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Triggs, Gillian --- "The Public International Lawyer and the Practice of International Law" [2005] AUYrBkIntLaw 13; (2005) 24 Australian Year Book of International Law 201

The Public International Lawyer and the Practice of International Law

Gillian Triggs[∗]

Nearly 40 years ago, Oscar Schachter wrote of the ‘invisible college of international lawyers’.[1] He described a professional community of lawyers internationally engaged in a common intellectual enterprise that enabled a penetration of ideas from the non-governmental to the official. Were he to observe the work of international lawyers today, he might be both delighted by their contemporary public visibility and apparent influence, and not a little disquieted by their multiple roles as objective scientist, government adviser and professional lobbyist. Over the last decade or so there has been a noticeable growth in the public role of international lawyers as law reformers, members of government delegations to treaty-making conferences, counsel before the International Tribunal for the Law of the Sea, judges, advocates, prosecutors and legal researchers for the ad hoc war crimes tribunals, international commercial arbitrators, legal advisers to corporations and government and media commentators. The invisible college has thus become in the twenty-first century a highly visible public college before a body politic that has acquired a taste for the rule of law in the conduct of international relations.

Professor Ivan Shearer has been the very model of the contemporary international lawyer. As an academic, he contributed scholarly writings on the law of extradition and maritime law. As Dean of the Faculty of Law at the University of New South Wales, and then Challis Professor of International Law at the University of Sydney, he supported the Jessup International Law Moot and the work of the International Law Association and the Australian and New Zealand Society of International Law. As an international legal practitioner, Professor Shearer has advised Australian governments of the day in international law and continental shelf issues. Professor Shearer was appointed a judge ad hoc of the International Tribunal for the Law of the Sea and is currently a member of the United Nations Human Rights Committee. In combining the traditional roles of analysing doctrine with practical advisory work, Professor Shearer has been a leader in international law in Australia, the Asian region and in international organisations and tribunals.

This essay in Professor Shearer’s honour seeks to explore the role of the public international lawyer in contemporary international law and practice as a ‘highly qualified publicist’, law reformer, legal practitioner and public commentator.

The Public International Lawyer as
‘Highly Qualified Publicist’

No area of law has owed so much to the writings of so few jurists as international law. In the absence of decisions of international tribunals, and because states have been reluctant to submit their disputes to the Permanent Court of International Justice (PCIJ) or the International Court of Justice (ICJ), the body of international legal doctrine has largely depended upon the articulation of jurisprudence in texts and journal articles. Juristic commentators have collected and assessed evidence of state practice and dissected in minute detail those relatively few decisions that emerged from international arbitration or the PCIJ in the nineteenth and early twentieth centuries.

International law is unique as it has a specific reference to the ‘teachings of the most highly qualified publicists’[2] as a subsidiary means for the determination of relevant rules. States have relied heavily upon the works of Grotius, Pufendorf, Westlake, Hyde and Vattel. Indeed, as Parry observed:

[T]he books and opinions of the nineteenth century seem often to resemble catalogues of the praises of famous men. “Hear also what Hall sayeth. Hear the comfortable words of Oppenheim” is an incantation which persists even into this century.[3]

The Court of Admiralty in The Renard was sceptical of this phenomenon as early as 1778 when it observed:

[T]here was something ridiculous in the decisive way each lawyer, as quoted, had given his opinion. Grotius might as well have laid down, for a rule, twelve hours, as twenty-four; or forty-eight as twelve. A pedantic man in his closet dictates the law of nations; everybody quotes, and nobody minds him. The usage is plainly as arbitrary as it is uncertain; and who shall decide, when doctors disagree? Bynkershoek, as is natural to every writer or speaker who comes after another, is delighted to contradict Grotius …[4]

Parry wisely predicted that, ‘as the body of judicial decisions increases, the authority of the commentator is diminished’.[5] Even he might have been surprised by the reduced role of the juristic commentator in the eyes of the ICJ. In the Congo v Belgium Case,[6] Judges Higgins, Kooijmans and Buergenthal embarked on a thorough scholarly analysis of the question whether a state is entitled to exercise jurisdiction over persons having no connection with the forum state when the accused is not present in that state.[7] All the sources identified in article 38 (1)(c) were assessed in their Joint Separate Opinion. On arriving at the contribution of writers to the question, the Joint Separate Opinion dismissed the literature that asserts that ‘treaties on crimes and offences evidence universality as a ground for the exercise of jurisdiction recognised in international law<’ as ‘interesting’ but ‘doubtful’.[8] The Opinion noted that:

If a dispassionate analysis of State practice and Court decisions suggests that no such jurisdiction is presently being exercised, the writings of eminent jurists are much more mixed. The large literature contains vigorous exchanges of views (which have been studied by the Court) suggesting profound differences of opinion. But these writings, important and stimulating as they may be, cannot of themselves and without reference to the other sources of international law, evidence the existence of a jurisdictional norm. The assertion that certain treaties and court decisions rely on universal jurisdiction, which in fact they do not, does not evidence an international practice recognised as custom. And the policy arguments advanced in some of the writings can certainly suggest why a practice or a court decision should be regarded as desirable, or indeed lawful; but contrary arguments are advanced too, and in any event these also cannot serve to substantiate an international practice where virtually none exists.[9]

This passage suggests a ‘rap over the knuckles’ for international lawyers who make assertions about the status of international law where the evidence is equivocal or scant, bringing to mind Arbitrator Huber’s view in the Spanish Zones of Morocco Claims Case that:

[T]he great majority of writers show a very marked tendency to restrict the responsibility of States. Their doctrines, however, are frequently politically inspired and represent a natural reaction against unjustified intervention in the affairs of certain nations.[10]

While the point is well made that care needs to be taken to distinguish the law from evolving norms and policy, in principle ‘vigorous exchanges’ about international law provide fruitful debate where legal norms are crystallising rapidly in response to global problems. Undeniably, the vast range of contemporary publications on international law both reflects the growth and visibility of the ‘college’ of international lawyers and encourages further academic writings. The risks created are fragmentation of the doctrine of international law and a less authoritative role for juristic opinion before international tribunals.[11] The paradox is that the more international legal opinion is published, the less influence it appears to have in contemporary decision-making.

