International lawyers

Although more students are studying international law, it is not easy for a young lawyer to practise it. Even in large law firms that have international law departments, the bulk of their work is commercial arbitration. The involvement of barristers and advocates in international law is usually incidental to their normal work. Most of the distinguished practitioners of international law who appear before international courts or tribunals are professors of international law. As a rule, foreign ministry legal departments are staffed by diplomats who have legal training, but who alternate between legal and political posts. Few have legal advisers who during their careers do little other than law, the British Diplomatic Service being a prime exception. There are jobs for international lawyers also in the United Nations and other international organisations.

Sometimes the media will describe a person as an ‘international lawyer’, yet he may at most have a practice with many foreign clients, and be concerned more with foreign law and conflict of laws.

Yet, when the media is full of stories questioning the lawfulness of a state’s actions, some domestic lawyers rush to express their opinions, usually critical. They are not always wrong, but usually display a lack of familiarity with international law, apparently believing that the reading of a textbook or an (apparently simple) instrument like the UN Charter is enough. The fact that some textbooks are lucid and make international law accessible, does not mean that a domestic lawyer, however eminent, can become an expert on it overnight. The difficulties that the judges of the House of Lords (the UK’s final appeal court) had in grappling with international law in the Pinochet case, despite having been addressed by several international law experts, are amply demonstrated by their differing separate opinions. Some domestic lawyers have specialised in particular areas of international law such as aviation, human rights or the environment, without a good grounding in international law generally. A tax law expert will necessarily have a sound knowledge of contract, tort and other basic areas of domestic law, without which it would be difficult to advise effectively.

The sources of international law International law differs from domestic law in that it is not always that easy to find out what the law is on a particular matter. Domestic law is reasonably certain and found mostly in legislation and judgments of a hierarchy of courts. In contrast, international law is not so accessible, coherent or certain. There is no global legislature (the UN General Assembly does not equate to a national legislature), and no formal hierarchy of international courts and tribunals. As with the (mainly unwritten) British Constitution, an initial pointer to the international law on a given topic is often best found in the textbooks. They will explain that international law is derived from various sources, which are authoritatively listed in Article 38(1) of the Statute of the International Court of Justice (annexed to the UN Charter) as:

1. international conventions, whether general or particular, establishing rules expressly recognised by the contracting states;

2. international custom, as evidence of a general practice accepted as law;

3. the general principles of law recognised by civilised nations;

4. subject to the provisions of Article 59,16 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Treaties

The reference in (a) to ‘international conventions’ is to bilateral and multilateral treaties. For the moment it is enough to say that, as with domestic legislation, treaties now play a crucial role in international law, important areas of customary international law having now been codified in widely accepted treaties. In consequence, custom and the other sources of international law are no longer as important as they used to be. But that does not mean that custom is on a lower level than treaties. There is no formal hierarchy of the sources of international law. As between parties to a treaty, the treaty binds them. As between a party to a treaty and a non-party, custom will apply, including custom derived from treaties.17 General principles of law, judgments and the opinions of writers are of less importance as sources. (The law of treaties is dealt with in some detail in Chapter 5.)

Date: 2016-03-03; view: 885