Interview with Professor Sean D. Murphy on the role of State agents and counsellors in international dispute resolution

Professor Murphy served as legal counsellor at the U.S. Embassy in The Hague, representing the U.S. government in matters before the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia, and Permanent Court of Arbitration, as well as serving as U.S. agent to the Iran-U.S. Claims Tribunal.  He also worked in the U.S. Department of State Office of the Legal Adviser, including in the Office of Claims and Investment Disputes. Moreover, since entering academia, he has represented several other States before international courts and tribunals, and has served as an arbitrator or ad hoc judge in inter-State and investor-State arbitrations.

As a scholar and a teacher, he has published a considerable number of articles and books, is a member of the International Law Commission and is president of the American Society of International Law (ASIL). He teaches at George Washington University Law School, where he is the Manatt/Ahn Professor of International Law.

His considerable work in several fields of international law (dispute resolution, environmental law, law of the sea, humanitarian law, etc) and in various capacities in international organizations, for governments, and as legal counsel make him a prominent actor within the international legal field.

Jus Mundi is greatly honoured to have the opportunity to interview Professor Murphy.

Professor Murphy, you served as U.S. Agent to the Iran-U.S. Claims Tribunal. The Tribunal has been in existence since the 1980s and has resolved more than 4 700 claims as of this date. At Jus Mundi, we recently provided our users access to most of the Tribunal’s decisions, many of which are considered landmark in the field of investor-state arbitration. Still, the work of the Tribunal remains somewhat of a mystery to some, including students and legal practitioners. How would you clarify the Tribunal’s purpose and role within the field of international investment law?

The purpose of the Iran-U.S. Claims Tribunal, which was established in 1981, was to resolve an enormous number of claims between the United States and Iran, and between each state and the nationals of the other state, that arose prior to 1981, mostly in relation to the Iranian revolution of 1979. The Tribunal was established as part of a package deal, referred to as the Algiers Accords, by which U.S. nationals being held in Iran were released and Iranian assets in the United States were released. The Tribunal was given a mandate to receive and adjudicate claims, many of which concerned U.S. investors who lost assets or property in Iran.

The broader role that the Tribunal has played in the field of international investment law relates to two factors. First, the Tribunal issued hundreds of arbitral awards, principally from 1981 to 2000, during the period when private claims were being litigated before it (the Tribunal still exists, but the only remaining claims are between the two governments). Thus, the sheer number of awards provided a substantial corpus of jurisprudence on various aspects of international law relevant to international investment (and commercial) law, such as on attribution of conduct to a government, standards of fair treatment and expropriation, circumstances precluding wrongfulness, and forms and quantum of reparation. Because the Tribunal visited and revisited such issues in numerous awards, it was able to develop in great detail the field of law in this area.

Second, the Tribunal came along at an important time in the historical arc of transnational investment. The 1980s was a time when investor-State arbitration and international commercial arbitration was becoming more and more common. Indeed, the benefits of foreign investment were being recognized in the 1980s by an increasing number of developing countries. After the end of the Cold War, in the 1990s, a significant number of countries formed out of the former Soviet Union and the former Yugoslavia also actively sought foreign investment and commercial relations, as did other countries in eastern and central Europe that emerged from communism. More and more bilateral investment treaties were negotiated, which invariably led to more disputes that had to be resolved by investor-State or international commercial arbitration.

The extensive jurisprudence generated by the Iran-U.S. Claims Tribunal, therefore, became an important source of jurisprudence for those arbitral tribunals. It also heavily influenced the U.N. International Law Commission’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts.

You were an Attorney-Adviser at the U.S. Department of State (Office of the Legal Adviser), primarily advising on matters relating to maritime, international environmental and humanitarian law, and international claims. Could you describe the way in which U.S. foreign policies are made and implemented based on your experience, as well as explain your role as a legal expert throughout this process? 

The U.S. Department of State consists of three different types of employees:  political appointees; foreign service officers; and civil servants. Political appointees are relatively few in number as compared to foreign service officers or civil servants, but they hold the most important positions, including Secretary of State, Deputy Secretary of State, and Legal Adviser. Political appointments are made by whatever administration is currently in power, so political appointees only hold their positions temporarily, lasting usually four years or less. Yet it is they who decide all major U.S. foreign policy issues, including whether the United States should pursue negotiation of a treaty, should withdraw from a treaty or international organization, or should support a candidate for a position on an international body.