The ICJ in the Congo v Belgium Case relied overwhelmingly on its earlier opinions and decisions and on state practice. It was unusual, however, that in its Advisory Opinion in the Israeli Wall Case, the Court did not refer to a single juristic writer. Rather, it relied to a noticeable degree upon the report of the United Nations (UN) Secretary-General and upon an accompanying dossier comprising detailed information on the route of the wall and on the humanitarian and socio-economic impact on the people of Palestine.[12] The dossier was based on the on-site visits by Special Rapporteurs and competent organs of the UN. In concluding that it had sufficient information and evidence to enable it to give the Advisory Opinion as requested by the UN General Assembly, the Court also examined the written statements of other participants, the practice of the UN Human Rights Committee, the Committee on Economic and Social Rights and the Security Council, and the reports of Special Rapporteurs.[13] As the law was relatively clear, the Court may have seen no need to employ juristic writings, though on one occasion the Court referred to the International Law Commission’s (ILC) articles on state responsibility.[14]

This is not to suggest that the views of juristic writers are ignored in recent determinations of the ICJ. Authors were sometimes used in support of propositions accepted by the Court in the Congo v Belgium Case [15] and, on one occasion, the views of the editors of Oppenheim’s International Law are specifically quoted and agreed with.[16] Behind the scenes at The Hague, international law researchers are reading and assessing the value of juristic writings, though they may not be cited in the final decision of the court. Legal opinions of the Attorneys-General, national courts and international tribunals continue to make reference both to the contemporary and the classical publicists. Juristic writers continue to influence the formation of international law by distilling the evidence, subjecting it to critical analysis and articulating the principles.[17] There will always be, as Wolfke recognised, a ‘creative factor’ in such a role: just, indeed, as there is in any judicial assessment of the law. Jurists have, for example, been influential in articulating the concept of the right to development in international law since the 1970s.

In considering the contemporary role of juristic writers in international law, the revolutionary impact of the internet has been a critical factor. Until recently, international lawyers have relied for legal information upon their departments of foreign affairs, upon the classical texts, collections of materials and journal articles and upon the painfully slow arrivals in their law libraries of treaties and decisions. Over the last decade, many of the primary and secondary sources and evidences of international law have become available to all through the ‘web’. The proceedings of the ICJ in the Israeli Wall Case, for example, could be both watched and heard instantaneously through the video ‘streaming’ technology by everyone with access to a computer.[18] The written text of the Advisory Opinion was available to download and print within hours. Today, international lawyers in government and business, in universities and in non-government organisations are no longer dependent upon commentaries distilling the law when they have immediate access to these sources. An added benefit of global access to legal sources may be to moderate any tendency of international lawyers to write from a nationalist point of view. Equal access to resources should expose any myopic view of international law to the challenge of contrary objective evidence.[19] It remains a pity, however, that the worldwide web continues to reflect the Northern European and American dominance of international law. The Development of the Internet for Asian Law (DIAL) project in Asia, among other such initiatives on the internet, may, in time, redress the imbalance in access to international state practice.[20]

In summary, primary sources, particularly multilateral treaties, the practice of states and of international organisations, and judicial precedents provide the dominant evidence of international law for contemporary tribunals. Juristic writings have a diminished influence, although they will continue to be examined and taken into account where they are well-founded in the evidence. Where juristic commentary provides critical analysis and the exploration of new ideas, writers will make a significant contribution in advisory opinions, law reform and in supporting the work of international organisations, the UN committee system and the ILC.

Public International Lawyers and
International Law Reform

If the ‘the praises of famous men’ are no longer quite so influential in today’s international tribunals, jurists have flourished through their contributions to the work of bodies such as the Sixth Committee of the UN General Assembly and the ILC, as well as to professional bodies such as the International Law Association, the Institut de Droit International, and regional and national associations of international lawyers. Above all, the UN’s ILC has both codified and stimulated the progressive development of international law over the last nearly 60 years. In so doing, the views of the ILC fall within article 38(1) as a subsidiary means of determination of international law. The contemporary role of the ILC has been quickened by the ‘breakthrough’ in adopting the articles on state responsibility[21] and its work on the International Criminal Court (ICC),[22] and draft articles on State Immunity from Jurisdiction.[23] It has been a unique feature of the work of the ILC on state responsibility that, over the last few years, international tribunals have cited the draft articles with approval, so that these decisions then provide further support for the final form of the articles themselves.[24] The so-called ‘feedback loop’ consolidates the function of the ILC in collecting and commenting upon the evidence of state practice and in seeking consensus on the progressive development of the law.[25] The Harvard Research Drafts[26] have similarly provided reliable evidence of international law that is used as a resource by the ICJ and by arbitral tribunals as in the Rainbow Warrior arbitration.[27]

International lawyers have made a particular contribution to the development of legal regimes in international law where none existed, such as outer space, law of the sea, Antarctica and the environment. International jurists, through the Institut de Droit International and the International Law Association, have assisted in drafting principles and creating institutional structures that have provided the foundations for the regulation of areas beyond the limits of national jurisdiction. International law jurists also make a contribution to the development of the law at the national sphere through submissions to public enquiries and law reform commissions. They are frequently asked to undertake references on evolving practices in international law and to advise governments on the current status of the law and on reform of the law. An example lies in the role of international lawyers in drafting domestic legislation adopting the restrictive doctrine of sovereign immunity.[28] The United States of America, United Kingdom, Canada, Australia and New Zealand have appointed law reform commissioners from academe and sought the views of international jurists in drafting their national legislation.

