International Law’s Impartiality – Myth and Reality

Editor’s note: This post is a reaction to Frédéric Mégret’s article issued last week by the European Society of International Law – ESIL Reflection: In Search of International Impartiality.

Frederic Mégret offers us many questions about reconciling the project of international law with notions of impartiality. As he recognizes, impartiality is a multi-faceted concept, and our expectations for impartiality of various participants in the international legal process cannot be uniform. Mégret forces international lawyers to think hard about our biases as we “do” our lawyering. But impartiality needs to be broken down a bit more, and its institutional aspects made clearer. When this is done, some of the dilemmas and contradictions he identifies seem like less cause for existential worry among international lawyers.

Of the many ways to look at impartiality, two seem most relevant to the international lawyer.

First, there is the very general notion of impartiality as acting in a way in which we treat like cases alike: in this sense, impartiality is equivalent to the most minimal form of justice as recognized by both H.L.A. Hart (The Concept of Law, 3rd ed. (2012), p. 159) and R.M. Hare (Moral Thinking: Its Levels, Methods, and Point (1981), p. 157). This is in a certain sense the ideal of all law, domestic and international, and those who administer it.

Second, impartiality can equate with a general even-handedness and respect for the positions of two or more sides or claimants, up to the point where fidelity to other obligations – like the law – may require acting in favor of one side’s position. This sort of impartiality is expected of decision makers charged with applying the law, judicially or otherwise.

Beyond these two conceptions is the idea of impartiality at the centre of contemporary debates in moral philosophy. The impartial standpoint is one in which one’s connections to particular groups or people per se are not per se relevant to one’s judgments or actions, although such ties can be relevant if they can be justified from an impersonal standpoint. All three conceptions see impartiality as basically about not playing favorites. But of course what counts as impartial conduct depends upon a thicker theory of morality or rules of law.

We cannot expect impartial behavior to go much beyond these notions. It cannot mean that an individual represses his or her background, education, life experiences, and other personal attributes and becomes an automaton. It’s a nice rhetorical point to say that nobody can be impartial in any of the three senses above, but it’s not useful for helping individuals sift through what should count in their capacities as lawyers, friends, citizens, or family members. (Indeed, within moral philosophy, eliminating consideration of our personal connections is often criticized based on the disconnect between such reasoning and the human experience.) The Archimedean analogy works for geometry, but not law.

Thus I see no inherent conflict between the demands in the UN Charter for geographic diversity within the Secretariat and the impartiality expected of international civil servants. One’s national origin does not constitute an impassable bar to either of the first two versions of impartiality, i.e., to open-minded examination of the facts, and trying to treat like cases alike, including by appreciating relevant differences when applying a legal rule. Anyone who has worked in an international organization knows of the socialization process among civil servants where, over time, national identities fade in importance compared to one’s commitment to its mission. The proof of such an understanding of impartiality are the outliers – the officials there to do their home state’s bidding. The same goes for international judges. Yes, the line between a judge’s perspective based on his or her nationality and a lack of impartiality may at times be thin, but we can recognize when the judge has crossed it.

The international civil servant’s duties of impartiality have long been understand in accordance with the second notion of impartiality – that one is not acting partially if one identifies and condemns conduct that violates the rules promoted by the institution. As Dag Hammarskjold said in his 1961 Oxford speech, “The international civil servant cannot be accused of lack of neutrality simply for taking a stand on a controversial issue when this is his duty and cannot be avoided.” (‘The International Civil Servant in Law and in Fact’, in Servant of Peace (1962), p. 348). So peacekeepers can be impartial and still react to violations by one side. As for the ICRC’s apology for its silence during the Holocaust, mentioned by Mégret as a recognition of the limits of impartiality, their belated change of heart was not based on a new view of impartiality (for the ICRC routinely criticizes states privately for IHL violations), but rather of the shortcomings of confidentiality.

Our expectations regarding political bodies are different, although impartiality in the first sense can be a tool by which to judge them. When an organ has a mission to make determinations for which we have some generally understood legal definitions – aggression, gross violations of human rights, violations of diplomatic immunity – and it repeatedly condemns violations by some states but not by others, we can say that institution is not acting impartially. So the practice of the Security Council, the General Assembly, and the Human Rights Council is riddled with instances of partiality. We shrug our shoulders because we know this is inevitable, but we recognize that the credibility of even a political organ must turn on some sense of treating like cases alike.

