International Law in the Early Days of Brexit’s Past

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Editor’s Note: This post is an adapted version of a short-piece prepared by the author for a policy-report by the think-thank Britain in Europe based at Brunel University London. The report will be presented on the 25th October at a high-level meeting at the British Academy and commented upon by Dominic Grieve, former attorney general of the United Kingdom (2010-2014).

Echoing a widespread sense of almost existential malaise across the ‘invisible college’ of public international lawyers regarding ‘Brexit’, Judge James Crawford of the bench of the International Court of Justice (ICJ), and until very recently the Whewell Professor of International Law at the University of Cambridge, offered a de minimis definition of international law in times of crisis at the opening ceremony of the 12th Annual Conference of the European Society of International Law (ESIL). International law, Judge Crawford said with a fine sense of irony, is ‘all that remains’ when ‘Brexit’ happens, or when Donald Trump wins the U.S.’ Presidential elections.

Internationalists by training and vocation, public international lawyers have not, for their greatest part, been too fond (to put it lightly) of the outcome of the Brexit referendum. But, is this gremial intellectual ‘malaise’ really justified from the perspective of the strictly professional academic interests of the UK academically-based ‘invisible college’ of international lawyers? After all, most international law scholars based in academic institutions across the UK received the news of the outcome of the EU referendum with, at least, a pinch of ironical relief at not having made European Union Law their life’s profession. The awareness that the UK was to be in an even greater need of international legal expertise in the years to come may have added further reassurance to those concerned by their job security and perhaps, overall their life-project in a country which, worn out by years of austerity, had just turned its back on what for all its flaws remains on paper the most advanced value-based and peaceful historical experiment of legal and political integration that a History littered with projects of conquests and subjugation of peoples in the name of religion, imperialist designs and totalitarian ideologies had ever witnessed. International law is, at the end of the day, ‘all that remains’ to replace the law of the European Union as legal vernacular for this country to lay new foundations of its ‘global’ legal relationship with the rest of the world. But, can the UK truly count on some sense of academic loyalty on the part of non-British UK-based international lawyers, many of whom, moreover, feel particularly estranged amidst an extended public rhetoric of ultra-nationalist overtones as EU nationals in a country that will soon not be part of the ‘EU family of nations’? What might appear prima facie to be a question primarily addressed to interrogate the theoretical possibility that many non-British nationals (both EU and non-EU citizens alike) would be rethinking pursuing their academic careers in British universities in a post-Brexit scenario, has, however, gained an unexpected, and slightly disquieting added dimension in recent weeks. According to the British media, indeed:

‘foreign academics from the LSE acting as expert advisers to the UK government were told they would not be asked to contribute to government work and analysis on Brexit because they are not British nationals’

The relevance of this added dimension to the question, although, perhaps, indicative of the secretive and strategic orientation with which the British government plans to carry the lurking Brexit negotiations with its soon former partners, may well be only  a passing fad, very much like one of the ‘flash-crashes’ of the sterling in the global financial markets, in the rhetorical ups and downs of the early days of Brexit’s past. In the meantime, the primary sense of the question remains however particularly relevant in view of the fact that a great many of the international law professors of international law, including some of the chair-holders of the most prestigious chairs of international law in this country, are non-British born nationals today. It is also pertinent because the professional human capital of international lawyers, as experts in the most global of all legal disciplines, is comparatively higher than that of their domestic counter-parts in other legal disciplines in our increasingly globalized academic legal market. Answering the question, requires, however to firstly understand the reasons why, in spite of the multitude of inconveniences that émigré international legal scholars face, the UK was until the announcement of the outcome of the EU referendum, an attractive place to develop an academic career in international law. These reasons can be classified for present purposes in five categories: the global influence of the English language as the main vernacular of international law; the prestige of the British tradition of international law; the hybrid intellectual position of the UK between the European and North-American approaches to international law; the liberalized and meritocratic British academic market; and, the relative low competition that the UK until recently faced from other countries regarding the recruitment of experts in ‘the law’, that as Mirabeau told us, ‘one day will rule the world’. These five reasons will be briefly examined in turn.