International lawyers are often invited to join national delegations to major international conferences to draft multilateral treaties. The Rome Statute for the ICC, the Framework Convention on Climate Change[29] and the Kyoto Protocol[30] all owe much to the contributions of specialist international lawyers. International legal academics have also been included in delegations to the meetings of the Antarctic Consultative Parties on a Minerals Convention, and subsequently for negotiation of the Madrid Protocol.[31] Their role is advisory only, but can nonetheless be useful on technical issues of international law. Indeed, while government officials have few resources and less time to record diplomatic negotiations for the public record, academic members of such delegations will, if possible and within the limits of confidentiality, publish drafting histories that may prove valuable for future scholarship.[32]

Public International Lawyers in the
Practice of International Law

While the role of jurists as repositories of the doctrine of international law may have declined, their contribution to the practice of international law has significantly increased in other fields. Thirty years ago students with an interest in international law had limited career options. Firms of solicitors or attorneys not only had no places for international lawyers, but also interviewing partners were sceptical about any aspiring young lawyer who expressed an interest in public international law. Only infrequently did opportunities for international lawyers arise at the bar, as few international law cases were relevant under domestic law and a brief to appear before the PCIJ or the ICJ at The Hague was highly improbable. For private international lawyers, by contrast, there were occasional appointments to appear before international arbitral tribunals. Government departments concerned with the conduct of foreign affairs would take lawyers within their annual quotas and a very few might find their way to the international legal division, at least for a period. Most young recruits rapidly found themselves engaged in the day-to-day practice of diplomacy. Some students embarked on academic careers, taking further masters degrees and PhDs in international law, often at universities overseas, returning to their national universities to research and write in the field. In short, international law was for the specialist few.

Today, public international lawyers are in unprecedented demand as solicitors and attorneys, barristers before national and international tribunals, government representatives in international institutions, members of non-governmental organisations and policy and legal advisers to government departments and trans-national corporations. Some barristers’ chambers are now specialising in human rights cases, such as Matrix Chambers in the United Kingdom. Other barristers’ chambers are developing specialist skills in territorial and maritime delimitation disputes. The international legal departments of the United States Department of State, the United Kingdom’s Foreign and Commonwealth Office and Australia’s Department of Foreign Affairs and Trade, along with departments of Attorneys-Generals throughout the world, have significantly increased their legal staff to respond to new global issues. International lawyers now accompany military forces on overseas missions and are on the decks of ships enforcing fisheries regulations in the exclusive economic zone or refugee policy in coastal waters. Several developments in international and domestic law may explain this change.

Growth in substantive international law

There has been an explosion in the substantive development of international law since the 1970s, largely through multilateral treaties dealing with international trade, the environment, human rights, arms control and law of the sea. As an inter-dependent global community has developed in the last decades of the twentieth century, the UN has sponsored diplomatic conferences to negotiate international ‘legislation’ to respond to transnational problems such as climate change, the transport of hazardous goods, drug trafficking, slave trading and terrorism. Private lawyers are now developing practices in new substantive areas of international law such as greenhouse gas emissions trading, management of straddling fish stocks, international trade in endangered species, corporate responsibility for international environmental pollution, violations of human rights laws, refugees, trans-national sexual offences and international criminal laws. International lawyers are finding employment in government departments, corporations and private enterprise to advise on these new laws, to ensure that preventive practices are in place, and to litigate disputes.

Creation of new international organisations

In addition to the growth in the content of international law itself, multilateral treaties have created many new international institutions. The World Trade Organisation (WTO), created on the signing of the Marrakesh Agreement in 1994,[33] now has 147 members, each of which is subject to the same legal obligations under the Covered Agreements. Other major global and regional institutions include the World Bank, Asian Development Bank, International Monetary Fund (IMF), Organisation of Economic Co-operation and Development (OECD), European Union, Antarctic Treaty regime, International Seabed Authority and the International Maritime Organisation. The work of the UN is carried out not only by its Specialised Agencies, but also though an extensive committee system that is increasingly burdened by administrative responsibilities. All of these bodies are looking to international lawyers to provide legal advice and drafting skills.

Growing confidence in the International Court of Justice

Over the last 20 years states have shown a greater willingness to take their disputes to the ICJ, with the consequence that international lawyers from all over the world are being engaged as counsel or advocates, expert consultants and witnesses to take part in hearings at The Hague. In the first 25 years of the Court there were 38 contentious cases submitted to the Court and 15 Advisory Opinions. Since 1980, there have been 58 contentious applications and nine Advisory Opinions. The Court currently has nine matters being heard or under deliberation and 20 cases pending, ranging from the legality of the use of force by members of North Atlantic Treaty Organization (NATO) against Serbia and Montenegro, to disputes over territorial claims and maritime boundaries. Most notable additions to the docket of the Court are applications by developing states from Africa and Latin America, suggesting a growing confidence in the procedures of the Court.[34] So too do the most recent applications to the Court from states in Asia. After the chilling effect of the Temple of Preah Vihear Case[35] in 1962, no state in the Asia-Pacific region has resorted to the Court until recently. While too much should not be deduced from the recent agreements to submit sovereignty disputes to the ICJ by Indonesia and Malaysia regarding the islands of Ligitan and Sipadan, and by Malaysia and Singapore regarding Pedra Branca/Pulau Batu Putech, Middle Rocks and South Ledge, there appears to be a growing recognition in South-East Asia that long-standing and rankling disputes can be resolved efficiently and, indeed equitably, through the application by the ICJ of international law. [36] Such developments bode well for the practice of international law and the engagement of international lawyers.

