Source: ITLOS Photo, taken from the International Tribunal for the Law of the Sea Photo Gallery.

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“I resigned because Russia had become an absolutely indefensible client”

An Interview with Alain Pellet

04.07.2022

“International law is what international lawyers do and how they think.” claims Mr Martti Koskenniemi. Given the minimal formal regulation of counsel and the absence of a code of ethics in international law, the understanding of what practising international lawyers are and what role they play varies widely (see only here, here, and here). In March, the international community witnessed two public resignations of acting counsel: in two open letters addressed to the respective States, Mr Alain Pellet resigned as counsel for Russia and Mr Paul S. Reichler terminated his counselling relationship with Nicaragua. These decisions raise broader and fundamental questions about the role(s) of practising international lawyers. Although we do not agree with all points he makes, we believe Mr Pellet’s answers in this written interview are very insightful to the international law community.

 

Mr Pellet, what are your thoughts on the role of practising international lawyers? Are counsel mere “interchangeable” instruments to further the interests of their clients – “guns for hire”, – separated from concrete struggles in law and in fact, not responsible for those affected by the outcome of legal proceedings? Or, on the contrary, are they protagonists in the international legal forum, those who speak international law?

No one is indispensable, but that does not mean that we are ‘interchangeable‘: precisely because international law, like any branch of law, leaves a margin of appreciation to interpreters – maybe even more so since, in many fields the rules are more incomplete and uncertain than in domestic law. That said, I fully agree with Mr Martti Koskenniemi who wrote that to work with very general principles of law “involves acknowledged uncertainty, as well as semantic and evaluative indeterminacy.” But this is certainly not a sufficient reason to proclaim that “no middle position is available”. Simply (1) the degree of (un)certainty of rules and principles may – and does – vary, which means that the degree of tolerable subjectivity when a decision is made will vary too; and (2) of course, the more the law is “imperfect” or “incomplete”, the greater the subjectivity of those in charge of applying or interpreting it. No more, no less.

That said, frankly, I do not share Mr Koskenniemi’s obsession that international law is purely subjective. But this indeed does not mean that international law is not “real” law. However, paradoxically, it is probably the branch of law in which one category of lawyers – the judges lato sensu, including the arbitrators – has the greatest influence in crystallising and completing legal rules. It is paradoxical since “[i]n the international field, the existence of obligations that cannot in the last resort be enforced by any legal process, has always been the rule rather than the exception” (ICJ, South West Africa, 1966, par. 86). But international law is not what I want it to be, it is what I can deduce from existing “sources” (I still think the notion is quite insightful, see my commentary to Article 38 of the Statute of the ICJ).

And of course, when the counsel’s subjectivity is concerned with their background, doctrinal views, political ideology cannot but play a role in her/his way of interpreting and applying the law. But this is not that important when a lawyer acts as counsel: contrary to a judge, an arbitrator or a professor, she or he is not supposed to be “impartial”, but to present the best argument for her/his client. Therefore, I don’t think we can really describe ourselves as “speaking international law” and I think that this very expression is misleading in that it seems to imply that there is only one legal truth. That may be the case sometimes, but most of the time things are more complicated, and the virtue of the principle of adversarial proceedings is to enable the parties to express themselves, but also the judge to find his/her way to the „judicial truth“.

I use to say that we are “mercenaries” – in that respect, we are at the service of our clients and when we accept retainer, we are “guns for hire”, which means that we receive instructions, and must be aware of the political constraints of the client. But dialogue is not a one-way street: we owe the client the truth (and in this respect, a little dig at my Anglo-Saxon colleagues: on the whole – there are exceptions – they tend to go a little too much in the direction of what the client expects of them).

In your experience, how significant is the influence of counsel pleading in international courts – their choice of arguments, their socio-cultural background, but also precisely their personal understanding of the role of counsel and their ethical boundaries – on the judicial outcome? And, as you argued yourself “it is very interesting to use the pleadings before the ICJ or elsewhere to establish opinio iuris (…) I think it is good evidence of opinio iuris”, how significant is the influence of counsel on international law as such?

