13 Aug Counseling the Prince: Reflections on the Art of Advising the State on International Law
[Dr. Mohamed S. Helal is an Associate Professor of Law at the Moritz College of Law at The Ohio State University, and is currently a Visiting Associate Professor of Law at Harvard Law School.]
This blogpost is partially cathartic. Since last year, I’ve been on leave from academia to serve as a counsel on international law with the Egyptian foreign service. During that period, I’ve had the privilege of participating in intensive inter-governmental negotiations on a matter of great consequence to peace and security throughout East Africa. (I offered an account of these negotiations here, here, and here). This blogpost is an attempt to ameliorate some of the stresses and strains, pains and pressures of engaging in a high-stakes political process by sharing with fellow readers of Opinio Juris some observations on the practice of government lawyering in the area of public international law.
This blogpost is also partially reflective. I recently read a piece on EJIL:Talk! by Harry Aitken, a legal adviser with the Australian Department of Foreign Affairs and Trade, on the institutional duties of government lawyers advising states on international law. For the sake of brevity, and because my intention is not to directly respond to Harry Aitken’s piece, but to use it as an intellectual foil to reflect on the realities, politics, and peculiarities of advising the state on international law, I will only summarize Harry’s main ideas.
Harry calls for the development of institutional duties for international lawyers akin to the duties and responsibilities of domestic lawyers. The purpose is to encourage lawyers counseling the state on international law to “ensure the integrity of the rule of law and respect for the interests of justice,” by presenting honest and accurate advice on the international legal rights and obligations of the state, by promoting international law through encouraging the state to comply with international law, and by protecting international law through preserving and developing its role in international relations.
The Illusory Community:
My principal concern with Harry Aitken’s proposal is that it is sociologically flawed. The institutional duties of domestic lawyers are not merely obligations codified in areas of law such as ethics and professional responsibility. These duties are, ideally, echoes of a commitment to uphold, by applying the substantive and procedural rules of a legal system, a particular concept of justice within a specific community. That concept of justice is an expression of a set of fundamental social values that members of that community share (or, at least, have been habituated into accepting). Ultimately, these values reflect a community’s definition of a ‘good life’ (or, realistically, the definition of a ‘good life’ articulated and enforced by the ruling elite). Indeed, a defining characteristic of a “community,” or what Ferdinand Tönnies called a gemeinschaft, is that its members share fundamental values that establish the overarching purposes of their association and set the terms of their interaction within a community.
The international system, however, is not a gemeinschaft that is guided by a common moral compass. The omnipresent references in political and popular parlance to the “international community,” while rhetorically satisfying, are invocations of a chimera, not a sociological fact. The political reality is that the territorial state remains the dominant mode of the socio-political organization of humanity. Moreover, these territorial states do not share a common conception of the ‘good life’. These states, which are unequally endowed with the elements of national power, pursue conflicting strategic designs, espouse contrasting worldviews, and promote clashing normative agendas, all of which makes the international system a profoundly competitive realm.
While it is ahistorical to assume that the territorial state will retain, for all time, its positon of socio-political preeminence, it is an historical truth that homo sapiens are a tribal species. Whether we are divided into territorial states or continental empires, nomadic tribes or roving bands, city states or religious orders, humanity will always organize itself into what political scientists call conflict groups that compete over everything from influence and stature to territory and scare resources.
To further complicate matters, we are currently experiencing a moment of increased hostility in world politics. The passing of America’s unipolar moment and the shifting topography of world power caused by Russia’s resurgence and China’s reemergence, combined with the wave of far-right populism that is sweeping through the western world, has accentuated the competitive and conflictual climate of the international system.
As I have discussed elsewhere (here, here), international law is a product of these realities. The rules of international law and its institutional infrastructure are primarily generated by the actions and reactions of territorial states as they compete and cooperate to pursue their individual interests. True, non-state actors, such as corporations, civil society, international organizations, and expert networks, and sub-state entities, like mega-cities and federal states, are influential in global governance and in international lawmaking. Nonetheless, the territorial state remains the dominant player in both the lawmaking and law-breaking processes internationally. Moreover, the fundamental social values of the international legal system continue to reflect the normative commitments and distributive preferences of the Great Powers who engineer the legal architecture of the international system in a manner that promotes their social values and advances their interests.
That is the social reality and political landscape that lawyers advising the state on international law must navigate, and that is why I am skeptical about Harry Aitken’s views on the institutional duties of these government lawyers. These lawyers inhabit a realm of moral contestation and political competition where the rules of international law are the outcome of a complex process that includes coercion and compromise, pressure and persuasion, diktat and expedience. Unlike their domestic counterparts, government lawyers practicing in this area do not operate in a communal social space defined by a relatively stable set of shared values and entrenched moral commitments.
In a tribal world, articulating general institutional duties for government legal advisers would be an exercise of constructing a normative edifice on sociological and political quicksand. The principal duty of the government adviser is towards her tribe, and unless she believes that international law, whether the system as a whole or particular rules, advances the material and ideational interests of her tribe, it is unreasonable to demand of her to protect and promote a normative structure that is prejudicial to her tribal interests.
On State Interest:
Arguing that the government legal advisers owe fealty to their states and that their primary responsibility is to advise their political masters on advancing the national interest is not to claim that international law is irrelevant in international politics or that the pursuit of state interest is necessarily inconsistent with the promotion of international law. Nor is this a claim that international politics is an immoral, unethical realm of incessant contestation and violence. In short, I have always felt that it is a caricature to describe the world as an unceasing Hobbesian bellum omnium contra omnes.