A recent illustration of the extent to which international lawyers play an enlarged role in the practice of the Court is the Advisory Opinion in the Israeli Wall Case.[37] Written statements to the Court were filed by 49 states and organisations, entailing a global exercise in international legal research and analysis. Oral statements were made to the Court by Palestine, South Africa, Algeria, Saudi Arabia, Bangladesh, Belize, Cuba, Indonesia, Jordan, Madagascar, Malaysia, Senegal and Sudan, and by the League of Arab States and the Organisation of the Islamic Conference. While oral arguments were generally made by Ambassadors and Ministers of Foreign Affairs, several presentations were also contributed by professors of law from Cambridge, Geneva, Oxford, Brussels, Algeria and Paris. Three professors of international law from Oxford, Cambridge and Brussels were part of the team appearing on behalf of Palestine and an editor of Oppenheim’s International Law appeared as Senior Legal Adviser on behalf of Jordan. While professors of international law have long contributed to the work of international tribunals (Professor Dupuy in the Texaco Case[38] comes immediately to mind) the numbers now regularly involved as judges, counsel, advocates, experts and legal advisers have significantly increased.

Creation of new procedures for dispute resolution

Several new courts and tribunals have been established over the last ten years that enable the resolution of disputes in defined areas of the law by judges and arbitrators with specialist legal knowledge and expertise. Recourse to many of these tribunals is both binding and compulsory, overcoming the traditional difficulties of bringing a dispute to the ICJ. Tribunals set up to deal with international human rights include the ad hoc International Criminal Tribunals for Rwanda and the Former Yugoslavia, the ICC, the Special Court for Sierra Leone, the European Court of Human Rights and the Inter-American Court of Human Rights. Several options are now available for the resolution of international commercial disputes such as the World Bank’s International Centre for the Settlement of Investment Disputes. The Permanent Court of Arbitration is undergoing a revival of interest in its mechanisms,[39] and the United States-Iran Claims Tribunal has made a significant contribution to the law of state responsibility over the last 23 years.[40] The International Tribunal for the Law of the Sea, established in 1996, has considered 12 cases thus far.[41] As it has a mandatory jurisdiction over matters calling for the prompt release of vessels and crews, the Tribunal has been able to respond speedily, developing the jurisprudence of the 1982 UN Convention on the Law of the Sea.[42] The quasi-judicial bodies established by the WTO’s Dispute Settlement Understanding[43] provide a compulsory and binding means by which trade measures may be challenged before panels and appealed to the standing Appellate Body. Thus far the WTO disputes processes have attracted over 300 cases since 1996, more than a third of them by or against developing states.[44]

The creation of these new procedures for disputes resolution has obvious consequences for the legal profession generally, and international lawyers in particular. The major global and regional law firms are now establishing international law practice groups to develop advisory and litigation practices, not only in transnational private commercial matters, but also in public international law issues arising from environmental law, climate change and carbon trading, offshore resource exploitation, overlapping continental shelf claims, management of the exclusive economic zone, territorial sovereignty claims, refugee law and international trade and WTO-related disputes.

If trade wars are to be a mark of the twenty-first century, international lawyers will play a pivotal role. Most dramatic of the developments in dispute resolution has been the growth in the role of international lawyers under the WTO procedures. Private lawyers are now able to take part in proceedings and governments require their nationals to provide legal research in support of state-to-state complaints. Indeed, there is a growing concern that the WTO disputes process has ‘judicialised’ international trade to the detriment of negotiated and consensual trade agreements. Undeniably, the rule of law approach of the Disputes Settlement Understanding and strict reliance upon ‘objective’ scientific standards, particularly under the Sanitary and Phytosanitary Agreement (SPS Agreement),[45] have created opportunities for international trade lawyers in private practice. International trade disputes are no longer exclusively within the purview of the state. Private law firms are building a competence in the rapidly developing jurisprudence of the WTO rules. A recent example of the involvement of domestic lawyers is the Japan Apples Case in which the Appellate Body found Japan’s trade measures controlling the import of apples from the United States to be inconsistent with article 2.2 of the SPS Agreement.[46] The findings have prompted intense anxiety for primary producers throughout the world who are seeking legal advice from government and private law firms to protect their products from perceived environmental threats.

The new tribunals have also generated work for barristers practising in international law. While the demand for advocates and advisory counsel before the ICJ has grown over the last 20 years, so too have opportunities to appear before the new tribunals. Not surprisingly, barristers and legal counsel have demonstrated agility in appearing both under the familiar procedures of the ICJ and under the recently developed procedures of the new tribunals. It is notable, for example, that many of the counsel who are representing Malaysia and Singapore in the Land Reclamation Case,[47] also frequently appear before or advise in matters before the ICJ. Similarly, many of the barristers and university professors appearing in Qatar v Bahrain [48] have long advised in other international forums.

