International law, legal diplomacy and the counter-ISIL campaign.

Author:Egan, Brian
Position:Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law
 
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The Keynote Address was given at 5:00 p.m., Friday, April 1, 2016. The keynote speaker was introduced by Lori Fisler Damrosch, President of the American Society of International Law. The keynote speaker was Brian Egan, Legal Adviser of the U.S. Department of State.

INTRODUCTORY REMARKS BY LORI FISLER DAMROSCH *

It is my great honor to introduce our keynote speaker this afternoon, Brian Egan, Legal Adviser of the Department of State. In so doing, I am pleased to recall the close links between this Society and Legal Advisers over the years. Several Legal Advisers, either before or after their tenure in that office, served as president of this very Society. The ones I recall as my predecessors in this office, and who had a deep influence on my own career, include, in the memory of many others as well, John Stevenson and Monroe Leigh, former presidents of this Society.

Many, most, I hope I can say all, of the Legal Advisers have been Society members, including two who passed away since our last annual meeting, and were honored at our assembly last night when we read the roster of our departed members. Those happen to be the two Legal Advisers under whom I served, and they also deeply influenced many of us in this room, Herbert Hansell and Roberts B. Owen.

Many, most, again I hope I can say all, have spoken at our annual meeting, including, for example, Abram Chayes, and then the famous time that we had seven at one blow. I do not remember which seven they all were, but they might have included some or all of Davis Robinson, Abraham Sofaer, Edwin Williamson, Conrad Harper, the late David Andrews, William Howard Taft IV, John Bellinger, and on a different set of programs, Harold Hongju Koh. We have also had Acting Legal Advisers, including Michael Matheson, Joan Donoghue, and Mary McLeod, who all have addressed this gathering.

The American Society has provided a forum for important policy addresses by the Legal Advisers, including among those I have just named. We have also had the Legal Advisers bring before this gathering incumbent Secretaries of State, for example, as John Bellinger did by bringing Secretary of State Condoleezza Rice. Legal Adviser Harold Hongju Koh addressed this body more than once, including in a noted speech on international law and the use of force in 2010.

I turn now to our speaker and his place in this distinguished lineage of Legal Advisers and the place or the linkages between the Legal Adviser's Office and this body. In 1991, the American Journal of International Law published the report of a blue-ribbon panel, which included all of the then-living former Legal Advisers, to study the role of the Legal Adviser in the process of foreign policy formulation.

An objective, or at least a tacit, motivation of that study was to make recommendations for strengthening the influence of the Legal Adviser in the policy process, and one of those recommendations, which I will read, addresses the following question: "Should the Legal Adviser have prior experience in international law?" The recommendation was:

In view of the unique responsibilities of the Legal Adviser regarding international law, it is also highly desirable that the Legal Adviser have some previous professional training and experience in international law. An understanding and appreciation of international law is at the core of the Legal Adviser's role; without the previous experience that gives such understanding and appreciation, a Legal Adviser may be less effective in carrying out the special responsibilities of the job. Moreover, a U.S. Legal Adviser without prior experience may be less effective in working with foreign legal advisers, who typically have extensive previous experience in international law. I am very happy to say that the recommendation of the American Society of International Law in this regard has been honored in the appointments of the distinguished occupants of that office, including those whom we see sitting in the front row today, and certainly the most recently confirmed Legal Adviser and our keynote speaker today meets those qualifications.

Brian Egan was confirmed as the Legal Adviser at the U.S. Department of State on February 12, 2016, and it was worth waiting for. Prior to that, he served for over four years as Deputy Legal Adviser to the National Security Council and then as Legal Adviser to the National Security Council, a position that doubles as Deputy White House Counsel. He is an experienced and able public international lawyer, widely known and respected in the Beltway's national security community, and indeed far beyond. He previously worked at the Justice Department and was a Senior Assistant General Counsel for Enforcement and Intelligence at the Treasury Department. He worked in private practice for five years in D.C., and spent four years at the Legal Adviser's Office, making him one of the few career lawyers in international law to become a Legal Adviser since Green Hackworth, who went on to serve as a U.S. judge on the International Court of Justice.

I hope that you will agree with me that our keynote speaker today indeed satisfies this high standard to which we hold all speakers at our annual meeting, that they be expert in our subject, and we invite you to the podium.

KEYNOTE ADDRESS

By Brian Egan **

Thank you to Lori, Mark, and ASIL for inviting me. I am truly honored and humbled to be here today.

I am here today to talk about some key international law aspects of the United States' ongoing armed conflict against ISIL. In so doing, I am following in the footsteps of others who have gone to some lengths in recent years to explain our government's positions on key aspects of the law of armed conflict. This includes, most prominently, President Obama in his 2013 speech at the National Defense University and his 2014 remarks at West Point. A number of Administration lawyers have also spoken on these topics, including my predecessor, Harold Hongju Koh; former Attorney General Holder; and former Defense Department General Counsels Jeh Johnson and Stephen Preston. The Defense Department's promulgation of its Law of War Manual last year has also made a significant contribution to the public discourse on these issues.

Some have said, however, that our legal approach to the counter-ISIL conflict has been one of the "most discussed and least understood" topics of U.S. practice in recent years.

Thus, at the risk of disappointing you at the outset of this talk, I suspect and hope that much of what I will say today will not be surprising. I also hope, however, that these remarks will provide clarity and help you understand better the U.S. international law approach to these important and consequential operations.

International law matters a great deal in how we as a country approach counterterrorism operations. Prior to my confirmation, I served as a Deputy White House Counsel and Legal Adviser to the National Security Council for nearly three years. Based on my experience in that position, I can tell you that the President, a lawyer himself, and his national security team have been guided by international law in setting the strategy for counterterrorism operations against ISIL. I can attest personally that the President cares deeply about these issues, and that he goes to great lengths to be sure that he understands them.

To start from first principles--the United States complies with the international law of armed conflict in our military campaign against ISIL, as we do in all armed conflicts. We comply with the law of armed conflict because it is the international legal obligation of the United States; because we have a proud history of standing for the rule of law; because it is essential to building and maintaining our international coalition...

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