to Geneva to present our second periodic report to the UN Committee Against Torture.

L lawyers work especially hard on human rights and international criminal justice issues. We played a key role in helping establish the International Criminal Tribunals for Rwanda and for the former Yugoslavia and the Special Court for Sierra Leone, and we continue to work extensively on legal issues relating to these tribunals. One of my priorities has been to emphasize the support the U.S. Government provides to international criminal justice efforts around the world, and I meet regularly with the leaders of the international criminal tribunals. L lawyers also lead the work on law of war issues, and one of my deputies leads the U.S. delegation to meetings concerning conventional weapons that may cause unnecessary injury or be indiscriminate in their effects.

L also makes major contributions to the Department’s economic goals, especially in the areas of trade and investment. Among other things, we help negotiate bilateral debt and investment agreements, participate in WTO cases, represent the United States in the arbitration of NAFTA investor-state cases, and seek to resolve a variety of international claims and investment disputes, including serving as counsel for the U.S. Government at the Iran-U.S. Claims Tribunal. We advise the Department and the Committee on Foreign Investment in the United States in the negotiation and implementation of the U.S. Government’s civil aviation agreements.

As Secretary of State and a former professor of international relations, Secretary Rice recognizes the critical importance of international law to a well-ordered international system, and she regularly emphasizes the U.S. commitment to international law and the rule of law around the world. In January 2005, within days of becoming Secretary, she told a Department town hall meeting that international law is critical to our diplomacy and said “We are a country of laws. We will be a country of laws. We respect international obligations and treaty obligations and international law. And we’re going to continue to make that very clear to the world.” As most readers of Opinio Juris are aware, she also addressed both the 99th anniversary meeting of the American Society of International Law in April 2005 and its Centennial meeting in March 2006.

At Secretary Rice’s request, I have made it one of my top priorities as Legal Adviser to speak out publicly on international law issues both internationally and domestically, in order to emphasize the U.S. commitment to our international legal obligations, to explain our legal positions, and to respond to those who have questions about these positions, As part of this effort, I have traveled to many European cities to exchange views with legal advisers and other representatives from foreign ministries, the EU, and international organizations as well as to speak at universities and think-tanks. I have also tried to speak regularly to the international media, especially in the Muslim world, in order to reach larger audiences on issues of international law. For those who may be interested, transcripts of many of my remarks are available here.

I have tried especially to address questions about U.S. laws and policies relating to detainees. I am acutely aware of the concerns in the international community about U.S. policies relating to the detention, treatment, and prosecution of terrorist suspects. These are very difficult and complicated issues, as evidenced by the lack of agreement about the legal rules that should apply. I certainly do not expect that everyone will agree with our legal positions. But I do hope that we can demonstrate that our lawyers are prepared to listen to international concerns and to engage actively in discussion. I would also hope that, after listening to our analysis of the issues, readers would agree that, even if they are not comfortable with U.S. policies, there are not clear and easy legal answers.

Over the next few days, I will focus my postings on several issues relating to the law of war and will make another posting on issues relating to immunities. I look forward to discussing these issues with you over the coming days and, again, appreciate the opportunity to be a guest blogger on this site.