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Legal Advisers And Foreign Affairs (Review Article)

Published online by Cambridge University Press:  28 March 2017

Gerald Fitzmaurice
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American Journal of International Law , Volume 59 , Issue 1 , January 1965 , pp. 72 - 86
Copyright
Copyright © American Society of International Law 1965 

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References

1 See part II below.

2 See, for instance, P. E. Corbett, Law in Diplomacy (Princeton University Press, 1959), and E. B. Bilder, “The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs,” 56 A.J.I.L. 633 (1962).

3 Other less obvious but weighty considerations favor the departmental lawyer system. In many cases security considerations alone would forbid outside consultations. The system also means an enormous saving of time and trouble, for there are many cases where the point involved can be put to a departmental legal adviser in a few sentences, where otherwise pages of explanations and many hours of conference would be necessary.

4 Paper contributed by Mr. M. Cadieux, Q.C. (Canada). The words quoted will be found on p. 36 of the publication.

5 See paper contributed by Mr. W. Eiphagen (Netherlands), at p. 83 of the publication.

6 An Attainable International Court System, by Donald A. Wehmeyer, published as Pamphlet Series No. 1 by the World Peace Through Law Center, Washington, D. C.

7 Immunity from State Tax of Philippine Gold in Federal Reserve Bank—Liability for damage on high seas to American vessel—Taxation of consular property—Indemnity for Vice Consul shot in Tibet—Liability for damage to Seventh Day Adventist Church Building in Shanghai—Title to iron ore deposit in Eritrea owned before World War II by Italians but claimed by Ethiopia—Conflicting interest in bank deposits made in wartime—May wreck of S.S. China Arrow be salvaged by Italian vessel ? ??— Payment of pre-occupation debts in depreciated occupation currency—Colonies; disposition of statal and parastatal property—Currency: is Italy obliged to pay Nevada Corporation dollar equivalent of Federal Reserve currency sequestered in China?— Panama: request for extradition of four Soldiers from Canal Zone—Line of demarcation between Gulf of Mexico and Inland Waters along coast of Louisiana—Effect of agreement made with dependent territory without consulting suzerain—Extradition: TJ. S. citizens charged with manslaughter in Germany—Alaska: diversion of head waters of Yukon—Caroline Islands: Spain's claim to coaling stations.

8 See note 9 below.

9 They were twelve: Argentina, Canada, Colombia, Japan, Malaysia, Mexico, Netherlands, Nigeria, Philippines, United Arab Republic, United Kingdom and United States. Background papers were contributed by Mr. M. Cadieux and Professor Maxwell Cohen (Canada), Dr. F. Urrutia (Colombia), Professor Y. Takano (Japan), Mr.R.Ramani (Malaysia), Dean Sepulveda (Mexico), Professor Riphagen (Netherlands), Mr.S.D.Adebiyi (Nigeria), Dr.A.E1 Erian (United Arab Republic), Dr. Clive Parry (United Kingdom), Professor S.D. Metzger (United States), Mr. Oscar Schachter (United Nations). Dr. Parry's fifty-page contribution is, however, more in the nature of a dissertation on the whole subject of law in government, and goes considerably beyond the foreign affairs aspect.

10 Respectively, Messrs. Lester Nurick, Oscar Schachter, Francis Deak, H.C.L. Merillat and Richard Palk.

11 Those consulted were collectively known as ‘ ‘ Civilians” or “ The Doctors,'’ i.e., Doctors learned in the civil law because they practiced in branches of the law deriving, or deemed to derive from the Roman civil law rather than to be part of the common law of England, such as ecclesiastical law, inheritance and, naturally, the jus gentium. The “Civilians” practiced in premises known as “Doctors’ Commons” near St. Paul's Cathedral; and, until in the 18th century the practice began to grow up of consulting the “King's Advocate” (himself a member of Doctors’ Commons) and later the Attorney General and Solicitor General, as Law Officers of the Crown, cases were referred to Doctors’ Commons in a sort of collective way that was known as “taking the opinion of the Doctors.” Many interesting examples will be found in Lord McNair's “The Debt of International Law in Britain to the Civil Law of the Civilians” (Transactions of the Grotius Society, Vol. 39, 1954, p. 183); and see also his International Law Opinions (Cambridge University Press, 1956).

12 But until fairly recently, and even perhaps now, it could well be that a government which had its own legal service for most or all other purposes would still have recourse exclusively to private specialists for advice on international law matters.