It might be noted that the so-called ‘proliferation’ of new international tribunals runs the risk of fragmenting the coherent body of international legal jurisprudence. Professor Thierry has observed that ‘each of them has the opinion that it is specific and thus, that it has its own problems’.[49] The refusal of the European Court of Human Rights, for example, to consider precedents established by the ICJ regarding its jurisdiction clause, even though the jurisdiction clause of the European Court of Human Rights is almost identical to article 36(2) of the Statute of the ICJ, strikes a note of warning for the future cohesion of international law.[50] The emerging college of public international lawyers appearing before and sitting as judges on these new tribunals may prove to be a unifying element. It is therefore to be hoped that each tribunal does not create its own body of specialist counsel, retarding the development of a truly international bar.

Closer integration of international law in domestic law

Another reason for the significantly enlarged role for international lawyers has been the closer integration of international law in domestic law. Lawyers with local practices have become involved in transactions with international elements, partly as a reflection of the global economy. The Vienna Convention on the International Sale of Goods[51] has alerted lawyers to the need to consider the impact of this agreement on transnational sales contracts and to ensure an ‘opt-out’ clause is included where necessary.[52] Many private lawyers have represented asylum seekers and refugees in detention, often on a pro bono basis, using their skills as litigation barristers in the courts to seek the implementation of human rights in domestic laws and practices.[53] Private law firms representing ships’ mortgagees have been confronted with the customary international law niceties of ‘hot pursuit’.[54] The development of communications technology has called for legal advice in running trans-oceanic cables through exclusive economic zones or on the rights of equatorial states to claim jurisdiction over satellites within their airspace. Sovereign rights over the continental shelf have vastly expanded the jurisdiction of coastal states to petroleum resources, raising problems of delimitation between opposite and adjacent states and overlapping oil concessions.[55] Resources lawyers are now becoming experts on the law of the sea, succession of states to treaties and rights to self-determination, in the interests of their clients.[56]

As states implement their treaty obligations into domestic law, national lawyers have expanded their practices to include these new obligations. In an ironic response to the creation of the ICC, the principle of complementarity has prompted some states to transform their domestic laws to ensure that any national charged with war crimes, crimes against humanity and genocide will be amenable to the local jurisdiction rather than to that of the new international court.[57] In so doing, domestic criminal law must now take account of developments in international criminal law, where relevant, so that, for example, the finding in Nulyarimma that the crime of genocide is not part of Australian law is now outdated.[58] Private criminal lawyers are thus exploring the jurisprudence of the ad hoc international criminal courts for application in national trials.

While the domestic implementation of international legal obligations has been slow and incomplete, national bodies are being established to oversee human rights implementation, environmental law compliance and trade regulation.

The Public International Lawyer in the Media

Public international lawyers have traditionally only occasionally played a public or media role. Where issues of public international law have arisen, Ministers for Foreign Affairs have issued press releases or given media interviews explaining the legal aspects of an international crisis. The Secretary-General of the UN and other representatives of the specialised agencies speak for the institution with an authoritative voice. Occasionally a representative of the IMF or World Bank will be challenged to explain bank policies on issues. A decision or advisory opinion of the ICJ can, albeit briefly, command attention. As the newsworthy item is the minister’s statement or that of the UN Secretary-General, the media has not needed to call on academics or other public international lawyers for comment.

Over the last ten years or so, however, international lawyers have found a place under studio lights, in radio interviews or in newsprint. The media have increasingly resorted to public international lawyers to comment upon the validity or otherwise of the acts of governments or international institutions. International lawyers have also entered the public and political arenas by publishing articles in major newspapers, giving public lectures, writing newsletters and publishing bulletins to bring their views to a wider audience than is possible through the relatively small circulation of texts and scholarly journals. It has become increasingly common for radio and television interviewers to present for comment to a minister or government official the critical views of an academic or other international legal commentator. The initial ministerial reaction may be bemusement that an academic should be given any level of prominence or equality in the debate. A typical response is to dismiss contrary comment as ‘just academic’, a riposte that plays well in some states, but rather less so in others. Finally, the minister will argue that the international legal validity of government policy is supported by advice from relevant government departments, which reflect more ‘real-world’ values and ‘on-the-ground’ experience.

How have public international lawyers stumbled, mole-like, into the public arena? One reason is simple: government ministers and officials persistently claim that their acts conform to international law. The more extravagant the claim, the more tempted is the international lawyer to rise to the challenge. The advice given in support of the validity at international law of the attack on and occupation of Iraq amply illustrates the point. The Memoranda of Advice from the offices of the Attorneys-General of the United Kingdom and Australia were inaccurate as a matter of international law and amounted to little more than an adversarial brief for a client.[59] The political nature of such legal opinions raises concerns for the ‘Westminster’ tradition of fearless advice from the civil service. A curious feature of these Memoranda is that the Australian advice is almost word-for-word the same as the summary of advice given by the British Attorney General.[60] It is unlikely that Lord Goldsmith copied the Australian advice. More probably there was cooperation in preparation of the advice; in principle an efficient collaboration but one that demonstrates the supportive roles of the relevant officials. The partisan nature of the legal opinions also presents a challenge to international lawyers to comment on their validity, hopefully in a scholarly, if not always objective, fashion.[61]

Another reason that might be hazarded for the public role of public international lawyers is that civil society, whether at the national level or internationally, demands that governments conduct their affairs by reference to the international rule of law. In the weeks leading up to the war in Iraq in 2003, opinion polls conducted in the United States, the United Kingdom, much of Europe and Australia demonstrated that a significant majority of those polled considered the war was acceptable if conducted with UN Security Council authorisation and once the weapons inspectors had fully reported.[62] Approximately the same number considered that the war could not be justified in the absence of such authorisation. The Seattle riots at the Second Ministerial Meeting of the WTO in 2000 provide another indication of the growing power of non-state actors to influence the behaviour of states and to integrate wider community values in international trade negotiations.[63]

Putting aside the question whether these perceptions of international organisations give them an unwarranted influence, the polls suggest a growing interest in the function of the rule of law in international affairs. The emergence of an international civil society appears to reflect the influence of non-governmental organisations, the ready access to information through the world wide web, the role of investigative journalism and recognition of the inter-dependence of global society. These and other contemporary developments have quickened interest in international law and stimulated a public role for legal commentators.

