International Law and United States Foreign Policy: Some Reflections on the ASIL/ILA Report on the Role of the Legal Adviser

In October 1988, the American Society of International Law and the American Branch of the International Law Association established a Joint Committee on “The Role of the Legal Adviser of the Department of State.” The Committee’s charge was to examine the role of the Legal Adviser of the Department of State in encouraging respect for international law in the U.S. government decision making process, and to make suggestions and recommendations to enhance the Legal Adviser’s effectiveness in this regard. The members of the Committee included nine former Legal Advisers, two former Secretaries of State, a former U.S. Attorney General, a former President’s Counsel, other past and present U.S. governmental officials, former Legal Advisers to other countries, academics and private attorneys. The October 1990 report of the Committee to the law sponsoring organizations is reprinted in an Appendix to this article and in 89 American Journal of International Law 358 (1991).This article, written by the Rapporteur of the Committee, points out and comments on important features of the Report. It notes, in particular, that the Report: (1)is the most comprehensive attempt to date to address broad issues of the role of international law and international lawyers in U.S. foreign policy; (2) recognizes that problems of U.S. compliance with international norms do occur; (3) suggests the unique role and responsibilities of the Legal Adviser and other government attorneys regarding U.S. participation in the international legal system; (4) realistically addresses the potential conflict between the Legal Adviser’s responsibility to ensure U.S. compliance with international law and his or her political role as an adviser to the Secretary of State and advocate for administration policies; (5) makes concrete proposals designed to strengthen the Legal Adviser’s authority and influence and effectiveness in encouraging respect for international law; and (6) emphasizes the important potential role of the community of international lawyers and their professional organizations in this respect.The article concludes with some personal reflections by the author, drawing on his experience in the preparation of the Report and as an attorney in the office of the Legal Adviser, regarding both the report and broader issues concerning the role of international law in U.S. foreign policy and the U.S. commitment to and compliance with international law. The author suggests in particular: (1) that the U.S., like most other countries, generally does comply with its international obligations and that problems in this respect typically concern only a few controversial areas of law; (2) the need to find out more about why nations do or do not comply with their international law obligations and the role that government legal advisers actually play in this respect; (3) the desirability of examining the role of, not only the U.S. State Department Legal Adviser, but of all foreign office legal advisers collectively in making the international legal system work and of fostering closer consultative and other cooperative relationships among foreign office legal advisers from the U.S. and other countries; and (4) the likelihood that the problem in achieving greater U.S. compliance with international law lies – not so much in deficiencies in our procedures and institutions for delivering sound legal advice to U.S. government officials – but rather an apparent broad skepticism regarding international law on the part of the many U.S. officials, the media, and the public, and (5) the consequent need to learn more about what these attitudes and perceptions are and how they might be changed so as to encourage broader governmental and public understanding of and respect for the role and importance of international law in an effective U.S. foreign policy.