For the philosophical positivist, the test of whether something is true or real depends on whether it can be experienced in the real world.  This is in contradistinction to metaphysics, which is outside or above the real world, “above physics.”  For the legal positivist, the test of whether law is real is whether it actually exists and can be experienced in everyday life, whether there is a law-creating mechanism such as a king or ruler or sovereign or legislature, whether there is actual recognition, whether it can be or is “enforced,” and so forth.

One of the continual thorns in the side of international law is the argument that international law is not really law.  It is international political relations, perhaps with a legal “tint.”  But it certainly is not law in the sense that the term is ordinarily used.  For example, John Bolton, former U.S. Ambassador to the United Nations (recess appointment) during the George W. Bush administration has commented that “international law is not law.  It is a series of political and moral arrangements that stand or fall on their own merits, and anything else is simply theology or superstition masquerading as law.”  Mr. Bolton’s dislike of international law apparently follows from his belief that international law constricts the United States in its policy formulations, something that is an anathema to his view of the U.S. as exceptional.

To anyone who reads it, the book that is discussed in the In Review section of this issue of the International Judicial Monitor [Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser], comes to the rescue of international law (if it is indeed in need of rescue) by revealing the extent to which the Legal Adviser of the U.S. State Department and the lawyers who labor in the Office of the Legal Adviser (OLA) recognize and use international law on an almost daily basis in the development and practice of U.S. foreign policy.  In the pages of this book are testimonies of ten former Legal Advisers, whose accounts of their experiences give ample testament and response to the doubts of legal positivists and those extremists such as John Bolton who deny the existence of international law.  The views of the U.S. Legal Advisers are reinforced by the similar views of former legal advisers from other countries, including the United Kingdom, Russia, China, India and Ethiopia, who described their experiences consulting international law norms while advising their governments of the legality of proposed courses of action.

In responding to a legal positivist who would not be inclined to grant to international law the status of real law, one could refer to the very existence of the Office of the Legal Adviser.  It is a little known but very important agency in the U.S. State Department.  Its head, the Legal Adviser, reports directly to the Secretary of State.  Most citizens would be surprised to learn that the OLA (or “L” as it is known internally at the State Department) employs nearly 200 lawyers whose responsibilities are to advise their “clients,” the senior offices of the State Department and the agencies and sections within it, about the international legal ramifications of proposed foreign actions, plans and policies.  The question can be legitimately asked: If there is no such thing as international law, why is there an Office of Legal Adviser?  Why would the United States government go to the trouble and expense of hiring some of the best lawyers in the United States, who make up what one Legal Adviser called the best law firm in America? The State Department has an Office of Policy Planning.  If there is no such thing as international law, would it not be better and cheaper to scrap the whole OLA, and refer all questions about the desirability of foreign policy positions to the OPP? 

The U.S. government created the OLA as far back as 1931, a creation that rested on a “tradition of legal advice within the Department that dates back to 1848.”

In fact, the Office was created because so many other nations recognized and followed international law and were ready to condemn those nations that did not.  Thus the existence of the OLA stands first and foremost, by its very existence, as proof of the existence of international law.

Moreover, the ten former Legal Advisers who gave accounts of their tenure as heads of OLA recount in the book over and over again how they consulted and advised the President, the Secretary of State and other senior U.S. officials both inside and outside the State Department about international law, about the necessity of following it, and about the consequences of disobeying it.  They make very clear in their testimonies that for the times when the OLA was not consulted about a foreign policy initiative, the results were usually disastrous.  One example of this failure to consult the OLA, which had terrible consequences that could have brought down a President, was the Iran-Contra affair.  The observations were that a failure to ask for legal advice or failure to follow it usually resulted in a policy and public relations “train wreck,” with the lawyers in the OLA left with the responsibility of cleaning up the mess.

One of the criticisms of reliance on international law is that it unnecessarily “constricts” U.S. policy.  Another criticism is that international law is too vague to be useful in the real world and in planning foreign policy.  The Legal Advisers respond that international law, in its many forms, being neither specific nor rigid, has actually offered opportunities for the development of creative foreign policy and a vehicle whereby U.S. interests have been furthered rather than restricted.  An example given in the book is the creation of the International Criminal Tribunal for the Former Yugoslavia in The Hague, a largely U.S.-led effort.  This tribunal furthered U.S. interests by providing a forum for the prosecution of war criminals, which in turn served as a deterrent to other political leaders who might be inclined to follow a path similar to that chosen by leaders in Serbia.

The Office of Legal Adviser, by its very existence and by the work it has done over the past 79 years, has not only served the interests of the United States, but also the interests of the civilized world.  It stands as “proof positive” of the existence of international law and its usefulness in a world that is all too vulnerable to strife and violence.