Is International Law Really Law?—Six Questions for Michael Scharf

[Jefferson23]

March 15, 3:51 PM, 2010

By Scott Horton


Neoconservative legal scholars and their allies argue aggressively that international law isn’t really law because the nations who make it–through treaties and conventions and by practice–don’t really treat it as law. But Michael Scharf and Paul Williams, two alumni of the Legal Adviser’s office in the State Department–known inside the Beltway as “L”–decided to take a deep look inside the process of policy decision making to test this theory. They convened the ten living legal advisers in meetings in Washington and later also gathered some of their equals from Russia, China, and the United Kingdom, and asked them to address the question directly. Did their governments in fact treat international law as law in making decisions? Working through crises including Vietnam, Watergate, and Iran-Contra, they found that international law did in fact directly shape executive decisions. I put six questions to Case Western Reserve University Law Professor Michael Scharf about his new book, Shaping Foreign Policy in Times of Crisis.

1. Jack Goldsmith and Eric Posner argued in their 2004 book, The Limits of International Law, that international law was really just policy, that modern nation states may sign a lot of treaties and agreements but a study of their conduct suggests that they don’t feel bound by them. Your book comes to just the opposite conclusion. Explain the different approaches you used and how you came to opposed results.

Michael P. ScharfGoldsmith and Posner based their conclusions on selective use of anecdotal case studies, and their identification of the motivations of the decision makers is based entirely on conjecture. They made no attempt to penetrate the black box of foreign-policy decision making. In contrast, our research was based on a series of meetings with the ten living former State Department legal advisers, from the Carter, Reagan, elder Bush, Clinton, and Bush Administrations. The legal advisers provided remarkably candid accounts of the role international law actually played in behind-the-scenes deliberations on foreign policy during the major crises that occurred during their tenure. They confirmed that senior U.S. policy makers of both parties perceived international law as real law, that international legal rules contained in treaties and customary international law are often clear enough to constrain policy preferences, that the policy makers understood that there were serious consequences to violating international law, and that they recognized that it was almost always in America’s long-term interest to comply with international law.

2. Can you cite any specific cases in which a president has been advised not to take a contemplated action because of international law and he followed that advice?
The ten former State Department Legal Advisers provided a number of examples spanning thirty years. Examples detailed in the book include President Carter’s 1979 decision not to use force against the Iranian Embassy in Washington during the hostage crisis, President Reagan’s 1985 decision not to authorize the shooting down of an Egyptian airliner carrying the terrorists responsible for the Achile Lauro cruise-ship hijacking, President Clinton’s 1994 decision to halt the supply of counter-narcotics intelligence to the Peruvian air force after it shot down a civilian aircraft, and President Bush’s decision to direct the State of Texas not to execute a Mexican national convicted of rape and murder in order to comply with an International Court of Justice order. The legal advisers said there were only four times during the past thirty years in which they were intentionally cut out of the decision-making process on issues involving the interpretation or application of international law, and they described each as a “train wreck.” The first was the mining of the Nicaragua harbor, the second was the Iran-Contra affair, the third was the kidnapping of Mexican doctor Humberto Álvarez Machaín, and the fourth was the drafting of the so-called “torture memos.”

remainder in full: http://www.harpers.org/archive/2010/03/hbc-90006695

[bemildred]

1. Arguing that law is not law unless it is enforced rigorously seems like a stupid argument to me,

We have lots of stupid laws that are enforced ONLY when it is expedient, and not otherwise, yet nobody claims those laws are not law.

[Jefferson23]

3. Well, we are speaking about the views of neoconservative legal scholars, so that

is likely why it seems like a stupid argument to you..because it is, lol.

Seems as though Scharf has compiled more than sufficient information across a wide political spectrum that indicates relying on international
law is your best bet. This guys resume is something else, and I came across this when I googled about him a little further. Consider the following and how this would be relevant to the civilian trials here, that is if we still have them.

Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?

Michael P. Scharf
Director, Frederick K. Cox International Law Center



Washington and Lee Law Review, Vol. 65, No. 1, 2008
Case Legal Studies Research Paper No. 07-27


Abstract:
Written by a consultant to the United Nation's newly established Cambodia Genocide Tribunal, "Tainted Provenance" examines one of the most important legal questions that will face the Tribunal as it begins its trials next year -- whether evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility should be considered notwithstanding the international exclusionary rule for evidence procured by torture. The issue of whether there should be exceptions to the torture evidence exclusionary rule (and how those exceptions should be crafted to avoid abuse) has significant implications beyond the international tribunal, in particular with respect to the admissibility of statements obtained by torture in cases before military commissions and federal courts in the United States and across the globe. The article analyzes and critiques three possible exceptions to the torture evidence exclusionary rule:

remainder:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1013363

[Demeter]

2. And Weren't These ALL Republican Train Wrecks?

Why Yes Indeed! The first two are Reagan's:


Iran-Contra: Reagan uninformed; subordinates indicted

Reagan’s most damaging foreign-policy event was the Iran-contra affair. Late in 1986 the administration admitted that it had been secretly selling arms to Iran, with some of the profits possibly going to the guerrillas in Nicaragua. Reagan claimed that he had not been informed of the Iran-contra link. The two policies-selling arms to Iran in apparent exchange for hostages and sending arms to Nicaragua-triggered multiple investigations.

Ignored ICJ ruling against mining Nicaraguan harbors
In Jan. 1984, mines were laid in Sandino harbor in Nicaragua, accompanied by other mine-layings, sabotage of Sandanista communications, and destruction of an arms depot. In April, it was disclosed that the CIA had conducted the action, and a Senate resolution condemned the mining 84-12.

The mines were designed primarily to damage and scare off ships rather than destroy them, but they were a clear violation of international law. The Sandanistas took their case to the International Court of Justice in the Hague (popularly known as the World Court) and won, though the administration refused in advance to recognize the court’s jurisdiction. The mining of the harbors was an example of “force against another state,” the court said; US support of the contras “amounts to an intervention of one state in he internal affairs of the other.”

By 1984 the contras had become an end in themselves. Loyalty to the contras had become the litmus test for loyalty to “Reagan’s policy” among conservatives.

http://www.ontheissues.org/Celeb/Ronald_Reagan_Foreign_Policy.htm

The Third is Poppy Bush, and the Fourth is his Idiot Son.