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SHAPING FOREIGN POLICY IN TIMES OF CRISIS
Shaping Foreign Policy in Times of Crisis grew out of a series of meetingsthat the authors convened with all ten of the living former U.S. State Depart-ment Legal Advisers (from the Carter Administration to that of George W.Bush). Based on their insider accounts of the role that international law actu-ally played during the major crises on their watch, the book explores whetherinternational law is real law or just a form of politics that policymakers arefree to ignore whenever they perceive it to be in their interest to do so.
Written in a style that will appeal to the casual reader and serious scholaralike, this book includes a foreword by the Obama Administration’s StateDepartment Legal Adviser, Harold Koh; background on the theoreticalunderpinnings of the compliance debate; roundtable discussions with theU.S. State Department Legal Advisers and with Foreign Ministry LegalAdvisers; an in-depth case study of the treatment of detainees in the war onterror; and a comprehensive glossary of the terms, names, places, and eventsthat are addressed in the book.
Michael P. Scharf is the John Deaver Drinko–Baker & Hostetler Professorof Law and Director of the Frederick K. Cox International Law Center atCase Western Reserve University School of Law.
Dr. Paul R. Williams holds the Rebecca Grazier Professorship in Law andInternational Relations at American University, where he teaches in theSchool of International Service and the Washington College of Law.
Scharf and Williams both served in the Office of the Legal Adviser dur-ing the elder Bush and Clinton Administrations. In February 2005, Scharf,Williams, and the Public International Law and Policy Group, a nongovern-mental organization they cofounded and direct, were nominated for theNobel Peace Prize by six governments and the Chief Prosecutor of the Spe-cial Court for Sierra Leone for their work in helping with peace negotiationsand war crimes prosecutions.
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
This publication is in copyright. Subject to statutory exceptionand to the provisions of relevant collective licensing agreements,no reproduction of any part may take place without the writtenpermission of Cambridge University Press.
First published 2010
Printed in the United States of America
A catalog record for this publication is available from the British Library.
Library of Congress Cataloging in Publication data
Scharf, Michael P., 1963–Shaping foreign policy in times of crisis : the role of international law and the statedepartment legal adviser / Michael P. Scharf, Paul R. Williams.
p. cm.Includes bibliographical references and index.ISBN 978-0-521-76680-7 (hardback)1. International law – United States. 2. United States – Foreign relations – Law andlegislation. I. Williams, Paul R. II. TitleKF4581.S33 2010342.73′0412 – dc22 2009036861
ISBN 978-0-521-76680-7 HardbackISBN 978-0-521-16770-3 Paperback
Cambridge University Press has no responsibility for the persistence oraccuracy of URLs for external or third-party Internet Web sites referred to inthis publication and does not guarantee that any content on such Web sites is,or will remain, accurate or appropriate.
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Foreword: America’s Conscienceon International Law
Harold Hongju Koh∗
What role does international law play in foreign policy crises? That is
a question regularly discussed in the academy, but all too often without
the reality check of experience in the arena.
In the United States of America, law and tradition have assigned
the role of “conscience of the government” regarding compliance with
international law to the little-known Office of the Legal Adviser of
the Department of State.1 Created by statute in 1931, and resting on a
tradition of legal advice within the Department that dates back to 1848,
the Office of the Legal Adviser is charged with advising the Secretary of
State on all legal issues, domestic and international, and with advising all
branches of the U.S. Government on how to formulate and implement
the foreign policies of the United States in accordance with international
law and the responsible development of international institutions.2
Although the Legal Adviser is appointed by the President, by and with
the advice and consent of the Senate, and heads an office of nearly
two hundred government attorneys, until now, the history and function
of that office have been far less well chronicled than those of smaller
∗ The Legal Adviser, United States Department of State (2009–); U.S. Assistant Secre-tary of State for Democracy, Human Rights, and Labor (1998–2001); Martin R. FlugProfessor of International Law (on leave) and former Dean (2004–2009), Yale LawSchool. This foreword draws heavily on testimony delivered at my April 28, 2009, con-firmation hearing to be Legal Adviser and a previously published tribute to formerLegal Adviser Abram Chayes, see Harold Hongju Koh, An Uncommon Lawyer, 42Harv. Int’l L.J. 7 (2001).
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
by including a colloquy among former British, Russian, Chinese, Indian,
and Ethiopian Legal Advisers, which we arranged in cooperation with
the American Society of International Law (ASIL).
To contribute to the illumination of the role played by international
law in shaping foreign policy, we undertook six major activities. These
six activities sought to explore the contours of the relationship between
international law and foreign policy, as well as the unique and challeng-
ing role of the Legal Adviser in maintaining the balance between the
proper application of international law and protection of his govern-
ment’s national interest.
First, we met with a small number of former Department of State
and Foreign Ministry Legal Advisers to identify the themes to be
addressed throughout the structured conversation. Together with these
Legal Advisers, we developed five questions to guide the conversation:
Whether the Legal Advisers perceived international law to be bind-ing law, such that it should be able to constrain the options avail-able to the U.S. Government when dealing with a crisis central to itsnational security?
Whether the international legal rules relevant to a particular situationor crisis were clear enough to significantly shape the policy optionsavailable to the U.S. government?
Whether the Legal Adviser believed he had a duty to oppose policiesor proposed actions that conflicted with international law, in thosesituations in which such conflict was objectively manifest?
Whether the position taken by the Legal Adviser was seen as influ-ential in cases in which he advised against a course of action on thegrounds that it violated international law?
And, whether the Legal Advisers perceived international law to hin-der or promote their government’s interests in times of crisis?
It was also agreed that it would be useful to use the unique opportu-
nity created by this project to elicit answers to questions such as how the
Legal Advisers acceded to their positions, how international law played
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information
Cambridge University Press978-0-521-76680-7 - Shaping Foreign Policy in Times of Crisis: The Role of InternationalLaw and the State Department Legal AdviserMichael P. Scharf and Paul R. WilliamsFrontmatterMore information