In this interview, theme section editors Yuan Yi Zhu and Tuuli-Anna Huikuri sat down with Professor Philippe Sands QC to discuss the current state of the 1945 settlement, the role of rising powers in the international legal order, and the place of theory in the study of international law.
Professor Sands is Professor of Laws at University College London and a barrister at Matrix Chambers. He has appeared as leading counsel in many high-profile international law cases, and is an experienced arbitrator. He is also a prolific author: his latest book, East West Street: On the Origins of Genocide and Crimes against Humanity (2016) was the winner of the Baillie Gifford Prize, the British Book Awards Non-Fiction Book of the Year, and the Prix Montaigne. A graduate of the University of Cambridge, Professor Sands was called to the English bar in 1985, appointed Queen’s Counsel in 2003, and elected a bencher of the Middle Temple in 2009.
STAIR: Many international legal scholars, yourself included, have pointed out the lack of justification under international law for the recent Western strikes on Syria. On the other hand, there is often a great of public pressure in favour of military intervention in extreme humanitarian crises, in spite of the international legal prohibition against the use of force. Do you think that international legal norms concerning use of force will need to evolve to accommodate such interventions if international law is to retain its legitimacy?
PS: In essence, the claim is that the international legal order of today, based on the 1945 settlement, is no longer fit for purpose. There is truth to that proposition. However, states have not been willing or able to make fundamental changes to that order. So we're in a dynamic of having a 1945 legal settlement in relation, for example, to the use of force, but with new conditions emerging. So how does international law evolve in the face of the inherent conservatism of states? Eventually, as values change, the law follows. We know that international law is not too good at moving in an evolutionary way in the face of changes. It tends to follow, rather than lead. Right now, I don't think international law is likely to evolve in ways that take account of new values and new considerations. I fear it will take a major conflagration to effect real change.
Interestingly, the U.N. Charter actually posits that tension between what the law allows and what people want. It contains rules on the use of force, on the one hand, and rules on the protection of fundamental human rights, on the other. And it was always known there was going to be a tension. That's why you have Article 2 paragraph 7 of the Charter. The way it was supposed to work was that the Security Council would take decisions, but in the present circumstances, where you have three permanent members generally on one side and two on the other with different perspectives, or vice versa, the system is blocked.
Ironically, we now hear arguments in this country in favour of a Uniting for Peace (U.N. General Assembly Resolution 377) type of approach to bypass the Security Council through the General Assembly. It is ironic because the UK, at this very moment, is arguing before the International Court of Justice that the General Assembly got it completely wrong when, by a very large majority, it referred to the ICJ the question of the Chagos Archipelago. I suppose it can be said that all five of the permanent members of the Security Council tend to adopt a self-serving approach. I don't draw easy moral distinctions between them; the arguments they make appear to be entirely suited to their own political dynamic and political direction. That is not to say that Russia is behaving impeccably, right now. It is not. But then again, is the United States?
That said, to take your point about humanitarian intervention, the rules put in place in 1945 were actually pretty sensible. Plainly, there is in some parts of the world a desire to allow the use of force to protect fundamental human rights when they are violated on a massive scale. And there was a disagreement as to the circumstances in which that should be permitted to happen. In 1999 there was a nudge in favour of a greater use of humanitarian intervention as a justification for the use of force, in relation to Kosovo. But that move was extinguished, at least for the medium term, by the Iraq War. We are now, because of Iraq, stuck in a moment where only in the most exceptional circumstances would human rights arguments be broadly recognized as allowing the use of force. Regrettably, it seems that in relation to Syria today this is not one of those moments.
On the subject of Syria, I noted with the apparent disconnect between the UK and the US. The UK at least made an international legal argument, although it's a pretty hopeless one. The Americans basically realized there was no argument to be made, so they haven't really sought to justify the attack in Syria on legal terms. Which is worse? Which is more problematic? Which is more dishonest? There's a decent debate to be had about that.
STAIR: We are now seeing rising powers such as China and Brazil becoming more involved in the development of international law. However, they have very different understandings of concepts such as sovereignty and human rights. Do you think this poses a fundamental challenge for international law?
PS: International law is a long game. When I was a much younger international lawyer, based in Cambridge, I had a fine colleague, Sir John Baker, who was professor of English legal history. I'd sometimes talk to him at lunchtime about what I was working on. And he would say to me something like: “We had that problem in English law in 1522 and it took us 250 years to sort it out”.
The only way one can maintain an optimistic disposition about the future of international law is by recognising that the structure that was put in place in 1945 could not be expected to effect an instantaneous change. It's a multi-century project: we are in the early Middle Ages for international law. You have to look not just ten years, but centuries into the future to see how this evolves. No doubt they will look back at our period, at some point in the future, and smile about the issues that we were discussing.
