INTERNATIONAL LAWYERS. Martti Koskenniemi

Transcription

1 INTERNATIONAL LAWYERS Martti Koskenniemi At the beginning of The Concept of Law H.L.A. Hart notes the striking fact that even among specialists, there is uncertainty about the meaning of the word law. This certainly extends to the meaning of international law as well. Is it rules or processes, values or facts? Cutting the Gordian knot, it may be suggested that whatever international law is, at least it is what international lawyers do and think. This is what Hart himself, too, seems to suggest: law is what legal officials recognise as such. This response has particular power in the international world. For international law has always been much more dependent on the profession that practices it than, say, contract law or administrative law that are firmly embedded in the domestic social world and thus have a certain distance from the thinking and acting of their respective specialists. Without international lawyers, there would have been no international law. From Hugo Grotius to the International Criminal Court, international law has been a project carried out by international lawyers. It has been sometimes a religious, sometimes a secular humanitarian project, a project for order, civilization, peace, security, development, rule of law and so on. Most of the time it has been a project by which European or European-origined lawyers or intellectuals have advanced their universalist ideals so as to substitute new rules and institutions for the present political or diplomatic world. But international lawyers have never been a fully homogeneous group. They have also disagreed on how the world ought to be and, thus, just what direction their project should take. Such disagreements have reflected political preferences, cultural backgrounds, as well as professional experiences and ambitions. In most periods, mainstream views and assumptions have been juxtaposed by typical challenges: right of sovereignty vs. the interests of an international community ; international security vs. cosmopolitan justice; self-determination and national autonomy vs. international rules on human rights, development and environment. Reform has proceeded through critique of earlier generations as either excessively utopian or then ignorant of the realities of an inter-sovereign world. A shared internationalist language has allowed wide divergence in local approaches. To be an international lawyer in India, Sweden or the United States has not been the same thing. In each period and location, there has been both a series of orthodox understandings of the field as well as more or less well established challenges.

2 2 1. Early Lawyers A professional vocabulary of international legality, distinct from theology, philosophy and the raison d état emerged in late-16 th and early 17 th centuries together with European expansion and the consolidation of early modern statehood, laying the ground rules for European diplomacy and warfare. But even as they were pleading international cases and writing treatises on the laws of war and diplomacy, neither the Italian Alberico Gentili nor the Dutchman Hugo Grotius saw themselves as international lawyers. Gentili was a Professor of Civil Law in Oxford, mixing the outlook of the Italian school with historical borrowings, Grotius a diplomat who regarded his religious writings as his most important work. Not before the end of the 17th and early 18 th centuries lawyers such as Samuel Pufendorf, a professor and writer of dynastic histories, as well as the Huguenot activist Jean Barbeyrac, articulated a project of law of nature and of nations (jus naturae et gentium) as the Grotian heritage to succeeding generations. This remained a wide project for a universal jurisprudence until the Swiss essayist and lawyer Emmerich de Vattel in 1758 dressed it in a coherent inter-sovereign structure of diplmacy, treaty-making and war in the sense we recognise as modern. By the end of the eighteenth century, diplomatic academies provided instruction in European treaty-making and inter-sovereign relations, conceptualised as Droit public de l Europe, and academic lawyers began to publish manuals and treaty collections for diplomats and lawyers with international clients. 2. The Profession Emerges: 1873 to the League of Nations The developments since the Congress of Vienna ( ) gave concreteness to writings on the law of nations and pushed natural law to the background. The collection of international treaties by the Göttingen academic, later diplomat G.F von Martens was widely distributed in European capitals and universities. His text-book was published in many languages through the early years of the 19 th century, laying the paradigm for historically and diplomatically oriented work of the period. But it was only in connection with the liberal ascendancy in Europe in the last third of the century that lawyers with an international interest, academics as well as practitioners, began to meet and discuss matters of domestic and international reform from a shared point of view. As a result, the first international law journal (Revue de droit international et de législation comparée) was published in 1869 and the first two professional associations (Institut de droit international, Association for the Reform and Codification of International, later International Law Association) set up in The first university chairs in international law proper,

