The Duties of a Government International Legal Adviser

Although we may not like to be reminded of it, international lawyers start out as domestic lawyers. When being admitted to practice in a particular jurisdiction, we are taught that lawyers owe duties not only to clients, but also to domestic courts and the interests of justice (‘institutional duties’). These institutional duties are hierarchically superior: faced with a conflict between a client’s interests and the proper administration of justice, we must prefer the latter.

Yet when we become international lawyers and advise not only entities within a State, but the State itself, we are not told how these institutional duties apply – if they even apply at all. In fact, when acting for a sovereign in the context of its rights and obligations vis-à-vis another sovereign/s, the suggestion that we owe greater loyalty to some other entity or institution might well be viewed with suspicion. Equally, if we owe exclusive duties to the client, and merely serve as their agents, then this erodes the idea of an international legal profession.

This post explores this dilemma from the perspective of government legal advisers and argues that we owe institutional duties in our advising work. It also presents a suggested model for better understanding and framing the content of such duties.

Institutional duties: a refresher

In Rondel v Worsley, Lord Reid said that counsel have duties to their clients ‘fearlessly to raise every issue, advance every argument, and ask every question, however distasteful’. He observed, however, that this is checked by counsel’s institutional duties:

as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.

In practice, institutional duties mostly apply when dealing with courts. In New York, for instance, lawyers have a suite of duties connected to litigation, which include notifying a court of legal authority adverse to their client’s case and not encouraging a person to leave the jurisdiction so as to be unavailable as a witness (New York Lawyer’s Code of Professional Responsibility pp. 59 – 61).

Institutional duties also apply outside the courtroom. A senior Australian judge framed the duty to the administration of justice as one of ‘ensuring the integrity of the rule of law’, which she said applies just as much to practitioners whose work is non-litigious. Similarly, the IBA’s International Principles on Conduct for the Legal Profession (IBA Principles) refer both to lawyers’ duties to the court and to the ‘interests of justice’ (Principle 5). The Commentary to the IBA Principles elaborates that ‘[l]awyers must not engage in, or assist their client with, conduct that is intended to mislead or adversely affect the interests of justice, or wilfully breach the law’. It further notes that the lawyer’s role is, among other things, to ‘further the development of the law, and to defend liberty, justice and the rule of law’.

Institutional duties for international lawyers?

Institutional duties clearly apply to the work of international lawyers when appearing before a domestic court in their home jurisdiction or in a foreign domestic court (in which case, according to the IBA Principles, duties from both the home and foreign jurisdictions apply).

There are also certain institutional duties incorporated in the rules and practice of international courts and tribunals. Unlike the institutional duties outlined above, these duties are created and enforced by international institutions as opposed to domestic institutions. The International Criminal Court, for instance, has a comprehensive code of professional conduct. Additionally, certain of the International Court of Justice’s Practice Directions are based on the ‘sound administration of justice’ (Directions VII and VIII).

Beyond this limited patchwork of responsibilities, however, there is little guidance on whether and how institutional duties apply to the core legal advising (non-litigious) work of international legal advisers.

We know that international lawyers should respect norms other than their clients’ interests. As Richard Bilder has argued, the international legal adviser is not an ‘apologist’ or ‘hired gun’ for the State. But the source and content of such norms has remained abstract and practitioners have largely avoided the term ‘duty’ in favour of safer and more subjective nomenclature (an exception is Harold Koh’s ‘duty to explain’). For instance, Elizabeth Wilmshurst has said that ‘the legal adviser should reflect a responsibility to the international legal system as a whole’ (emphasis added).

Even if it were assumed that the non-court institutional duties discussed above apply to international lawyers’ advising work, those duties – as traditionally conceived in the domestic sphere – may be insufficient. As Sir Michael Wood has written, international lawyers have differentiated responsibilities from the domestic lawyer on account of (i) the absence of an international legislature to ‘develop or correct the law’; (ii) the fact that States directly shape the development of the law through opinio juris and state practice; and (iii) the lack of international court with compulsory jurisdiction and the concordant reduced prospects of accountability for international wrongs.

