Plenary: legal advisers' roundtable.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion

The panel was convened at 2:45 p.m., Friday, April 11, by its moderator, Larry D. Johnson of the United Nations, who introduced the panelists: Todd Buchwald of the U.S. Department of State; Maria del Lujan Flores of the Permanent Mission of Uruguay to the Organization of American States; Allieu Ibrahim Kanu of the Permanent Mission of Sierra Leone to the United Nations; Edward Kwakwa of the World Intellectual Property Organization; Juan Antonio Yanez-Barnuevo of the Permanent Mission of Spain to the United Nations; and Liu Zhenmin of the Permanent Mission of China to the United Nations. *


Welcome to the Legal Advisers' Roundtable. I am very honored to be moderating a panel with such distinguished members. Let me first indicate that everything we say here is in our personal capacity and not official. Rather than have formal presentations, I will be posing a number of questions to the panelists and will be assigning who will be answering them. After that, we will open it up for questions and answers. Let me briefly introduce the panelists. Todd Buchwald is the Assistant Legal Adviser for United Nations Affairs for the U.S. State Department and has been in that position since 2004. He previously served as the State Department's Assistant Legal Adviser for European and Canadian Affairs. Before joining State, he was an Associate at Wilmer, Cutler, and Picketing, and is a graduate of Cornell and Yale Law School. We also have Ambassador Maria del Lujan Flores, Doctor of Law and Social Sciences and Diplomacy. She is presently the Permanent Representative of Uruguay to the Organization of American States (OAS) here in Washington. She has been teaching public international law and human rights at the University of Uruguay and was the Legal Adviser for the Ministry of Foreign Affairs. Ambassador Allieu Ibrahim Kanu is currently Ambassador and Deputy Permanent Representative of Sierra Leone to the United Nations and has been in that capacity for ten years. He has led negotiations with the United Nations on the establishment of the Sierra Leone Special Court and is also very active in the African Group and the Economic Community of West African States (ECOW AS) meetings in New York. We also have my colleague, Edward Kwakwa, working in an intergovernmental organization. He is the legal counsel of WIPO, the World Intellectual Property Organization. Prior to that, he was in the World Trade Organization and the United Nations High Commissioner for Refugees (UNHCR). He also practiced law here in D.C. at O'Melveny & Myers LLP and has served on the ASIL Executive Council for a number of years. From China, we have Ambassador Liu Zhenmin who has received his LL.M. from the Law School of Peking University. He began as a legal officer in the Department of Treaty and Law and the Ministry of Foreign Affairs in Beijing and then moved between various postings between the legal office in Beijing and postings in Geneva and other locations. He was promoted to Director General of the Department of Treaty and Law in 2003. Since 2006, he has been the Ambassador and Deputy Permanent Representative of China to the United Nations and has been very active in Security Council and Legal affairs. Finally, we have Juan Antonio Yanez-Barnuevo from Spain, who has had a long and distinguished career in international legal matters. In fact, he attended the Vienna Conference on the Law of Treaties and, since then, many codification conferences. He was Legal Adviser of his foreign ministry for several years, the Representative of Spain on the Security Council in the nineties when the two ad hoc criminal tribunals were established, and was very active in the establishment of the International Criminal Court (ICC).

I would like to begin by posing some questions, divided into three categories: procedural, thematic, and topical. The first will be to Ambassadors Yanez-Barnuevo and Kanu: what should a legal adviser do if a policymaker perceives that an international law is a problem or obstacle in carrying out the desired policy, and attempts to overrule him/her?

* The panel would like to thank Michelle Keith who served as reporter for this panel.

([dagger]) Assistant Secretary General for Legal Affairs at the United Nations.


Thank you, Larry. Before I answer your question, I cannot resist reminding everybody of an anecdote that I heard from the late Oscar Schachter, recounting how he joined the United Nations right after World War II. He was very young, right out of law school and got a job working for refugees under a very well known American politician. On the first day of work, this politician said to him, "Tell me, young man, are you a wet lawyer or a dry lawyer"? He was flabbergasted and did not know how to answer. His boss then told him, "It is very clear. I need beside me at least one wet lawyer and one dry lawyer. A wet lawyer is a person who tells me that I can do what I want to do. And the dry lawyer is the person who tells me I cannot do what I do not want to do." This is the dilemma of every in-house lawyer, not only legal advisers at foreign ministries or international organizations. You have to know from day one that your boss would like you to be responsive to his/her needs and desires. This is a problem for all of us, but especially for those who are at the same time, as I am, a diplomat as well as a legal adviser.

Let me answer you as quickly as I can. I think that you have to distinguish between internal deliberations, be it oral or written; in those, you have to be as sincere, direct, straight forward as possible in explaining what the law is according to your best judgment. You have to be able to speak truth to power. On the other hand, if you have to go outside to an international body, a court of law, or a parliamentary committee, of course you are acting under instructions. You cannot just remain a free agent and say what you really think. You can try to accommodate and couch your opinion as best as you can, but you always have to serve the general policy purpose of your country, government, or international organization. If there is a conflict, it depends whether it is a minor point, a thing that can be interpreted one way or the other; but if it is a real important or fundamental point having to do with constitutional law of your country or the United Nations or the European Union, then you have to be able to stand by your opinion. And if need be, you have to be prepared to be sacked or resign.

* Permanent Representative, Permanent Mission of Spain to the United Nations.


I am fortunate to be responsible for legal matters in my mission. Sierra Leone went through a civil war that lasted for nearly eleven years and as a result, there was a brain drain and most of our international lawyers left the shores of Sierra Leone and came abroad. Therefore, when I came to the United Nations, I was wearing two hats. I was Ambassador for Legal Affairs at the United Nations and was also Principal Legal Adviser to the Government of Sierra Leone on international law matters. My government thus consulted me on matters of international law and invariably, the advice that I offered was not in conflict with the thinking of the government. So I did not have the unfortunate situation where there is a conflict between my advice and the way the policymakers in Sierra Leone perceived my advice.

I have not heard of any instance whereby a legal adviser's advice is in conflict with the government and I do not think many African lawyers, who practice law as legal advisers or advisers for ministries have resigned due to this. However, for me as somebody who has trained in the West and who practiced law in England for fifteen years, if I proffer advice, especially on a situation where I believe the government's action will be at variance with international law, and my advice is not followed, I would follow the example of Sir Michael Wood and Elizabeth Wilmshurst in England. When they gave their legal opinions on the issue of whether the United Kingdom should invade Iraq or not and it was not followed, they resigned. As somebody in that tradition, I would follow their example and definitely resign, although it would be unique for an African legal adviser to adopt such a position.

([dagger]) Ambassador and Deputy Permanent Representative, Permanent Mission of Sierra Leone to the United Nations.


Regarding the question, in the first place, I would advise to stop any action related to any type of policies which might collide with international law. In the case of small countries like mine, Uruguay, law comes before any other considerations since it constitutes the basis on which a nation is founded. It also represents the only and best warranty in the field of international relations. In the case that a policymaker wants to impose such an action, I would try to state my position as clearly as possible, but if this policy does not really attempt to follow international law, I would consider the legal basis of each element of the policy and weigh which could be carded on.


Now, question number two. How do you convince policymakers to ask for legal advice or come to a legal adviser first, before they set policy? Some of us have had the experience where the technical people did not want anything to do with the lawyers. How difficult in practice is it to make sure that in your organization, "preventative lawyering" is done in a policy-driven environment?

* Permanent Representative, Permanent Mission of Uruguay to the Organization of American States.


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