As a matter of fact, counsel only speak on behalf of the State they represent and under the constant supervision of the Agent who, alone, represents the State before the Court (see Art. 42, para. 2, of the ICJ Statute). This means that when advocates take the floor before the ICJ (or other international tribunals), they convey the views of the State (usually carefully debated within the Legal Team which includes representatives of the Government) on the legal rules to be applied; in other words, they express the individual opinio iuris of the State. And this is even more true given that both State officials and counsel would usually take great care not to jeopardise other related cases, issues or positions.

The remark you quote is perhaps more from a professor than an advocate. As such, I am probably more interested in ‘advancing’ the law than ‘pure’ barristers, and I have to confess that, in at least two cases, I have even pushed a State to bring a case before the ICJ in the hope that important points of law would be settled (obviously also in the belief that the State in question would mainly win is case).

That said, the actual influence of counsel can only be measured by the decisions of the court or tribunal before which they have argued: if their arguments are reflected in the judgment or advisory opinion when they concerned controversial points or, even more so, if they contributed to a change in a jurisprudence constante, it can be presumed that they have had an influence on the case law – and indirectly, given the influence of the latter, on the evolution of international law.

To move now to your open letter announcing your resignation, you wrote: “lawyers can defend more or less questionable causes. But it has become impossible to represent in forums dedicated to the application of the law, a country that so cynically despises it.” Mr Reichler stated that his “moral conscience” dictated him to cut ties with his client.

Despite the absence of an international code of ethics, is there a measure for when counsel can and cannot defend “questionable causes”? And given that you had an exchange with your Russian clients on the “limits not to be crossed”, is there a certain “red line” in defending questionable causes? When you say that it “has become impossible to represent” Russia in forums dedicated to international law, do you imply that in the face of a State’s blatant, systematic violation of the international rule of law and given the discussed influence of counsel on international law – there might be a certain duty to resign? Mr Charles Sampford, for instance, seemed to consider that there are certain limits for counsel, such as when the client does not intend to recognise the court’s jurisdiction.

I indeed do not share Mr Sampford’s position. For two main reasons: First, it is a radical way of trying to “improve” the rule of law at the international level but it clearly contradicts the still fundamental principle of consent to jurisdiction in the international field; this is hopeless for the time being and it is not up to lawyers – when acting as counsel – to act as activists (even though activism as such, when it is for good causes, is perfectly respectable. Second, counsel are supposed to defend the best interests of their clients and they would lose any credibility if they were compelled by law to take the position that the State they advise has no choice but to go to court, in the absence of compulsory jurisdiction.

Therefore, the red line is certainly not between the willingness or unwillingness of a State, a potential client, to accept the jurisdiction of the ICJ or any other tribunal. The real questions are elsewhere. I think they are twofold: First, are you ready to serve a dictatorial regime (which, by definition, violates e.g. human rights)? Second, are you ready to defend an indefensible cause?

From my point of view, both questions are often intrinsically linked and there is no categorical answer.

To the first one, I have several times answered negatively – although sometimes, for “extrinsic“ reasons, I finally resigned myself to eventually accept retainer even though the regime was far from commendable. In these cases, I considered that the case was morally well-founded or at least “neutral” – maritime delimitation for instance – or even at the insistence of a good friend representing the State in question, or a combination of these factors. It can also happen that when you are proposed to act as counsel, the regime was acceptable and goes wrong.

As for the second question, I think that, generally speaking, the chances of winning (or the risks of losing) a case should not be a factor in whether or not one accepts to join a counsel team. On this point I agree with Mr Sampford’s implicit assumption that States should be helped to resort to an international court rather than to force or letting a case fester indefinitely. The important thing is not to mislead the State seeking your services and to be clear and honest about the risks of a legal settlement; and I have often been overly pessimistic and eventually noted a case was won beyond my expectation.

But there is more to life than law, and lawyers are human beings with their own personal values, beliefs and morals and, as there are no legal criteria, the answer to the above questions depends on these values, which are eminently subjective. I agreed to plead on behalf of Myanmar (admittedly at a time when the country was gradually emerging from military dictatorship) in a maritime delimitation case before ITLOS; I refused to represent that country in the Rohingyas case before the ICJ.