If you put international law into that broader framework, until 1945 states were more or less absolutely sovereign. They could do pretty much whatever they wanted to their nationals. That changed in 1945 and the struggle is still on. That's why we see Brexit – “taking back control”. That is why we see Trump – “making America great again”,. And it's no doubt why we see in China a move to abolish presidential term limits, contrary to the trend that was expected. It's about maintaining control in a world that seems frightening and uncontrollable. But international law is a history of a couple of steps forward, then a couple of steps sideway, then one backwards, then perhaps another forward. That's how international law is, and it's how international law will continue to be. Have low expectations, I say.
However, what's interesting right now is that you see the same states adopting different positions in relation to different issues. On the one hand, is there a country in the world today more committed to the rule of law internationally - and multilaterally - in the economic field than China? No, because China is greatly exposed economically. I've sat [as arbitrator] on one of the first investor-state cases involving a state-owned Chinese corporation, and I saw that Chinese company argue powerfully and passionately for the international rule of law. At the same time, I was counsel for the Philippines in the South China Sea arbitration against China and I saw the opposite. It’s not irrational behaviour if, when you see your interests as being served by the rule of law, you will push for that in the economic field. But if you see the international rule of law dynamic as undermining your ability to take sovereignty in the direction you want to take it, namely control of the South China Sea, you might adopt a different position. That's not necessarily an irrational stance. Every state has its internal contradictions.
It is also interesting to see that the two countries that did more than anyone else to put the 1945 settlement onto our international statute books, namely United States and the United Kingdom, have fallen off their perches. Both seem to be staring into an abyss. And the question arises: who will pick up the slack? The EU, to a certain extent, but it is weak. Germany has filled the gap to some extent, but it's not powerful enough globally. And I think the interesting question, beyond what China and Russia will do, is what the BRICs will do. Watch Brazil, India, South Africa as they move as middle powers in a world in which they can both see the attractions and perils of an international rules-based approach. So I think it's in a sense an exciting moment, but also a dangerous moment, for international law. I think we may be approaching a pivotal moment right now.
STAIR: You mentioned that Britain and America, which did so much to build the 1945 settlement, are retreating from it. Why?
PS: I wrote a book in 2005 called Lawless World. The starting point for the book is the Atlantic Charter, a remarkable one-page document which crystallizes that moment where Churchill and Roosevelt met off the coast of Newfoundland and decided to remake the world once the war is over. It was built on three pillars: prohibition on the use of force, self-determination (rights for people), and economic liberalisation. Those were the pillars of a legal order. It's beautifully crisp. It's simple. It has a clarity to it, and it provides a reference point for right now: who's going to produce the new Atlantic Charter for our period? It's not immediately apparent.
Why did Britain and America fall off their perches? They overreached in 2003, and they did so in circumstances in which they were no longer able to impose their will. And that happened in part because they adopted contradictory stances in relation to their commitments to the rule of law in those three domains.
If you move forward from the Iraq moment to today, there could be a common connection between Brexit and Trump, and it concerns a perception of a decline in power. In the United States, the common theme of President Trump’s “policy”, if it can be called that, is the move away from a multilateral approach to a bilateral approach. The reasons behind the change are obvious: if you take the Trans-Pacific Partnership, the reason they don't like that is they got 10 partners who gang up together and get a better deal, so the United States would rather have 10 free trade agreements than a single TPP and the 10 have said no, we are sticking together. And they are right. The same thing happened in the South China Sea case. China has a divide and rule policy. It doesn't want to address these [territorial] issues in a multilateral forum. I think for the United States, in the face of declining economic and political power, the move from the multilateral to the bilateral is about retaining political leverage. It's about power.
For the United Kingdom, it's more complex. There’s a sense of nostalgia, some sort of a desire to imagine a return to a world in which the sun never sets across the empire. Dreams of a new relationship with the Commonwealth. It is completely delusional. Britain is not a major power anymore. Not in military terms, not in economic terms, not in political terms. Many political leraders in this country are having trouble coming to terms with that. Brexit offers some sort of illusion, of the possibility of a return to something else. I think those people are likely to be very disappointed.
There may be common themes for the similar types of approaches that the United States and the United Kingdom have been taking, but the underlying rationale is different and they are motivated by different perspectives, because the two countries are in different stages of their development. The United States remains a global power. The United Kingdom is not. And, to come back to the settlement of 1945, is it not slightly absurd that the United Kingdom and France are permanent members of the Security Council? It's understandable they don't want to drop off. But so long as they stay on, you're not going to have, within the Security Council, a truly effective model for dealing with the kinds of challenges that we face.
