The Rule of Law in International Security Affairs: A U.S. Defense Department Perspective.

• Author: Ney, Paul C., Jr.

Thank you very much for inviting me here today. I am especially grateful to Dean Chris Guthrie, Professor Mike Newton, and Mrs. Sharon Charney, who generously endowed this lecture series in memory of her late husband, Professor Jonathan Charney. Thank you, as well, to all the members of the Charney family for sharing him with the Vanderbilt community. Professor Charney taught at Vanderbilt for forty years and was one of the nation's preeminent scholars and practitioners of international law. He was a member of the U.S. delegation to the Third United Nations Conference on the Law of the Sea, which resulted in the 1982 United Nations Convention on the Law of the Sea. (1) At the time of his untimely passing in 2002, he was also the Co-Editor-in-Chief with Yale Law Professor Michael Reisman of the American Journal of International Law.

I feel particularly honored as the first alumnus of Vanderbilt Law School to deliver the Charney Distinguished Lecture in International Law. (2) In a May 27, 2003, Joint Resolution, the Tennessee General Assembly honored Professor Charney for "his manifold professional achievements, his impeccable character, and his stalwart commitment to living the examined life with courage and conviction." (3) His colleague, Professor Jeffrey Schoenblum, drew a more colorful sketch: "Jon could at times, and quite proudly and purposely, be one ornery guy.... He was for quality, for demanding performance. He was against sophistry, mintmarks, and other indicia of status not substantiated by tangible intellectual product of unquestionable merit." (4)

In his spirit, I will try to avoid "sophistry" and "mintmarks." My aims are to help you understand how international law affects the U.S. Department of Defense (DoD) in practice and how DoD abides by the rule of law in international security affairs.

I understand that many of you in the audience are first-year law students. You and others may have little idea of what international law is or what international lawyers do. I was in the same boat as a law student, until I participated in the Jessup International Law Moot Court Competition. But even then, I had little understanding of what international law in practice meant.

That has certainly changed in my current position. International law issues come up with some frequency for the civilian and military lawyers I work with at the Department of Defense today. We at DoD work with international law in many different ways. Our military forces on the ground assess and implement applicable laws of war every day. Our sailors navigate according to the law of the sea. We provide a range of assistance to foreign partners, including training, equipment, intelligence sharing, and operational support, and, in doing so, we comply with applicable domestic and international law. (5) This includes, for example, ensuring that partner forces receiving U.S. assistance are vetted for credible allegations of gross violations of human rights. (6)

The lawyers in my office also work closely with lawyers from other Departments and Agencies in formulating our advice and in articulating U.S. Government positions on important legal issues. We work with the Department of State in the negotiation of treaties and in its conduct of U.S. foreign relations, especially as related to national and international security matters. (7) We work with the Department of Justice (DOJ) on legal issues relevant to DoD that arise in U.S. courts, (8) typically in matters to which the Department is a party or that implicate DoD's interests. We very recently worked closely with our colleagues in the Department of State and at the National Security Council (NSC) to ensure that my remarks today did not inadvertently endorse positions inconsistent with U.S. Government policies or practices.

A large part of our job is giving legal advice that helps shape and implement defense policy. DoD lawyers play an essential role in ensuring that the planning and execution of U.S. military operations comply with the law, including international law. We advise on relevant treaty terms and customary international law rules. We give our clients--DoD civilian and military leaders--our best advice about how domestic and international law apply to the facts before them. Most of this activity is behind the scenes, and much of it involves classified information. But just because our role is not as public as filing briefs or arguing in front of judges doesn't mean we are any less dedicated to the rule of law.

By way of background, "[i]nternational law consists of a body of rules governing the relations between States." (9) In certain circumstances, international law also prescribes rules for individuals or other non-State entities, like non-State armed groups. (10) In general, international law is formed when: 1) States accept rules in treaties (also called "conventions" or "agreements"); or 2) rules develop in unwritten form known as customary international law. Customary international law results from a general and consistent practice of States followed by them from a sense of legal obligation or, in Latin, opinio juris. (11) General principles of law common to the major legal systems of the world are also a recognized part of international law. (12)

In my view, abiding by the rule of law has two key elements: first, an international law rule must be recognized as established in treaty or customary law, and second, a State must implement and comply with this rule. This means that the rule influences the State's behavior both ex ante, by informing available policy choices in advance of any action or decision, and ex post, because the State has established meaningful compliance mechanisms or institutions and holds accountable as appropriate those who violate that rule. Both of these aspects of influencing State behavior are critical, and I will address each of them in my remarks today.

My lecture will proceed in two parts. First, I'd like to focus on how international law is formed, especially customary international law, using examples from cyberspace and outer space. In doing so, I must highlight the primacy of State practice. Second, I will discuss what it means to abide by and implement international law. Throughout both segments, I will refer to Professor Charney's path-marking work on the law of the sea and international law theory, and also to real-world implementation. In so doing, it may be worth keeping in mind what Professor Reisman said about Professor Charney: "While he was interested in theory and contributed to it and he had many suggestions to make about improving international law, he was, at heart, an empiricist. He respected the complexity of events." (13)

I.

There is typically a distinction drawn between the law of permissible grounds for resorting to force--in Latin, jus ad helium--and the law governing the conduct of war, called jus in hello. I will refer to the two together as the "law of war," which is the term that DoD uses in its official policies and publications. (14)

The United States is a party to the Charter of the United Nations, which generally prohibits "the threat or use of force" in Article 2(4), (15) but also recognizes the jus ad helium right of self-defense in Article 51: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member." (16) The United States is also party to a number of jus in hello treaties, such as the 1907 Hague Convention on Land Warfare and the 1949 Geneva Conventions. (17)

Most countries are parties to the United Nations Charter and the 1949 Geneva Conventions, but there can be significant differences in how States are bound by and interpret the requirements of international law. States may ratify different treaties, interpret the same treaty provisions differently, and have differing views on what customary international law requires. For example, the United Kingdom for some time has held the view that humanitarian intervention, in certain circumstances, can be an independent justification for a State to use armed force in another State's territory even absent the territorial State's consent, U.N. Security Council authorization, or collective or individual self-defense. (18) Although we recognize that there can be a compelling moral argument for military intervention in mass atrocity or genocide cases, the United States has not recognized a free-standing international law right to use force against other States solely on humanitarian grounds. (19) These differences among States are pertinent as they demonstrate that States can and do take different approaches to international law, and that consensus on certain aspects may take time to develop.

As I mentioned, Professor Charney was a world-renowned international maritime law expert (20) and a member of the U.S. delegation to the third U.N. Conference on the Law of the Sea. It took three diplomatic conferences more than three decades to achieve broad consensus on the establishment of a territorial sea out to a maximum breadth of twelve nautical miles and to recognize a 200 nautical-mile exclusive economic zone--in part because many countries, led by the United States, were firmly dedicated to the longstanding principle of freedom of the seas.

But the open-seas norm itself was once an invention. Hugo Grotius conceived of the freedom of seas, which he called by the Latin term mare liberum, or "open seas," four centuries ago. (21) At the time, Portuguese-Spanish assertions of "closed seas" (mare clausum) posed an alternative view: new seas, like new lands, were viewed as the property of those (that is, those Europeans) who discovered them. (22) Grotius advanced a new understanding of international law that allowed the Netherlands--a Lilliputian State with a Gulliverian navy--to attain astonishing global power. (23) Grotius was so influential that international lawyers...