A transatlantic view of international law and lawyers: cooperation and conflict in hard times.

Author:Bethlehem, Daniel
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This lecture began at 10:45 a.m., Saturday, March 28, and was given by Daniel Bethlehem, Legal Advisor to the United Kingdom Foreign & Commonwealth Office; the discussant was Jane Stromseth of Georgetown University Law Center. *


It is a pleasure and honor for me to have been invited to give this closing lecture at the 103rd annual meeting of the American Society of International Law. I have been a member of the Society since my student days, a member of its Executive Council, and a long-time supporter of the Society and of these meetings. It is always a regret to me if, when this time of year comes around, I am unable to be in Washington. These gatherings are more than simply a meeting of a professional association. It is a gathering of friends and of those who, even if on different sides of an issue, speak a common language and are engaged in a common pursuit. I am always struck that more than 40 percent of the Society's membership is drawn from the international legal community outside of the United States, from academia, private practice, international organizations and NGOs, and from international lawyers in government service. It says something about the fraternity of international law that so many, from different backgrounds and intellectual traditions, have a compelling appreciation of the importance of engaging with their colleagues elsewhere who are focused on similar issues. I must also express my thanks to Steve Mathias, who suggested that I should give this lecture and extended the invitation, and to Jane Stromseth for agreeing to be a distinguished discussant. Jane and I last saw each other recently in the wings of a meeting in London of the Atlantic Council, a meeting from which emerged an important paper prepared by Will Taft, Elizabeth Wilmshurst, and Frances Burwell entitled, "Beyond Closing Guantanamo: Next Steps to Rebuild a Transatlantic Partnership in International Law." (1) As I will touch upon a little later, the twenty recommendations of this paper, addressed not only to the new Administration in Washington but also to European and NATO allies, are an important contribution to the task of strengthening and promoting, and I quote from their paper, "the values that are at the core of western societies." These recommendations also add impetus to endeavors that, though less visible, a number of us in Europe and the United States have been pursuing over the past few years.

Before I turn to my subject, there is one more word of thanks that I should like to give. These have been hard times, these past few years, and I expect that there will be hard times still to come. This is not an observation about politics. It is an observation about the challenges of the issues that we face. Unsurprisingly, there have been differences of views among allies. This is neither unexpected nor unhealthy, nor indeed are differences of view always unwarranted, as we come from different legal traditions and are often subject to different legal obligations and different political imperatives. One of the tasks of government legal advisers, less often recognized but nonetheless important, is to assist in the reconciliation of differences between allies, by explaining those differences, by testing them against a commonly held standard, by agreeing terms, and by facilitating ways to cooperate even where we may disagree. This is the representational side of the legal adviser's role. And, on this, I would like to express my thanks to many in the legal service of the U.S. Government over the past years with whom I have engaged closely and have found to be good interlocutors, in the interests of their country and of the law. My closest involvement has been with the legal team of the State Department. I pay tribute to them, and to my counterpart in the legal adviser' s chair, good colleagues in a shared endeavor, even where our interests or our policies diverged.

This is a good time to be in Washington. The energy and new thinking that the Obama Administration is bringing to the challenging issues that we all face is welcome. It has been a pleasure to meet some of the new people who will be influential on issues of law in the coming years--Greg Craig, Jeh Johnson at the Department of Defense, Mary DeRosa and others at the National Security Council, the new team at the Justice Department. And, it goes without saying, that I am delighted that one of the Society's own, Harold Koh, has been nominated for the position of State Department Legal Adviser. I look forward to working closely with him.

Let me turn to my topic--"transatlantic views of international law: cooperation and conflict in hard times"--and begin by saying what it is not. The description in the program suggests that I will discuss "the most fundamental legal issues in the trans-Atlantic relationship." In fact, I do not propose to do this. There are some issues on which inevitably it would not be appropriate for me to drawn on. There are others that we might perhaps come to in the discussion part of the session--or, indeed, that Jane may pursue. I have taken as my task to look with a longer lens at the transatlantic engagement with international law. And, although I shall talk about differences, the focus may perhaps be more accurately described as "a transatlantic view of international law and lawyers," insofar as I will be setting out a view from across the Atlantic rather than trying to crystallize United States and United Kingdom, or U.S. and European visions, of international law.

There has been a great deal written about transatlantic visions of international law, about shared and divergent experiences, and about the influence of different political and diplomatic traditions. Martti Koskenneimi addressed this in his Hersch Lauterpacht Memorial Lecture and subsequent volume, The Gentler Civilizer of Nations. Mark Janis wrote on The American Tradition of International Law. The opening observation in Janis's study proposed that "how we think about any aspect of the law is largely an inheritance." (2) In this, he was addressing the shifting appreciations of Blackstone, Bentham, Austin, and others on the "law of nations" and "international law" and the intellectual legacy that we all have, intuitively, about the scope and content of the law.

At one level, law is about the maintenance of stability and the predictability of human interaction. In this incarnation, it has a strong conservative streak. It is about maintaining what went before--about articulating rules to manage the movement from the past into the future. But the law is also an instrument for change, a means of imposing discontinuity between what went before and what is intended for the future. The new Administration here in Washington, with the President's Executive Order of January 22, 2009 on the closing of the Guantanamo Bay detention facility, signaled a decisive break with the past. No one with any familiarity with the issues has an expectation that the realization of this objective will be easy, but the task is both necessary and right. The other legal policy reviews set in motion by the other Executive Orders of that same date--on detention policy and interrogation policy--are also welcome. It is important that those leading these reviews are afforded the space and the time to give these issues proper reflection.

There is another aspect of the law, or, perhaps better described, of legal policy, which dominated in recent years and that requires reflection. It is about the use of the law to frame the debate and to rationalize policy. It is about the deployment of legal opinions to stifle divergent opinion and to replace consideration of what should be done by the question of what is permitted to be done, thus bypassing that element of the law that is the touchstone of the conscience of the society from which it emerges and that it in turn shapes.

Philip Zelikow, formerly counselor at the State Department, addressed this in an article in the Houston Journal of International Law in 2007 under the title "Legal Policy for a Twilight War." (3) I do not agree with all that is said in this article, but his observation that the problems associated with the approach adopted by the U.S. Government in "defending the country against attack from the al Qaeda organization, its affiliates, and its allies" after 9/11 were "greatly compounded by the way law and lawyers were used to rationalize the policy and frame the debate," should give us all pause for thought. (4)

I do not propose to delve further into these issues. There is a growing literature on this subject with contributions from Jack Goldsmith to Jane Meyer. Aspects of this issue have been the subject of inquiry by the Senate Armed Services Committee and others. I am content not to be drawn into this discussion. I will, however, touch upon the wider issue of the responsibility of lawyers a little later in my remarks.

My focus is on cooperation and conflict in hard times. As we think about cooperation and conflict in the vision and application of international law, we must also give thought to the role of international law and of legal advisers and to the question of whether international law is a shared endeavor or a battleground for conflicting ideas. Is there, or should there be, a "transatlantic" vision of international law? Is there a shared U.S-European tradition of international law that needs to be cultivated? Where are the differences in our legal experience? How do they shape our approach to the law?

Let me try to address some of these issues. I do not propose to do so by way of an...

To continue reading