Rather, international law and international institutions are essential to the pursuit of state interests. It is indispensable for the legal counsel to understand how law and institutions impact the policy-making and policy-execution processes, and how they can be deployed to further the national interest. This requires that government lawyers develop a keen understanding of the content and complexities of the national interest and to appreciate the many ways in which international law (both as a system and as particular rules) affects the national interest.
To do so, a first step is for government lawyers to realize that state interests, a term that is often employed casually by scholars and practitioners alike, is an organic concept that is constantly evolving, always contested, and uniquely multidimensional across time and space. Specifically, a successful legal counsel ought to consider at least three possible forms or dimensions of state interest all of which are affected by international law.
1. Short-term gains & Long-term gains: Occasionally, a state, or its ruling elite, will determine that its interest is furthered by engaging in a transactionalist foreign policy, where every decision is a quid pro quo and every choice is dependent on whether instant benefits outweigh the immediate costs(Exhibit A: Donald Trump). In a world like this, the legal counsel becomes something of a scribe. Her role will be to deploy law-speak to codify political understandings of limited temporal validity.
International relations, however, is not a one-off game; it is a long-term iterative process. For most states (and individuals), interactions are better viewed through the lens of diffuse reciprocity, where pay-offs are often delayed, where issue-areas are interconnected, which means that compromise on one issue is translatable into deferred benefits on another, and where reputation is an important form of political capital.
In this world, international law and international institutions matter. The former provides the intellectual tools that make long-term political exchanges possible, while the latter are often the forums (or, if you like, the markets) where much of the trading happens. Here, the legal counsel will become something of a savvy dealmaker. She will need to develop a ‘global’ understanding of the international system to identify where accommodations are possible and when compromise is palatable, and hone her ability to navigate various sub-fields of international law to facilitate deal-making.
2. Structural constraints, Domestic considerations, & Bureaucratic interest: If there’s a single non-law book that government lawyers must read it’s Graham Allison’s Essence of Decision. It explains the reality that when serving the state and articulating legal advice one must remain cognizant of three forms/levels of variables that affect the policy-making process.
First, states operate within the structural constraints of the international system. The configuration of global power (i.e. a unipolar, bipolar, multipolar, or non-polar system), and the patterns of alliances and partnerships that a state maintains, will shape state policy and determine the limits of the feasible, thereby dictating the trajectory of legal advice.
In addition, domestic political considerations will often pull and push state policy and shape legal advice. At times, sound legal practice is untenable because it is unpalatable to public opinion or domestic constitutional or legal requirements, while at other times public passions might dictate a policy that is of doubtful legality.
Finally, all civil servants must watch the British sitcom Yes, Minister and its sequel Yes, Prime Minister. The timeless wisdom of Sir Humphrey Appleby’s witticisms is that, as lawyers and civil servants, we are bureaucrats, and like it or not, we are expected to look out for the welfare of our department or ministry and work to expand its influence. To matter in and affect the policy-making process, the legal counsel must be aware of the institutional effects of her advice and watch out for the inevitable political elbowing that her fellow legal advisers in other government departments will exercise.
3. Systemic Stability and Systemic Engineering: Often, as academics of international law, we write about grand normative claims and deliberate on epic matters of war and peace, while forgetting that most of the work of international law happens in relatively mundane areas that are, nonetheless, indispensable for the efficient operation of the international system.Air travel, telecommunications, the internet, maritime navigation, wire transfers and financial transactions, consular protections, extradition and cooperation in penal matters, are examples of activities that are essential, despite being relatively quotidian, and that are almost entirely dependent on some form of international legal regulation.
For many legal counsels, part of their work focuses on ensuring the effective operation of these highly technical areas of international law, and guaranteeing that their state interests in these areas are preserved.
On the other hand, there are moments where the legal counsel can act as a social engineer. Law is, ultimately, an exercise of power, and in many instances, states exercise power and further their interests by shaping the normative environment that they inhabit. One of the ways this is done is through challenging existing legal regulation and proposing ‘reforms’ to extant institutional structures. Great powers, like domestic elites, are usually the most adept at exercising this form of social engineering. However, small states have also engaged in this activity to advance their own interests, to level the playing field with powerful neighbors, and to provide a measure of protection against the indiscriminate use of hard power by predators within the international system.
In these instances, the legal counsel operates like a norm entrepreneur seeking to translate policy proposals and normative programs into lex scripta and to transform de legel ferenda that reflects the national interest into the governing lex lata.
I realize that for some readers my thoughts might come across as an act of disciplinary heresy. After all, many members of the so-called invisible college of international lawyers imagine international law as an instrument of promoting an anti-statist, anti-sovereignty reformist agenda predicated on globalism and humanism.
These are laudable objectives and commendable purposes.
Indeed, I am not championing a surrender to cynicism. There are times when government lawyers must draw ethical redlines. For instance, it is a duty enshrined in every domestic legal system and grounded in basic human decency to resist abhorrent practices such as extra-judicial killings, naked acts of aggression (especially when based on shameless deceit), discrimination on any grounds, torture, refoulement, and the support for acts of terror and extremism.
However, as we reflect on the broader duties of government lawyers and the nature of their profession, it is essential to recognize the reality that law is a form of power, and that every utopia is a reflection of its proponents’ normative and distributive preferences, which might generate dystopic outcomes for other stakeholders. In a tribal world of competing territorial states in an increasingly hostile international system, it is untenable to ask government lawyers to uncritically present, promote, and protect an international legal system that is, at times, ineffectual and indeterminate, or that could be prejudicial to the interests and values of the state, or that may perpetuate patterns of historical injustice.