Specifically, with regard to my resignation from the team advising Russia in the UNCLOS Annex VII arbitrations and before the ICJ, when I was hired I was not aware of the degree of personal dictatorship that country was sliding into. As for Crimea, I was – and remain – convinced that, in its majority, the population of the peninsula felt more Russian than Ukrainian. I also believe that if Russia had proceeded differently, by holding an honest referendum under international supervision, the international community and Ukraine would have had to fold in the end – even though, the case was hardly tenable in legal terms (as I had written in Le Monde well before my recruitment by Russia). Moreover, it was clear that the annexation itself could not be the subject of any judicial decision for lack of Russian consent to jurisdiction. As for the discrimination case, I remain convinced that it is an abusive pretext, as is usually the case. On the other hand, I had indicated from the outset that I would not plead in the Financing of Terrorism case, and it was only because Ukraine, contrary to all expectations and very artificially, brought a joint application on these two unrelated issues that I remained on the Russian pleading team.

The war against Ukraine has changed the situation. The true face of the Russian dictatorship has revealed itself in all its magnitude. Far from attempting to seize Russian-speaking (and probably Russophile) regions of Ukraine, it is a case of outright aggression – in other words, a crime against peace, the very negation of the international legal order. As much as one could hope that Russia would, willy-nilly, respect or at least be influenced by the judgments and rulings in the „Crimean“ cases, such a hope is completely vain today. Russia is no longer committing isolated violations of the rules and principles of international law; it has outlawed itself.

One final note, however: I was pleased to see that all my colleagues involved in interstate cases have also resigned and that a large number of law firms engaged in investment litigation have done the same (and I indulge myself in thinking that my „open letter“ played a role in this very broad movement of disengagement by Western lawyers). However, I am convinced that a code of ethics has no say in such matters. It is much more a matter of individual morality than of professional ethics.

As mentioned above, you label Russia’s behaviour in your open letter as “cynically” despising international law. The phenomenon of cynicism in international law has been subject of academic debate, including precisely in the context of international law as a profession. According to Ms Heike Krieger “[t]he label cynical may have a strong rhetorical impact that serves to delegitimise an actor or a practice, but it does not sufficiently contribute to an analysis of international law’s specific shortcomings”. How would you then define a cynical practice of a State in international law?

First of all, I am one of those who disapprove of extreme critical doctrines and consider that cynicism is a way of inviting more cynicism, as I tried to show in my General Course on International Law at the Hague Academy (especially pp. 137-150). This allows some academics to shine intellectually, but does not achieve much. Conversely, I disapprove of academics who use their scientific work to ‚advance‘ the law by mistaking their wishes for realities, as do those I call ‚human rightists‘; and it is even worse when it is a judge at the ICJ.

That said, I agree with Ms Heike Krieger’s analysis that the use of the word „cynical“ is not of great interest for a deeper analysis of international law (hence my scepticism about the interest of several chapters of the book you mention and which I have read on Cynical International Law?). It is, in fact, purely rhetorical: international law is no more „cynical“ than any other branches of law: it is, like them, the result of power relations – which does not prevent it from serving in the everyday life of international relations as a factor of appeasement and a considerable commodity (pp. 32-53). If one accepts this premise, the best „cynical“ analysis of international law that I know of is Guy de Lacharrière’s remarkable book on La politique juridique extérieure, unfortunately not translated into English; but perhaps it is more appropriate to speak of „realism“ rather than “cynicism”.

When it comes to denouncing the cynicism of a State’s practice, the word does not seem to me to have a very precise legal connotation. It has, in fact, „a strong rhetorical impact that serves to delegitimise an actor or a practice„. And that is how I used it to denounce the Russian aggression in Ukraine – which I find difficult to describe as anything other than „cynical“ in the usual, political and moral sense of the word.

Having tried to examine whether and where there is a “red line” in defending a State and to define the term “cynicism” in international law, we would now like to move on to a specific point of criticism. International lawyers from Ukraine and elsewhere have understood your open letter to legitimise Russian actions abroad, relativise their consequences for the population, distort Crimean history, and diminish resistance (“marginal”) – prior to the armed invasion in 2022.

It could be argued that Russia already crossed the “red line” with, for example, the annexation of Crimea in 2014. Since your open letter indicates that you are defining your role as counsel as being delimited by ethical boundaries, the choice of timing of your resignation might be interpreted as legitimising past Russian actions and thus, “cynical” itself. How would you respond to this?

I had debated whether to respond to these criticisms and finally decided not to. I felt it was inappropriate to appear to either disavow my earlier positions by saying all the bad things I think about the Russian behaviour, or to appear to be trying to defend myself at all costs for having represented Russia. And I don’t want to do that here either, beyond what I write above in response to your third question.

