The following is an excerpt from the published interview with John Bellinger. To see the full interview, please click on the link to download the article above or below.*
Q: As you moved from law school to private practice and the government, what most surprised you about the practice of international law?
I was most surprised in government how little understanding of the importance of international law there is even at the highest levels of our own government in all three branches—the executive, particularly in congress, and even amongst the judiciary.
As I said earlier today, in other countries international law is something that is absolutely accepted. But in the United States amongst the population, and even in our government, at best there is not an understanding of the importance of international agreements or international tribunals, and at worst there is an active hostility—a belief that international law and international institutions are somehow undermining the sovereignty of the United States. So that was certainly a challenge for me when I was Legal Adviser.
Q: If you had the opportunity to be the Legal Adviser again, what, if anything, would you do differently?
This is an issue that I look back on. Every Legal Adviser essentially has to play the hand that is dealt to him. You don’t really get to pick and choose that much because you are the lawyer to the Secretary of State and for the rest of the administration.
I ended up spending a disproportionate amount of my time on post-9/11 terrorism issues—detention in Guantanamo and various other things—which were important to discuss with our allies. But it was not always terribly enjoyable work to have to go and explain controversial policies to audiences that were very hostile toward those policies, and I sometimes wonder whether, had I spent less time on those issues, I could have spent more time picking other interesting treaty issues and traveling to other places to work out international disputes.
And it was certainly at some personal cost to myself, because I had to be the face of some of these unpopular issues. So I do look back and wonder whether I should have spent so much time on all of those issues. But I felt that it was important to explain issues that other countries didn’t understand even if I didn’t necessarily agree with our own policies.
Q: Speaking of international institutions, Joan Donoghue was sworn on September 13, 2010 as a Judge of the International Court of Justice. After there has been all this attention last summer for the selection of a new Supreme Court Justice, what was it like being on the nominating committee for an international judge?
Well this was very exciting, I kept telling members of the press that they needed to write one fewer article about my Harvard Law School classmate, Elena Kagan, of whom I am very fond and very proud, and write at least one article about the fact that we were putting the first American woman on the International Court of Justice.
This is exciting! Judge Tom Buergenthal who had served for nearly ten years resigned this summer. The appointments to the International Court of Justice are made not by governments but based on nominations made by the U.S. “National Group,” which comprises the four members of each country in the Permanent Court of Arbitration. So in our case the national group consists of Harold Koh (the Legal Adviser), me, David Andrews (former Legal Adviser to Clinton), and Steve Schwebel (who used to be the president of the International Court of Justice).
So we had to have all four of us to agree to—or at least to have a majority to support—a candidate. We had a number of well qualified candidates to consider, and all of those were people very knowledgeable about international law. We wanted to put the best candidate that we possibly could on the Court. The person we agreed on was Joan Donoghue, who had been a long standing member of the Legal Adviser’s Office. She left to go to the private sector and I had brought her back in to be my principal deputy—so I was very fond of Joan. There was a long interregnum while Harold’s confirmation was being debated when Joan was the acting Legal Adviser so she got to know the Secretary of State quite well. Harold had spent nearly a year with her and became very impressed with her. And we did not actually have, in the end, disagreement about who the candidate ought to be, but this was someone who we could agree on —an indisputably well qualified international lawyer who had served in the administrations of both parties, and whom the National Group consisting of people who had served in both governments agreed on. And this was an exciting appointment, which I wish had gotten greater public attention.
Q: What is your opinion on the ICJ’s Kosovo decision? How do you resolve the tension between self-determination and international law or do you feel there is no tension?
The Kosovo case was also very exciting. I was heavily involved in the Kosovo independence issue. Harold Koh ultimately argued the advisory opinion case before the International Court of Justice, but the Bush Administration had worked very closely with the Kosovars—first trying to hold back from unilaterally declaring independence prematurely to avoid bloodshed, but essentially to have a balanced approach to the issue.
I was surprised at how favorable the International Court of Justice decision was towards Kosovo. I fully expected that the International Court of Justice would rule that the independence was legal; I could not have imagined that they would somehow try to “put the toothpaste back in the tube.” But I was also equally confident that there would be some kind of loose language about self-determination, declarations of independence, or UN Security Council Resolution 1244 that would be unhelpful in some way. And instead it was an excellent opinion that really tracked the arguments that had been made by the United States and others. So I was surprised at how well the opinion turned out.