International Law and International Relations:United Kingdom Practice

III. Conclusion

The role of legal adviser in a Foreign Ministry involves striking the right balance between the objective assessment of the legal position and the more partisan function of advocacy. In this context, the distinction can usefully be made between the formulation of policy and its execution - although yet again, in practice the two stages will often not be clearly separated, but will rather merge into a single developing process.

When policy is being formulated, it is very important that departments should take legal advice and give it due weight. In this context, the legal adviser needs to take a somewhat objective view, and, in the light of his knowledge and experience of international law, advise on the legal strengths and weaknesses of various possible courses of action. He will do a disservice to his policy-makers if he gives the impression that there are no international legal problems, when in fact there are some - just as he will if, at the other extreme, he advises on the basis of the most cautious and restricted view of what is permissible under international law. He needs to weigh the merits of proposed courses of action in terms of international law as objectively understood, and, in the light of the legal risks as he knows them, advise on which course of action would be most readily defensible, or, if there is room for flexibility, how best to adapt the proposals to secure their conformity with the law.

Once the policy has been decided, however, the role of the legal adviser consists in putting forward the best legal case he can in support of that policy. In this respect, he is very much an advocate, not a judge. Even so, as an advocate he is still constrained by his professional sense of responsibility; he should not advise that a legal argument be put forward which he knows to be untenable either as a matter of law or in relation to the facts of the case as he knows them. Nevertheless, his partisan role as advocate is clearly different from his earlier role as counsellor.

In this context, it is relevant to note certain characteristics of international law. In large part it is customary law; and even when it is treaty law, treaties are quite often in general terms or refer back, expressly or implicitly, to customary international law. Second, there is for the most part no compulsory judicial settlement. One of the important consequences of these two factors is that international law is capable of development so as to keep abreast of the realities of international life. This is not always the case in national law, where a well-developed and sophisticated legal system may sometimes be too formal and complex to respond readily to changes in society. But international law lacks the formal structures of national legal systems - or if it has them, does so to a lesser extent - and is as a result less likely to be static. Since there is no legislature it changes essentially through State practice, which means what Foreign Ministries do and what Foreign Ministry legal advisers advise their Ministries it is lawful for them to do. Thus, States can, and do, break new ground and so contribute to the creation of new law. Accordingly, a legal adviser may have to take part in this process and may certainly, in appropriate circumstances, advise that it will be lawful to do something which has never been done before, or which would involve the development in a new direction of an existing rule of international law.

But here the inherent flexibility of an essentially customary system of law has its dangers as well as scope for constructive development. Because large areas of international law are still customary law, it is often difficult to point to a clear and precise rule applicable to a given situation, or prohibiting (or permitting) a particular course of action. In the absence of any general compulsory judicial settlement, the temptation, and sometimes the pressure, to attribute to international law a degree of elasticity which enables almost anything to be condoned (or condemned if that is what is wanted) may be great. Such temptations and pressures must be resisted: the legal adviser should at all times give advice with a proper sense of professional responsibility and integrity. In the longer term, an irresponsible attitude to international law on the part of a State would weaken both the role of law as a factor for stability in international relations and the international reputation and standing of that State.

The nature of the international legal process, coupled with the nature of the work of Foreign Ministries, imposes on their legal advisers a distinctive and difficult role. It is one in which they find themselves part objective assessor of the prevailing state of international law, part constructive interpreter of it, part guide as to the proper paths for its future development, part bridge-builder between the politically desirable and the legally defensible, and part advocate of their Ministries' causes. The one common thread holding together these potentially divergent parts of their role must be a profound sense of professional responsibility and integrity.

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