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

By Ney, Paul C., Jr. | Vanderbilt Journal of Transnational Law, October 2019 | Go to article overview

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


Ney, Paul C., Jr., Vanderbilt Journal of Transnational Law


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. …

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