I just want to add something: when counsel are defending a State, they do not accept the version of the facts that the State offers and they insist that all available documentation (whether held by the client or available on the internet) be used. I must say that I was familiar with almost all the writings mentioned in the references in your question (except for the tweets – I don’t tweet): these writings seem to me as biased in the opposite direction as the documents my „Russian friends“ made available to us at the beginning of the cases.

To draw this to a close, with these two public resignations within a short period of time, and with a number of cases involving Russia and Nicaragua, do you think that more resignations will follow? Could this become an increasing practice among counsel? What would be the consequences for litigation before international courts?

Honestly, I do not wish that this happens too often!

I think that both Paul Reichler and myself resigned under different, but rather exceptional, circumstances.

I have resigned – and encouraged my co-counsel to resign – from the Russian cases because its aggression on Ukraine seems to me to have made Russia an absolutely indefensible client in cases which were in my view defensible. As a reminder: none of the cases brought before the ICJ or arbitral tribunals by Ukraine directly concerned the annexation or “reintegration” of Crimea (see e.g. the 2020 Award in PCA Case No. 2017-06) and, as I said, after my article in Le Monde, I could certainly not have represented Russia – see above my answer to question 3 – if it had been so). My resignation – like those of my colleagues, I believe – should simply be compared to the withdrawal of foreign investors from Russia or the boycott of the sports world: it is the result of sheer human indignation and I wonder if much can be drawn from it in legal terms.

Now, although I too am counsel for Nicaragua before the ICJ and am quite critical of the turn the regime has taken there – especially considering that it was the same leader who put an end to the dictatorship of Somoza, as Paul Reichler recalls in his remarkable letter – I have decided not to resign from the Nicaraguan Team, mainly for two reasons: First, contrary to him, I do not have, and never had, any political involvement with the Nicaraguan Government. Second, I have pleaded in 13 cases on behalf of Nicaragua and I never had any hesitation as to the morality of the cases themselves.

To that, I must honestly add that Nicaragua is not a “usual” client for me (see my articles “The Nicaragua case” and “Introduction from the Podium”): it was the one who gave me – together with Burkina Faso / Mali – my first opportunity to plead before the Court. Gratitude too is a human feeling.

That said, resigning from a Pleading Team is not an easy decision to be taken: in a way, you are betraying the State that trusted you, and you really need very serious reasons to put an end to the ‘investment’ it made in recruiting you. Basically, it must have betrayed the trust you placed in it. I consider the war in Ukraine to be well within this threshold.

 

 

Editorial disclaimer: The views expressed in this written interview are solely those of the interviewee and do not necessarily reflect those of the editorial team of Völkerrechtsblog, which commented on the development in a Special Editorial. To read further on Russia’s invasion of Ukraine in 2022, see this compilation of blog posts. For a different perspective on the hypothetical effects of holding a Crimean referendum under international supervision see for example the analysis by Johannes Socher (at p. 163), soon to be reviewed in a Book Symposium on Völkerrechtsblog.

 

This interview is also available in French. / Cette interview est également disponible en français.

Autor/in
Alain Pellet

Alain Pellet is Emeritus Professor (University Paris Nanterre) and former member and chairperson of the International Law Commission. He advised numerous governments and acted as counsel and advocate in more than sixty cases before international courts and tribunals. He is President of the Institut de Droit international as well as Honorary President of the French Society for International Law.

Photo: ITLOS

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Justine Batura

Justine Batura is a Research Assistant in International Law and a Law Clerk (‚Rechtsreferendarin‘) at the Higher Court Berlin. She is an editor at Völkerrechtsblog.

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Julian A. Hettihewa

Julian A. Hettihewa is a research assistant and doctoral candidate at the Institute for Public International Law, University of Bonn. He is also a visiting student at the Oxford Institute of Population Ageing, University of Oxford. During the period of the research group, he was a lecturer at Humboldt-Universität zu Berlin.

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Polina Kulish

Polina Kulish is a PhD candidate and a research associate at the Friedrich Schiller University of Jena. Her fields of research encompass the law of international organisations, law of international security, and media law. In her current research project, she is exploring the nature of member states’ compliance in international organisations.

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