In the context of the UK Iraq Inquiry, Wood spoke to the effect of the absence of a court on the legal adviser’s institutional duties (Report of Iraq Inquiry vol. v, para. 391):

…because there is no court, the Legal Adviser and those taking decisions based on legal advice have to be all the more scrupulous in adhering to the law … It is one thing for a lawyer to say, ‘Well, there is an argument here. Have a go. A court, a judge, will decide in the end’. It is quite different in the international system where that’s usually not the case. You have a duty to the law, a duty to the system. You are setting precedents by the very fact of saying and doing things.’

A way forward

In order to advance the profession’s understanding of the application of institutional duties outside practice before international courts, we first need to acknowledge that these duties do in fact apply to advising work.

It is surprising that practitioners have not linked international lawyers’ professional responsibilities to the duties applicable in domestic systems to ensure the integrity of the rule of law and respect for the interests of justice. Such a link should be established.

Unlike ICJ or ICC practice rules, these institutional duties do not clearly derive from an international source. However, it seems at least arguable that international lawyers’ respective domestic institutional duties could serve as a source. If this were accepted, these institutional duties would be a variant of existing domestic obligations, appropriately tailored to the unique character of international legal work. This would mean international lawyers’ duties had different origins, but the interpretation of the duties could be informed by international practice, thereby leading to a common, cross-jurisdictional understanding of their content.

While this is not the place to present an exhaustive position on the content of international legal advisers’ institutional duties, a potential model for future discussion and debate could be based on duties to present, promote and protect international law. These could be understood as follows:  

1. The duty to present is the requirement to provide States with honest and accurate advice on their international legal rights and obligations.

Daniel Bethlehem said that legal advisers are the ‘guardians’ of the ‘bright lines of the law’, but that those lines ‘have a more pixelated quality’ when brought into sharper focus. This duty is about presenting the best interpretation of the law – the right pixel – in circumstances where it is the legal advisers’ role to enable and assist a State to implement its policy priorities. Wilmshurst captured the duty in action when she observed that the imperative for legal advisers to provide policy views intermingled with legal advice means that they should ‘not…dress up as law what is really advocacy’. 

2. The duty to promote is the requirement to encourage States to comply with international law.

The content of this duty could reasonably be debated, but it seems that at a minimum it precludes counselling the State to violate international law. This applies even where the relevant conduct might otherwise be considered legitimate or where there would be no legal accountability for unlawful behaviour. But the duty can also assist in resolving less straightforward questions, including the conundrum raised by Wood of whether to wait to be asked for legal advice as opposed to taking the initiative and engaging in ‘aggressive legal advising’ (Wood prefers the latter).

3. The duty to protect is the requirement to preserve and develop the role of international law in international relations.

This duty is about ensuring that international law and the institutions that generate and enforce it remain a central element of foreign policy decision-making. It contains both a negative aspect – to prevent erosion, and a positive aspect – to ensure international law remains relevant in international relations. The negative aspect may come into play, for instance, when a legal adviser counsels a government on the risks of withdrawing from a treaty or an institution that provides international accountability. The positive aspect arises when the legal adviser promotes using or developing international law and its institutions, for instance by negotiating a treaty to address an emerging issue of concern. Of course, there are times when it will be appropriate for a State to denounce a treaty or to maintain normative ambiguity, but the duty to protect is about the lawyer ensuring such decisions account for any associated institutional or system risks.  

There are few public examples of how duties to present, promote and protect are applied and enforced. Given the confidential and privileged nature of government legal advising and the absence of any institutional framework to ensure implementation, this is unsurprising. However, as illustrated through the Iraq Inquiry’s detailed examination of the facts surrounding the UK government’s legal advice on using force in Iraq, institutional duties can and do shape the way international legal advisers approach problems. And, as evidenced by that inquiry, the approach taken can be subject to retrospective scrutiny – albeit on an exceptional basis.

Conclusion

International lawyers have responsibilities to international institutions that sit alongside their client duties. And yet practitioners have paid little attention to the character, source and precise content of these responsibilities. This post argues that international legal advisers owe institutional duties in their advising work, and presents a potential model for understanding and framing the content of such duties. Although these arguments are preliminary, it is hoped that they will stimulate a richer debate on an issue that goes to the very heart of international law advising as a profession.

Post-script: Given the common law approach to understanding institutional duties, comments from international lawyers with a civil law background are most welcome.