The last two years have presented a series of crises for international law and the capacities of the UN. Within weeks of 11 September 2001, the United States launched its war on terrorism by attacking Afghanistan. Early in 2003, with its coalition partners, the United Kingdom and Australia among them, the United States invaded and occupied Iraq. These events have triggered questions about the validity of the attacks, of the so-called right of ‘pre-emptive strike’, of the limits to self defence, of purported rights to humanitarian intervention and of the obligations of an occupying force. Further legal issues have emerged concerning the detention without trial of over 600 prisoners of war and other detainees at Guantanamo Bay and the apparent torture of prisoners at Abu Ghraib prison in Iraq. The construction of a ‘security’ wall by Israel on Palestinian land has also stimulated public interest in the powers of the UN General Assembly and the advisory powers of the ICJ. National, regional and multilateral efforts to combat terrorism have raised concerns about civil rights and detention without trial or legal advice.

These global events have provided much grist for the international lawyer’s mill. Throughout Europe, the United Kingdom, the United States and Australia international lawyers have written letters to the newspapers and engaged in radio and television programs to set out the relevant principles of international law. They have actively intervened in the public debate, presuming to state the relevant principles of international law that apply. They have used titles as professor or doctor, implicitly relied upon the names and reputations of the universities by which they are employed, and their status as directors of institutes and centres of international law, to emphasise the scientifically accurate and objective nature of the advice. In doing so, public international lawyers have also become the object of scrutiny regarding their role in the political/legal debate.

In particular, some international lawyers have questioned the wisdom and ethics of claiming some sort of intellectual moral high-ground above the cut and thrust of political self aggrandisement. Craven, Marks, Simpson and Wilde have written a provocative and thoughtful paper recording their anguished reactions to the publication by them and others of a letter to The Guardian arguing that the war in Iraq would be illegal without a Security Council resolution and in the absence of a right of self defence.[64] Letters along similar lines were written by international lawyers in other counties, including one by the so-called ‘gang of 43’ in Australia.[65] Reaction from colleagues and others caused Craven et al to take stock of their positions as international lawyers, for each in their earlier academic writings had been critical of the statist and positivist approaches of international law. Their scholarly contributions in the past had been to provide a critique of contemporary international law and to call for dynamic interpretations to meet the needs of justice and equity. Criticisms of the letter to The Guardian implied that the authors had become ‘dullard literalists’ and ‘opportunists’ who took mutually inconsistent positions to suit the strategic needs of the day.[66] Particularly galling for the authors was that they may have left the impression, contrary to their views, that the war would have been valid at international law had there been a UN Security Council resolution to confirm it. In questioning their contribution to the debate the authors ask over 40 questions concerning the ethics of the public role of international lawyers, a sample being the following:

• Are such interventions yet another form of self-promotion, inappropriate to those who pretend to scholarly reflection?

• Do academic international lawyers have the right to derive implicit authority from the esteemed institutes to which they belong and credibility from their titles and status?

• It is ethically acceptable to present international law as though it were a comprehensive, coherent body of objectively ascertainable law where, in fact, it is often abstract, lacking in substantive content and certainly contestable?

While, sadly, no attempt is made to answer these questions, they contrast strikingly with Schachter’s paper in 1977. Schachter was not hindered by any such Hamlet-like doubts. He believed that international lawyers give specific meaning to ‘la conscience juridique by publicising normative ideas such as reciprocity, good faith, abuse of rights, non-retroactivity, proportionality and estoppel. This role he described as possibly their ‘noblest function’.[67] Those assured times, it seems, have vanished. Not only is international law itself subject to criticism by juristic commentators deconstructing law that has yet to be fully constructed, but there is little agreement as to how these normative concepts might be applied in practice.

Schachter recognised the problems that arise from a ‘doublement fonctionnel where the international lawyer adopts a dual role as objective scientist and government advocate or lobbyist.[68] Criticisms are made of the nationalist tendencies of some international lawyers. Others argue that academic international lawyers lose objectivity by advising government departments or participating in diplomatic conferences to negotiate treaties. Paradoxically, government officials tend to view academic international lawyers as too objective in failing to recognise the world of ‘realpolitik’. Neither extreme is an accurate representation of the core problem that international law cannot always be stated with absolute clarity. Relative to domestic systems of law, international law remains a primitive regime that is highly subjective, reflecting national interests and increasingly those of international institutions and lobby groups. The ethical problem for international lawyers lies in purporting to state the relevant international legal principle where there have been relatively few primary sources of law and little consensus on the content of abstract rules. Moreover, international law is increasingly threatened by fragmentation and may no longer be a unified discipline. Contemporary international lawyers are now inclined to describe themselves by reference to their specialist fields such as WTO law, environmental law, law of the sea, human rights, international dispute resolution, the UN or refugee law; the list is apparently endless. Few international lawyers today are generalists in the sense that Sir Robert Jennings, Sir Hersch Lauterpacht or Professor D P O’Connell were.