The English language has, indeed, long replaced French as the modern lingua franca of diplomacy and international law. Moreover, the most prestigious academic publishers of books and scientific international journals in all the various areas of expertise in the large intellectual archipelago of international law are still located in the United Kingdom. The role of English as the dominant modern lingua franca for international law translates into the common perception among émigré-international-law-scholars-to-be that English was a professionally conductive choice in pursuing their academic careers. Brexit will not mean a dramatic decrease of the use of English as the main vehicular language of international law in the medium term and, therefore, at least, from this perspective, the UK still remains an attractive place for international law academics. The prestige of the British tradition of international law before Brexit was another reason why the UK was an attractive place to develop an academic career in international law. As the just released ‘British Influences on International Law, 1915-2015’ published to commemorate the 100th anniversary of the foundation of the ‘Grotius Society’ in London, of which the British Institute of Comparative and International Law (est. 1958) is an offspring, shows, throughout the twentieth century, both British and émigré international law scholars, including a Polish-Austro-Hungarian-born émigré, who often passes for being the most acclaimed British international law scholar of the twentieth century, have profoundly shaped the study of international law world-wide. This influence has been greatly facilitated by the historical position of the UK as a great power throughout a great part of the twentieth century, the colossal extension of its former colonial empire, the super-power status of the United States and the accompanying use of English as the lingua franca for international law. The international prestige of this liberal and cosmopolitan tradition rests nowadays, however, partly on the shoulders of the multitude of non-British born and non-British citizens who nurture it through their academic production, their legal advising and teaching roles in delivering manifold undergraduate and post-graduate courses of international law all over the country. Many of them came to work and, often, also to live permanently in the UK, attracted by the fact that the British cultivation of international law has traditionally been intellectually positioned between the continental European and the North-American approaches and attitudes to international law. This intellectual cross-bred position, which is the third reason behind the traditional attractiveness of international law in the UK, may risk being affected if the UK, as the nationalistic overtones adopted by some politicians already anticipate, adopts an even more marked isolationist and a ‘national interest first’ approach in the managing of international legal affairs in the years to come. Whereas some British-born international lawyers may, out of their own national sense of patriotism, go along with a neo-conservative ‘Britain first’ approach to international law, those with a more internationalist value-system understanding of the meaning of patriotism in the second decade of the 21st century, will critically distance themselves from such an approach. Non-British nationals based in the UK are, on the other hand, likely to be very reluctant to serve as the hand-maidens of a foreign power which shall soon not be part of the EU family of nations. Moreover, a disconnection of UK-based international lawyers from their geographically-closer EU-based international law colleagues, many of whom work at the interstices of EU law and international law, risks creating both a sociological and epistemological gap in the relationship of the British invisible college of international lawyers with their EU-based counterparts in the years to come. Therefore, to the extent that the intermediate position between Europe and North-American approaches and attitudes to international law risk being seriously affected by Brexit, this will decrease the former attractiveness of the UK as a place to develop an academic career in international law.

The fourth broad reason why the UK was an attractive place to develop an academic career in international law in the UK before the outcome of the EU referendum is its liberalized and meritocratic, as well as its horizontal, academic structure, a cry away from other hierarchical academic structures in other more rigid and civil-servant oriented European traditions. Although these characteristics may not appear to be prima facie endangered by Brexit, the fact remains that they can suffer under straining conditions as those who have lived through the economic crisis in Southern European countries’ academic settings know just too well, in a less comparative well-funded academic market. Salaries decrease, merits are not rewarded, vacant positions are not filled up, new ones are not created, pressure increases on faculties to obtain external-funding and new top-down managerial structures put seriously in question the vaunted horizontal-based collegiality of the British academic system. Thus, maintaining a well-funded UK academic market, which requires the provision of extra UK tax-payers’ funding to replace EU sources of funding for international law projects, remains, now more than ever, a pre-condition for the UK to remain an attractive place for those wishing to develop an academic career in international law in the UK in the years to come.

This is even more so the case in the light of the fact that the relative closure, amidst a major international economic crisis, of other academic markets to both national and foreign academics, otherwise the fifth reason behind the attractiveness of the British academia for international law scholars before Brexit, is turning into an enhanced international recruitment competition for the services of the professionally and sociologically cosmopolitan group of international law academics. Contrary to the craft of their most domestic oriented counterparts in law faculties across the country, the academic craft of international law scholars is perfectly transferable to other geographical locations. Indeed, exactly the same academic syllabus for an international law course can be taught in Melbourne, Shanghai, Hong Kong, Doha, Cairo, Cape Town, Berlin, Geneva, Oslo, Rio, Buenos Aires, Montreal, Boston or Los Angeles. In its search for the best and the brightest in international law, the UK is already facing a growing competition from universities, among other regions, from Asia, particularly from Singapore, Hong-Kong and, increasingly, mainland China as well as from many EU countries where international law is, often, taught in English. Moreover, it is not unlikely that EU legislators will devise policies to lure back to the EU many of the highly qualified EU nationals who are currently employed across UK law schools, including international law scholars. In the face of greater academic recruitment competition for international law academics, who are professionally well positioned in an ever increasingly global legal academic market, the attractiveness of the UK as place for international law scholars to develop their academic careers is already decreasing.

In conclusion, because of the influence of their particular international legal expertise, and their close relation to the circles of international power, international lawyers who are often polyglot and cosmopolitan professionals who through their career may perform the interchangeable roles of inter alia professors and scholars, legal advisors to states, international institutions, NGOs or corporations, and international judges, are strategic key-players in global legal policy-making processes. If it is true, as Antonio de Nebrija, the author of the first Spanish grammar published in 1492, knew well, that ‘language has always been the companion of empire’, in our time, the language of international law is, more than ever, the companion of global influence. Today, when international legal expertise is dramatically needed by the UK for establishing, developing and maintaining a fructiferous new legal relationship with the rest of the world, the UK legal academy maintains some of the features that made it attractive as a place to develop an academic career in international law before the outcome of the EU referendum. However, some of these features are already losing, for the reasons briefly touched upon, some of their former splendor. The global influence of what is often referred as the British liberal tradition of the international rule of law, whose weight partially rests at present on the shoulders of many non-British-born and many EU nationals who live, teach and publish about international law in this country, will not be better off for it in the years to come.

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