3 3 distinguished from natural law, came about in the same period. Large international conferences such as those held in Brussels in 1874 and Berlin in 1885, as well as the Hague Peace Conferences of 1899 and 1907, prompted foreign ministries to employ lawyers such as Louis Renault in France or Sir Travers Twiss in Britain with specific competence in treaties and doctrine to give regular advise on international law matters. As the peace movement turned to advocating arbitration and pacific settlement, legal experts were increasingly found also in its ranks. During the inter-war era the League of Nations provided a principal platform for organised international legal activity. An esprit de corps developed at places of coordinated training such as The Hague Academy of International Law that began its work in Delegations at international conferences were accompanied by international lawyers and the subject was included in the curriculum of European and US law schools where it was treated sometimes as an independent subject, sometimes (as in Germany) as part of public law or (as in Italy) together with private international law. A common law approach stressed the importance of custom and the work of international tribunals such as the Permanent Court of International Justice, while civil lawyers focused on codification and relations with domestic law. New repertories of international case-law and accumulating commentary devoted to international law strengthened the sense of international lawyers as a distinct specialization and provided a platform for advancing international reform. Technically high-level analyses by scholars such as Hersch Lauterpacht in Cambridge or Georges Scelle in Paris put a critique of sovereign statehood and an emphasis on international organisations at the heart of their writings provoking thereby the standard suspicion about the profession s inherent utopianism. 3. The UN After 1945, international lawyers made a commitment to pragmatic work at the United Nations, their ambition limited by the Cold War but strengthened by decolonization that brought new countries to its compass. International lawyers saw themselves as speaking across both the East- West divide and the ever sharpening North-South confrontation by focusing on practical cooperation in such fields as economic and technological development, uses of the oceans and the outer space, protection of human rights and the environment. Oscar Schachter, a member of the UN legal staff and later Professor at the University of Columbia referred to the emergence of an invisible college of international lawyers, the humanitarian and welfarist legalism of which

4 4 appeared to cut across political divisions. But homogeneity at the United Nations betrayed important distinctions between three groups of international professionals. Lawyers engaged as foreign office legal advisers were accustomed to working with diplomats and often shared a political realist critique of the activities of international advocacy groups. Academic lawyers at European universities pursued the anti-sovereignty rhetoric of the inter-war generation while putting forward various proposals for constitutional reform of the system of intergovernmental organisations. US lawyers were divided between doing exactly the same, seeking methodological renewal from political science and enlisting themselves as supporters of US foreign policy. In the 1970 s lawyers from developing countries sought to protect the autonomy of their often fragile states while seeking a wholesale reform of the international economic system. The possibilities of legal codification and progressive development at the UN were largely conditioned by the North-South conflict. The development of more intensive human rights or economic integration regimes was directed into regional channels. 4. Diffusion In the last three decades, the profession has been marked by functional specialization and political controversy. The emergence of new institutional regimes reflecting new priorities has been accompanied by the consolidation of distinct forms of expertise in human rights law, international trade law, international environmental law, international criminal law, and so on. International law has developed through diffusion into distinct and often contradictory projects. As a result, intra-professional division no longer takes place so much by formal position (legal advisor, academic, expert, activist) as commitment to a particular specialisation. Among themselves human rights lawyers or trade lawyers tend to think and act in relatively homogeneous ways (with more or less significant minorities challenging the mainstream) while the objectives of such regimes may often be different, even contradictory. When environmental and trade preferences, for example, conflict (as they often do), lawyers are pushed into increasingly antagonistic positions. Likewise, the fight against terrorism has created a gap between human rights and security institutions that is often reflected in tensions between the corresponding legal experts. The profession s traditional commitment to the United Nations and third world development may have recently weakened as new alliances are made with private and public lawyers. The fragmentation of the international social world has led to interdisciplinary approaches within which lawyers today often articulate their contrasting sensibilities.

5 5 Bibliography: Richard Bilder, The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs, 56 American Journal of International Law (1962), ; Peter Haggenmacher, La pratique chez les fondateurs du droit international, (SFDI, Colloque de Genève, Paris, Pedone 2004), ; H.L.A. Hart, The Concept of Law (Oxford, Clarendon 1961). David Kennedy, When Renewal Repeats. Thinking against the Box, 32 New York University Journal of Int l law & Pol. (2000), ; Martti Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International law (Cambridge University press, 2001); Martti Koskenniemi, Between Commitment and Cynicism: Outline for a Theory of International Law as Practice, in: Collection of Essays by Legal Advisers of States, Legal Adviser of International Organizations and Practitioners in the Field of International Law, (United Nations, NY, 1999), ; H.C.L. Merillat (ed.), Legal Advisers and Foreign Affairs (American Society of International Law, 1964); Guillaume Sacriste & Antoine Vauchez, Les bons offices droit international : la constitutin d unme autorité non politique dans le concdert diplomatique des années 1920, 26 Critique internationale(2005), Oscar Schachter, The Invisible College of International Lawyers, 72 Northwestern Univ. L. Rev. (1977), 217