Recognising these realities of the modern international lawyer does not, however, quite meet the question whether ethical restrictions should constrain them from engaging in public debate about international law. Ethical restraints surely apply to the public role of any commentator. But there seems to be nothing unethical in using the indicia of recognised expertise at a university to establish the credentials upon which an international lawyer makes an intervention. We are inclined to accept the views of a Fellow of the relevant Royal Society at a major teaching hospital on the merits of in vitro fertilisation as of greater weight than those of our local medical practitioner. If an international lawyer has conducted research in the subject for many years, lectured in the area before sceptical students and published in texts and journals after rigorous peer review, it seems churlish to argue that they ought not to put their views in the public domain. It is undoubtedly a matter of concern that ten-second ‘sound bites’ in the media present an impression of clarity in international law where clarity rarely exists. But this is a general issue for all ‘experts’ contributing to any public debate. Every effort must be made to ensure that any statement is both accurate and fair, to the extent that this is within the interviewee’s control. It is an occupational hazard, however, that many legal commentators have cause to regret entering the public fray where, having spent half an hour filming, the only extract on the evening television news is the final ‘throw-away’ and regrettable line.

While recognising the traps for the unwary, the temptations of a vainglorious public role – even international lawyers are entitled to 15 minutes of fame – and the appearance of objective international law, engagement in the public debate is justified. Above all, there is a responsibility for those teaching and writing about the principles of international law to respond to a genuine public demand to understand how the international rule of law should apply. Where the crisis of the day concerns such basic questions as the UN Charter’s prohibition on the use of force, breaches of fundamental principles of humanitarian law and detention of prisoners without trial for lengthy periods, international lawyers worth their salt should be willing to nail their colours to the mast, not only by mixing their metaphors, but by stating the law with accuracy. While judgments about international law will be made amongst competing principles, and are to a degree necessarily subjective, this is not to say that they can be dismissed as overly relative. Indeed, on many contemporary issues, international lawyers have been generally unified.


While contemporary international tribunals have well-documented sources of international law and are less inclined to cite juridical writers, they have not quite forgone the ‘incantations’ of Hall and Oppenheim. Research will typically begin with the authorities, though it will doubtless end with the relevant treaty or state practice. International lawyers today continue to add to the vast international legal literature and contribute to law reform, provide legal advice and appear before international tribunals. Concerns of the 1970s that international lawyers exhibited nationalist tendencies have given way to the ‘internationalisation’ of international lawyers. Contemporary international legal work takes lawyers to many states, international conferences, international arbitral and judicial tribunals, diplomatic negotiations and meetings of international organisations. Access to primary and secondary resources has made legal research genuinely global. Jurisprudential analysis is subject to rigorous review through the major international law journals, encouraging disciplined and reasoned application of international law.

The challenge posed for the twenty-first century is whether the university law schools can keep pace with the need for a legal education that prepares undergraduates for their international legal practices in the future. It has become imperative that legal education be ‘internationalised’ to take account of new substantive international laws, the closer integration of customary and treaty law in national law and the growing jurisdictional reach of international tribunals. International lawyers are thus also required back where they began, at their academic institutions teaching and researching international law.

[∗] Professor and Director, Institute for Comparative and International Law, University of Melbourne.

[1] O Schachter, ‘The Invisible College of International Lawyers’ (1977) 72 Northwestern University Law Review 217.

[2] ICJ Statute, art 38(c).

[3] C Parry, The Sources and Evidences of International Law (1965) 103.

[4] (1778) Hay & M 222, 165 ER 651: ‘found’ by Judge Jessup in Transnational Law (1956) 11 and cited by Parry.

[5] Above n 3 105.

[6] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Order of 13 December 2000; [2002] ICJ Rep 1, 41 ILM 536.

[7] Congo Case (2002) 41 ILM 536, 575.

[8] Ibid 26.

[9] Above n 7, 44.

[10] Great Britain v Spain (1925) 2 RIAA 615, 640.

[11] The ILC is currently considering the ramifications of fragmentation of international law: GA Res 57/21 (2002); see Report of the ILC on the work of its fifty-sixth session, A/59/10, ch X (2004).

[12] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [57].

[13] Ibid.

[14] Ibid [140].

[15] Ibid [46]; [80] (Bassiouni and Meron).

[16] Ibid [52].

[17] K Wolfke, Custom in Present International Law (2nd ed, 1993) 77.

[18] It is of concern that some states continue to deny access to the internet to their citizens, other than at the most senior level.

[19] Schachter, above n 1.

[20] <>

[21] International Law Council, Articles on the Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, Annex.

[22] Culminating in the ILC’s Draft Statute for an ICC (and eventually in the Rome Statute), Report of the International Law Commission on the work of its forty-sixth session (1994) A49/10, ch II; Statute of the ICC 1998, reprinted in (1998) 37 ILM 999.

[23] See ILC, Draft Articles on Jurisdictional Immunities of States and Their Property, [1991] II (2) Yearbook of the International Law Commission.

[24] Gabcíkovo-Nagymaros (Hungary v Slovakia) (1997) 37 ILM 162 [47]; M/V ‘Saiga’ (No 2) (St. Vincent and the Grenadines v Guinea) (1999) ITLOS, 38 ILM 1323; Israeli Wall Case, Advisory Opinion of 9 July 2004 [140].

[25] D J Bederman, ‘Counterintuiting Countermeasures’ (2002) 96 American Journal of International Law 817, 818.

