The last international lawyer, or so it seemed

It was a curious time, when the world fell apart and no one noticed.

Ideas and institutions that men had died to defend no longer seemed important.

The experience of two world wars in the 20th century had left their lessons burned indelibly into the hearts and minds of those who had fought and lived through them, but now they were forgotten.

Or if not forgotten, they were at least drained of their urgent content, reduced to mere intellectual incantations, rote formulations which no longer engaged the heart or the will to take individual and collective action in their defense.

The growth in the 20th century of international law, whose most basic principles were enshrined in the United Nations Charter in 1945, had lost momentum in the world of actions. Left behind was a hollowed-out edifice of principles which all major nations had once subscribed to, and still accepted verbally perhaps, but no longer felt obliged to defend through actions and not just words.

The cornerstone of the U.N. Charter, contained in Article 2 paragraph 4, was the prohibition of the threat or use of force against the territorial integrity or political independence of any state.

There were other principles of international law of fundamental importance. One was pacta sunt servanda (“treaties are to be observed”).

Another, even more fundamental principle in international law, without which international law could not operate in the real world, was the principle that states (countries) must acknowledge actions of which they are the author. This principle is in fact implicit in the existence and operation of any legal system, whether international or domestic.

A further obligation under international law was that states must offer public legal justifications for their actions. In questions involving the use of force, such justifications were explicitly required by Article 51 of the U.N. Charter.

Other international legal principles protecting human rights had been contained in multilateral treaties and customary international law, as well as the U.N. Charter.

However, as the whole system of international law governing fundamental aspects of relations among states had weakened, so too had the legal bulwarks supporting international human rights obligations.

This had led to a world in which leaders seemed unaware of, or oblivious to, any need to uphold fundamental norms of international law and the U.N. Charter.

At the United Nations General Assembly annual meeting in New York in September, 2015, the world’s attention was drawn not to a General Assembly resolution condemning Russian military conquest and “annexation” of the Crimea in 2014, or the ongoing Russian invasion of the eastern region of the Ukraine, but on what Vladimir Putin, the invading conqueror, might say in his address to the General Assembly.

Nor was the world’s attention drawn to the massive war crimes and crimes against humanity committed against the Syrian people by Bashar al-Assad, with the legal and moral complicity of Russia and Iran which backed him to the hilt with money, weapons, advisers and even combat personnel, or to Putin’s current military intervention in Syria enabling al-Assad to continue the commission of these crimes.

Rather, world attention focused on the meeting between Barack Obama and Putin and speculation on the kind of “deal” the West might strike with Putin to cover over the fiasco of their defeat in Syria and Iraq.

The Nuremberg Principles seemed to have been forgotten.

International law itself seemed to have given way to a new system of “might makes right”, the kind of system that had led to two world wars in the 20th century.

Everywhere international law, particularly the international law governing the use of force and that guaranteeing fundamental human rights, had been forgotten.

While President Obama in his General Assembly speech on September 28 did use the words “international law”–a rare occasion during his presidency, he did so with an awkwardness and also other words that revealed his discomfort with the term.

Moreover, harking back to his Nobel Prize Acceptance Speech in 2009, he also declared,

I lead the strongest military that the world has ever known, and I will never hesitate to protect my country or our allies, unilaterally and by force where necessary.

–Office of the Press Secretary, The White House, “Remarks by President Obama to the United Nations,” September 28, 2015.

Indeed, the Trenchant Observer, an international lawyer who had followed these events and knew about 20th century European history, often felt alone.

While he knew there were others who shared his views, their voices were no longer heard outside specialists’ circles. They were no longer heard in the public arena where amid the tumult and shouting public opinion is formed.

Nor did they seem to be heard in the councils of government when decisions to take actions were being made.

Even the current American president rarely mentioned international law and, judging by his actions and not merely his words, held international law–particularly its binding nature which could constrain his freedom of action–in low regard.

Obama’s muddled references to international law in his U.N. Address were a welcome improvement but in the end were only words in a speech, when it is actions that count.

The action heard much more clearly than the words in his speech was that he met with Vladimir Putin, the presumptive war criminal who had invaded the Crimea and the eastern Ukraine, and who was now taking vigorous military action that would enable Bashar al-Assad to continue the commission of war crimes and crimes against humanity in Syria.

The Observer couldn’t avoid the feeling at times that he was alone in his belief in the critical importance of international law and how ignoring it had much to do with all of the chaos he saw unfolding in the world.

He had become “the last international lawyer”, or so it seemed.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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