Mégret’s piece seems to assume a particular role for international lawyers – that we are supposed to administer the law. This limited notion of the lawyer sets up the questions of how impartial lawyers can be and a dichotomy between international lawyers with an “ethos of detachment” and those with an “ethos of commitment.” But when we look at what international lawyers actually do, the picture is more subtle.

Compare the lawyer within OHCHR and the UN’s Office of Legal Affairs (OLA). Each is competently trained and yet enmeshed within an institution. Each can write a confidential memo on, let’s say, the state of international law on same-sex marriage, one to the High Commissioner and one to the Secretary-General. And each might well reach the same conclusion using a positivist or formalist methodology. In that narrow function, they adopt Mégret’s “ethos of detachment.”

But suppose the OHCHR lawyer is asked by the High Commissioner to examine a draft Human Rights Council (HRC) resolution on LGBT rights drafted by Brazil, while the OLA lawyer is asked by the Secretary-General to review a similarly worded draft General Assembly (UNGA) resolution, in each case to see whether the resolution in question deserves his or her support. Will both lawyers advocate the same position on the attitude their client should take? We cannot assume so. The first will, I suspect, support Brazil’s forward-looking HRC resolution; the second might end up saying that nothing in the draft UNGA resolution justifies objection by the Secretary-General, but no more.

The “ethos of commitment” of the OHCHR lawyer is surely toward deeper protections for LGBT people. Mégret may see the OLA lawyer as adopting an “ethos of detachment.” But the OLA lawyer may just have a different ethos of commitment, e.g., to avoid putting the Secretary-General in the middle of a controversy at a particular time, or to preferring change through multilateral treaty-making. Neither, however, is partial when they play that advisory role. They have, rather, moved from providing a snapshot of the state of the law to offering advice on whether a draft resolution’s terms fall within an arguable interpretation of the law or, perhaps, will usefully advance the law.

Now expand that comparison to an NGO lawyer drafting a new treaty on LGBT rights. The lawyer is now acting as a participant in the prescription of law. She includes a clause guaranteeing a right of same-sex marriage. Is she no longer acting impartially? She obviously has the “ethos of commitment” – that’s why she is working for the NGO. But she could write the same confidential internal memo on the state of the law as the lawyers for OHCHR or OLA did, and her NGO trusts her to provide accurate legal advice on other questions too (e.g., the rules of procedure of the drafting conference). And lest we think the ethos of commitment is only about speaking against aggression or for human rights, the coal company lawyer opposed to a treaty on climate change is also expressing a commitment to prevent an injustice, as she sees it.

So the notion of international lawyers as “neutral arbitrators committed to deciding inter-subjective disputes in which international law has no particular stake” seems like a straw man to me. Law is always about advancing someone’s policies in an authoritative and controlling matter. Even the paradigmatic neutral arbitrator, the international judge, knows that international law always has a “stake” in the outcome of her decision, notably that her judgment will be respected by the parties and other audiences. But knowing these stakes, she can still act impartially in the first and second senses above.

Mégret rightly points out that claims of bias are often leveled against international lawyers from the worst of motives. After the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, of which I was a member, issued its report in 2011, the Sri Lankan government, whose hostility to the Panel was relentless, accused me of bias (video here at minute 4:15) – based on a distorted reading of one sentence in one of my books. On the other hand, I agree with Joseph Weiler that states have the right to complain if a member of a commission of inquiry is on the record with statements that suggest an appearance of partiality, even though those of us who know the person, or his reputation, may view him as impartial. We lawyers cannot always have it both ways – to offer authoritative sounding (but sometimes off-the-cuff) factual, legal, or political positions on the events of the day and then be appointed by the UN to examine those same events.

Whatever ethos they adopt in particular settings, many lawyers have no commitment to the law as it exists. Navi Pillay and Albie Sachs fought to change the laws of apartheid, and others the law on self-determination. Many recognize flaws in the law identified by feminist jurisprudence or TWAIL. Others make a lot of money representing their clients in order to change the law. So there simply is no necessary fidelity to the status quo, even though we may well see certain norms as just or otherwise worthy of support.

Do international lawyers have a commitment to international law as an instrument of social regulation? Of course we do. That implies a certain respect for process, but only up to a point. If that’s the “subtle and not-so subtle bias” of which Mégret speaks, it seems to have stretched the notion of bias too far. Do we think the law, or international law, is the best means of social regulation? I certainly doubt it for most lawyers. We rather seek legal solutions where needed, and support non-legal ones where they can better accomplish our policy goals, including that of a more just world.