[26] Harvard Research in International Law, ‘Draft Convention on Jurisdiction with Respect to Crime’ (1935) 29 American Journal of International Law (Supplement) 435; reprinted in (1987) 26 ILM 1346.

[27] Rainbow Warrior Arbitration (New Zealand v France) Special Arbitration Tribunal (1990) 82 ILR 499.

[28] Australian Law Reform Commission, Foreign State Immunity, Report No 24 (1984).

[29] UN Framework Convention on Climate Change (9 May 1992), 1771 UNTS 165.

[30] Kyoto Protocol to the UN Framework Convention on Climate Change (1-10 December 1997), reprinted in (1998) 37 ILM 22.

[31] Protocol on Environmental Protection to the Antarctic Treaty 1991, reprinted in ( 4 October 1991) 30 ILM 1455.

[32] Eg the Reports on the Revised Single Negotiating Texts for the Convention on the Law of the Sea (UNCLOS) (10 December 1982), 1833 UNTS 397, reprinted in (1982) 21 ILM 126, provide an important resource.

[33] Marrakesh Agreement Establishing the World Trade Organization (15 April 1994) 1867 UNTS 3, [1995] ATS No 8 [hereinafter WTO Agreement].

[34] Eg Ahmadou Sadio Diallo (Guinea v Congo); Armed Activities on the Territory of the Congo (Congo v Uganda); Frontier Dispute (Benin v Niger); Certain Criminal Proceedings in France (Congo v France) <>.

[35] Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits), [1962] ICJ Rep 6.

[36] Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore).

[37] Advisory Opinion of 9 July 2004.

[38] Texaco Overseas Petroleum Co and California Asiatic Oil Co v Libya (1977) 53 ILR 389; reprinted in (1978) 17 ILM 1.

[39] <>.

[40] See generally R Lillich, D B McGraw and D J Bederman, The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (1998).

[41] <>.

[42] UN Convention on the Law of the Sea (UNCLOS) (10 December 1982) 1833 UNTS 397, reprinted in (1982) 21 ILM 126; art 292.

[43] Understanding on rules and procedures governing the settlement of disputes, WTO Agreement, above n 33, Annex 2.

[44] Updates of WTO Dispute Settlement Cases, 16 June 2004; <>.

[45] Sanitary and Phytosanitary Agreement (SPS Agreement) (15 April 1994) 1867 UNTS 401.

[46] Report of the Appellate Body (26 November 2003) WT/DS245/AB/R.

[47] ITLOS (8 October 2003) Case No 12.

[48] Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction: Second Phase) [1995] ICJ Rep 6; 102 ILR 1.

[49] Cited by Sir Robert Jennings, 102 ILR xiv.

[50] Loizidou v Turkey (Preliminary Objections) Series A, No 310 (1995) 103 ILR 621.

[51] The Vienna Convention on the International Sale of Goods (10 April 1980) 1489 UNTS 3; [1988] ATS No 32.

[52] Ibid art 6.

[53] The Tampa litigation provides a primary example: Ruddock v Vadarlis [2001] FCA 1329, 18.

[54] Eg Aliza Glacial, arrested 17 October 1997; Bergensbanken ASA v The Ship ‘Aliza Glacial’ [1998] 1642 FCA.

[55] Particular problems have arisen in the Gulf of Thailand and Timor Gap; G Triggs and D Bialek, ‘The New Timor Sea Treaty’ (2002) 3 Melbourne Journal of International Law 322.

[56] The Oceanic litigation in the District Court of Columbia, New York Oceanic Exploration, et al v Conoco Phillips, Inc. et al, Ni 1:04-cv-00332-EGS (DDC) provides an example of national lawyers responding to such issues in their contemporary practices, see G Triggs, ‘The Oceanic Litigation: a judicial no-man’s land in the Timor Gap’ [2004] International Energy Law and Tax Review 140.

[57] G Triggs, ‘Implementation of the Rome Statute for the International Criminal Court: a Quiet Revolution in Australia Law’ [2003] SydLawRw 23; (2003) 25 Sydney Law Review 507.

[58] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621. International Criminal Court (Consequential Amendments) Act (Cth), Subdivision B of Division 268.

[59] Memorandum of Advice on the Use of Force Against Iraq, provided by the Attorney General’s Department and the Department of Foreign Affairs and Trade, (18 March 2003) (authored by Bill Campbell QC and Chris Moraitis and dated 12 March 2003) <> .

[60] House of Representatives, Daily Hansard, 18 March 2003: 12508 <> . See also A Byrnes and H Charlesworth, ‘The Illegality of the War Against Iraq (2003) 22 Dialogue 4.

[61] Eg G Williams and D Hovell, ‘Advice to Hon Simon Crean MP on the Use of Force Against Iraq’ (2003) 4 Melbourne Journal of International Law 183. See also Byrnes and Charlesworth, above n 60.

[62] The UN Security Council and the Iraq War, 30/08/2004 <>.

[63] See generally, J J Schott, The WTO after Seattle, Institute for International Economics (2000).

[64] M Craven, S Marks, G Simpson and R Wilde, ‘We are Teachers of International Law’ (2004) 17 Leiden Journal of International Law 363; The Guardian (7 March 2003).

[65] ‘A pre-emptive strike on Iraq would constitute a crime against humanity’ Sydney Morning Herald (26 February 2003). See also P Allott and A Dashwood of Cambridge University in the International Herald Tribune and The Times (2003).

[66] Craven et al, above n 64.

[67] Schachter, above n 1, 226.

[68] Ibid 218.

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