When the United States faces an international crisis, can its international law obligations be set aside if the executive branch so chooses? The answer would depend on how one answers another question: Is International law really law?
Co-authors Michael P. Scharf, a professor at Case Western Reserve University School of Law, and Paul R. Williams, a law professor at American University, Washington D.C., take a close look at this controversial matter in their important new book, "Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser" (Cambridge University Press).
Monday at Harper's Magazine online, Scharf answered crucial questions relating to issues the book brings to light. (Read Michael Scharf's responses in Harper's Magazine Q&A.
Scharf and Williams have appeared recently on C-SPAN Book TV to discuss their findings from meetings the authors held with the ten lawyers who headed the Department of State Office of Legal Adviser, from the Carter administration to that of George W. Bush. A C-SPAN Book TV rebroadcast is scheduled for 11 p.m. March 21 and is available for viewing anytime online.
Based on insider accounts of the decision-making process during thirty major crises, the book explores whether international law is real law or just a political arrangement that policymakers may choose to ignore.
With a foreword by the Obama administration's State Department Legal Adviser, Harold Koh, the book includes chapters focusing on the experiences of each legal adviser, as well as discussions with foreign Legal Advisers from the UK, Russia, China, Ethiopia, and India for comparative perspective. The book ends with an in-depth case study of the drafting of the White House Torture Memos, in which the authors write that a cabal of government lawyers intentionally cut the State Department Legal Adviser out of the process in order to advocate policies and tactics that were in violation of international law.
Scharf and Williams each has served in the Office of Legal Adviser within the State Department, and both work closely with the Public International Law & Policy Group (PILPG) as co-founders of the non-profit group, which provides pro bono legal assistance to states and governments involved in peace negotiations, post-conflict constitution drafting, and war crimes prosecutions. In 2005, the PILPG was nominated for the Nobel Peace Prize for help in the prosecution of major war criminals.
Scharf is the John Deaver Drinko-Baker & Hostetler Professor of Law and director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law.
Williams holds the Rebecca I. Grazier Professorship in Law and International Relations at American University and teaches at the School of International Service and the Washington College of Law.
More information about Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser is available online.
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