STAIR: There has been much discussion within the academic literature about whether there is currently a backlash against international law, and its implication for international law’s future. Do you think such theorising is useful? And do you think that there is a difference between how academics and practitioners view the matter?
PS: I tend to be sceptical about grand theories on the future direction of international law. Its future direction will turn on the confluence of perceptions about interest. To the extent that there is a grand theory that could be applied, it's a rather simple one that looks at the economic and political interests on a range of issues in which those who exercise power say to themselves “is it in our interests to proceed in this or that direction when it comes to international law?” What I'm much more interested in are minute details that illustrate why people do things, because the state is not, as such, a real functioning entity. A state is no more than the sum of people who happen to hold power at a particular moment, within that state.
If one comes back to the South China Sea arbitration, why did China not participate? We know there was a difference of view, that in the Ministry of Foreign Affairs, and amongst Chinese scholars and legal practitioners, there was a keen desire for China to participate. It had good arguments. It should have made those arguments in the international domain. But that desire was extinguished at the highest political level in China, for different reasons. So if you're going to try to understand China's decision at that particular moment, you have got to unpack the reality of the decision-making process at the domestic level to see ultimately who took that decision, and why. Why did the Chinese premier take that decision? I don't know. What I do know is he rejected the advice of legal advisers and took a different approach to China's engagement with international law in that domain. But he appears to have taken a different approach when it comes to WTO law, investors-state agreements and investor-state dispute settlement. How do we explain the difference in the approaches that he took? I don't think any grand theory can explain that. We want to get into the mind of the Chinese premier and understand, at a particular moment in time, why he jumped one way on one thing and another way on another thing. I'm not saying it’s irrational, but I am saying it turns largely - but not exclusively of course - on the predispositions and desires of individual decision-makers.
I am a legal practitioner. I see how states take decisions and when I'm asked why did the state decide to go in that direction, what you're really asking is why did the prime minister or other person in authority decide to go in that direction. Why did the president decide to go in that direction? Why did the agent in a particular case before in particular court decide to go in that direction? The individual is emblematic of the state but the state doesn't, as such, exist, not in a decision-making sense. As was famously said in the Nuremberg Trials, states don't kill people in large numbers, individuals do. Well, in the same way, states are merely vehicles through which individuals act, and make international law. Individuals make international law. But I'm very much more interested in the psychology of decision-making at particular moments rather than in the international relations-style grand theory of how we explain certain trends and directions.
That may be because I'm influenced by what I see in the courtroom and in intergovernmental negotiations, where the human component can be absolutely critical. I suspect we're seeing that right now in relation to North and South Korea. Is there a grand theory that explains why these two countries are now talking? I've not seen it. There are a series of factors that have influenced leaders of those two countries for a whole range of complex reasons to decide that this is the moment they both want to talk. Who knows what direction it will take. But I don't believe there's a grand theory that can explain the North Korean moment right now.
That’s the essential thesis of East West Street, to the extent there is one: individuals make a difference. If you get into the minutiae of a single trial you will see that with international judges. Judges, believe it or not, are also human beings. They come to sit on a case with their own baggage, prejudices, and ideas. They don't operate mechanically according to some grand theory. I see this as an international arbitrator on investor-state cases. I look back and try to understand why I will go in one direction rather than in another one, at a particular moment in a case. It could be the tiniest point of detail on a factual matter, or on a legal argument, that influences me, or counsel for one of the parties has persuaded me because they have made the argument particularly elegantly. I can't explain easily how it is that my decision-making cuts in a particular way.
STAIR: Finally, do you have any thoughts about the role of international law within the broader public discourse?
PS: I was really struck, back in February 2003 when I went with my family on the march against the Iraq War, to see hundreds of thousands of people marching with banners calling for respect for international law. I thought that to be an anthropologically interesting moment. Similarly, if you had asked me two years ago whether a book that I’d written on the origins of genocide and crimes against humanity would sell hundreds of thousands of copies, I would have said no, you are ‘barking’. The fact that it has attracted so many readers suggests there are plenty of people out there who are not international lawyers or international relations theorists, but who are nevertheless interested in this thing called international law, which offers for them a hopeful alternative way of dealing with the world. Maybe we should think of international law as a sort of minor - but growing - religious order.
One aspect is clear: we international lawyers spend far too much time talking to each other and not enough time talking to others, across the disciplines, but also with the grand public, as the French like to refer to the intelligent general public that is out there. I am quite sure we international lawyers need to do a much better job of explaining to these audiences what it is that we do, what exactly happened in 1945 that was so significant, why its worth preserving, and the challenges that we face going forward.