13 The system of ‘ ‘ sending out'’ for all advice (even though it took the form of consulting the King's (Queen's) Advocate, the Attorney or Solicitor General or an international law specialist such as Sir J. Parker-Deane) continued to be that of the British Foreign Office until the 19th century was three-quarters through. In 1876, Sir Julian Pauncefote (of the Hay-Pauncefote Treaties, and afterwards British Ambassador in Washington as Lord Pauncefote), who was a lawyer, was appointed an Under Secretary in the Foreign Office, and he did some of the legal work, and apparently continued to do so even after becoming Permanent Under Secretary (i.e., official head of the Office) in 1882. It was not until three or four years later that the first fulltime resident Legal Adviser was appointed to devote himself exclusively to the legal work of the Office.

14 As in London today. But this is of fairly recent origin. When it became the practice to have departmental legal advisers, the older and already existing departments, e.g.) The Treasury, and the Home, Foreign, India and Colonial Offices, the Boards of Trade, Customs and Excise, and Inland Revenue, etc., all had their own advisers, although the office of the Treasury Solicitor was housed in a separate building from the Treasury, the scope of its work greatly exceeding purely financial matters (in England the Treasury tends to be the repository of all government work not specifically assigned to other departments). At some point between the two world wars it became established that any newly created ministry or department (of which there are of course now many) would not have its own legal adviser, borne on its own establishment, but would be serviced by the Treasury Solicitor. This servicing, however, takes the form of legal officers posted by the Treasury Solicitor to work in the ministries or departments concerned, on a quasi-permanent basis.

15 See Mr. Cadieux ‘B paper at p. 34 of the publication.

16 All this emerges very clearly from the interesting paper contributed by Dean Sepulveda of Mexico, starting on p. 71 of the publication. In the old British Diplomatic Service it used to be the practice (and still possibly is in some countries—query, France?) for many members of the service to take a course in elementary international law and, on passing an exam, to receive a special annual allowance for knowledge of the subject. Dr. Parry, at p. 150, calls attention to this, saying that “ i t is impossible for anyone who has read widely in the Foreign Office Papers” (as he has in his capacity as Editor of the forthcoming British Digest of International Law) “to fail to be impressed by the very considerable expertise in international law, various of the rank and file of the Diplomatic Service have in the past possessed.” But now that everything is referred home, this has ceased.

17 This was the position of the U. K. Foreign Office Legal Advisers up to 1945. Originally, the Foreign Office, Diplomatic and Consular Services were all separate services under the Foreign Secretary. The first two were amalgamated after World War I, but the Legal Advisers remained “Foreign Office,” though usually given an acting diplomatic rank also. It was not until a fully integrated “Foreign Service” was created after World War II, embracing all the branches for which the Foreign Secretary was responsible, that the Legal Advisers were brought right in, at their own request, as opposed to becoming members of the home legal service, though working in the Foreign Office.

18 See in particular that of Mr. Cadieux, cited above, pp. 34-35.

19 As Mr. Merillat remarks at pp. 17-18 of his Report, with some very apt illustrations, what is simply a matter of routine international law for one country may, for local reasons or because of its stage of development, be a burning political question for another.

20 It is indeed worth speculating whether, provided there is an adequate home legal section, it might not be preferable to reverse the rôles and, instead of all the lawyers being diplomats, make all the diplomats learn some international law! As to this, see note 16 above, and Dr. Parry at p. 150 of the publication

21 See Mr. Merillat's Report at p. 26, and Dean Sepúlveda's paper at p. 76. The very full and most interesting paper contributed by Professor Takano of Japan also repays study over the whole range of this topic.

22 Loc. cit. note 2 above, pp. 655-657.

23 If it is asked why the legal adviser should be given better treatment in these respects than, say, a political or diplomatic (but non-legal) member of the departmental desk concerned, who also goes to the same conference or meeting, the answer is simple: the latter goes to about one such assignment for every three or four his legal adviser (who also advises other desks) goes to; and the latter endures this perpetual disruption of his home life over a total period of anything from 20 to 30 years, whereas for others a tour of duty at home is usually followed before long by appointment to a diplomatic post abroad.

* The writer was previously Chief Legal Adviser to the British Foreign Office from 1952 to 1960, having entered its legal service in 1929. From 1939 to 1943 he acted as joint legal adviser to the Ministry of Economic Warfare in London.