Disciplining the discipline: roles and responsibilities of international lawyers.

Author:Wilmshurst, Elizabeth
Position:Includes discussion - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

This plenary panel was convened at 11:15 a.m., Saturday, April 1, by the Annual Meeting Co-Chairs, Hilary Charlesworth of Australian National University, and Donald Francis Donovan of Debevoise & Plimpton LLP, who introduced the panelists: Elisa Massimo of Human Rights First; Nicolas Michel of the United Nations; Naz Modirzadeh of the American University in Cairo; and Elizabeth Wilmshurst of the Royal Institute of International Affairs. *

REMARKS BY ELIZABETH WILMSHURST ([dagger])

Ms. Wilmshurst drew on her experience as a government adviser at the British Foreign Office. She stated that she shared the views of those who believe that while government legal advisers have a duty to assist their client to implement its policies, their role is not merely to provide a legal case for anything that the government wants to do, to provide in effect a legal fig leaf their role should include seeking to persuade the department to give international law proper weight in its policies and strategies and to comply with international law.

Ms. Wilmshurst explained that this role seems to require that a government lawyer will hold certain views about international law (and not hold others). In particular such lawyers: will believe in the case for international law (and therefore not, for example, that international law is simply an instrument for legitimizing oppression, inequalities and violence). will accept that international law and institutions can influence states' actions and that states are capable of acting in accordance with international law (rather than those theories of international law or international relations that allege the substantial irrelevance of international law, its lack of normative pull, etc.).

-- will have somewhat of a rules-oriented approach (governments are not going to accept having their actions constrained or influenced other than by reference to fairly clear rules).

-- will operate by and large within the traditional categories, including traditional models of the state and sovereignty (while accepting extensions and permeabilities).

-- will distinguish between policy and law, and in advice to the government will not dress up as law what is really advocacy.

She went on to explain that in her experience it is thus that government lawyers can assist with the "achievement of a just world under law," that is, by seeking to ensure that the principal actors in the arena--states--operate under law.

She clarified, however, that she was not saying that a legal adviser could undertake a mechanistic application of clear rules to situations. But in reaching a view in difficult cases, the legal adviser should reflect a responsibility to the international legal system as a whole, if that system is to be sustainable: this is perhaps a particular function of the international law adviser, and results in part from the horizontal nature of the system (without legislature and with limited recourse to judicial settlement), and in part from the open texture of many of its rules. Such an approach should also help to lead to common interpretations of the law across the world--the universality of international law is a great shared benefit of a divided world.

Ms. Wilmshurst concluded, however, by noting that there will be possibilities of developing or changing the law; there will be gaps in the law, or conflicts between different areas of law, or problems of interpretation that cannot be solved by reference to standard interpretative techniques. These provide the need and the opportunity to call in aid principles of some kind, whether acknowledged or not. But these opportunities do not arise every day for a government lawyer. In such cases there will be need for a policy input, but the legal adviser should also appeal to fundamental values of the international system which include order, justice, and the welfare of the individual.

* Panelists' remarks were reported by Shane Spelliscy. Debevoise & Plimpton LLP.

([dagger]) Senior Fellow, Chatham House.

REMARKS BY NICHOLAS MICHEL *

Mr. Michel began his remarks by emphasizing the important distinction between advising and deciding. Yet advisers must be aware that advising takes place in a decision-making process, and, at least with respect to the area of international law, a politically loaded one as well. Thus it is important for advisers to:

-- understand the context in which the decisions, upon which they are being asked to advise, are being made;

-- be associated with the decision-making process from the beginning;

-- make sure that the legal dimensions are understood and that the rules are considered and respected;

-- understand that their advice may not be taken, but that this does not mean that an adviser should simply change that advice; and

-- understand that he or she should hold firm in his or her opinions.

Mr. Michel concluded his remarks by emphasizing that the adviser must take responsibility for the advice he or she gives, and likewise, the decisionmaker must take responsibility for the decision that is made.

* Under-Secretary-General for Legal Affairs, United Nations.

REMARKS BY ELISA MASSIMO ([dagger])

Ms. Massimo focused her comments on how the events of September 11, 2001, and the U.S. response thereto had strained the U.S. commitment to international law. She was struck by the increasing importance of the role of lawyers, as opposed to the role of law itself. Specifically, it has been lawyers who have paved the path for the United States to act contrary to international law.

Since September 11, lawyers for the U.S. government have focused on finding law to fit and support the prerogative of...

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