Foreign service officers may have legal training, but they normally do not provide legal services. U.S. embassies are staffed mostly by foreign service officers, who rotate among the embassies and Washington, D.C.

Virtually all legal services at the U.S. Department of State are provided by the Office of the Legal Adviser (commonly referred to by the acronym “L”), which is staffed by almost 200 lawyers. Almost all of those lawyers are civil servants and are based in Washington, D.C., with just a few positions in places like New York, The Hague or Geneva.  The role of Office of the Legal Adviser is to provide legal services to the political appointees and others at the U.S. Department of State. Thus, L does not decide on foreign policy, though it may advise policy-makers about the advantages and disadvantages of a policy choice. At the same time, the role of L is to make sure that policy-makers do not violate either U.S. national law or international law. In my time there, I viewed my role as explaining to policy-makers their “legally-available options” and, once one of those options had been selected, to help them implement it.

When you were elected President of ASIL, you said: “Given the challenges today on so many transnational issues – including trade, cyber-security, non-proliferation, climate change, refugees and armed conflict – now more than ever ASIL plays a critical role in convening stakeholders from across the world to discuss and promote solutions through international law and institutions.” How would you describe more precisely the work and the influence of non-governmental and nonpartisan organizations, such as ASIL, in this process?

While they do not themselves create international law, it is well understood that non-state actors play a very important role in affecting governments, international organizations, and courts and tribunals, in various ways. Thus, some non-state actors lobby governments to support and join treaties, others publish reports about compliance or non-compliance of governments with their international commitments, while still others bring cases before national or, where possible, international courts and tribunals.

ASIL is a non-profit, non-partisan, and non-governmental organization that was founded in 1906, with the U.S. Secretary of State as its first president. Consisting of nearly 4,000 members from more than 100 countries, its members today include attorneys, academics, corporate counsel, judges, representatives of governments and non-governmental organizations, international civil servants, students, and others interested in international law. Through its events, publications, information resources, research initiatives, and educational programs, ASIL influences our field by advancing international law scholarship and education for international law professionals, as well as for broader policymaking audiences and the public. Our non-partisan status helps us to bring together voices from across the political spectrum, which increases the likelihood of finding common ground for enduring solutions.

As a member of the International Law Commission since 2012, you served as Special Rapporteur for the draft articles on prevention and punishment of crimes against humanity, which were finalized by the Commission in 2019. There is currently no comprehensive convention on crimes against humanity. Do you think that such international convention is necessary to effectively prevent and punish such crimes? Why?

Yes, I do think that we need a global convention on prevention and punishment of crimes against humanity, just as we have such treaties focused on genocide, war crimes, torture, and other crimes. The purpose in such treaties is essentially to build up national laws and national jurisdiction, so as to make sure that such acts are regarded as criminal within national law, and that national authorities are empowered to exercise jurisdiction over an alleged offender. In order to provide “no refuge” to offenders, it is important that such jurisdiction exists not just when the act was committed in the state’s territory or by one of its nationals, but also when the state has no connection to the crime other than the presence of the alleged offender in its territory. Further, such a convention would put the states parties into a legal relationship with respect to extradition and mutual legal assistance. International criminal courts, of course, are one way of addressing crimes against humanity, but those courts have limited capacity, and are built upon the idea that they should complement (not supplant) national investigations and prosecutions.

At present, approximately half the countries of the world have no national law on crimes against humanity, defined as a widespread or systematic attack against any civilian population in the form of various enumerated acts, such as murder or enforced disappearance. Of those countries that do have a national law, the laws are uneven, and often entail limited jurisdiction. Existing extradition or mutual legal assistance treaties cannot function properly if national laws are not harmonized better. A new convention would help solve these problems.

Traditionally, the work of international law scholars consisted, in part, of gathering decisions and other materials relevant to international law research and practice. As a scholar, you have published treatises and case-books, which you regularly update. At Jus Mundi, we use artificial intelligence to, similarly, collect international law related materials and make these documents accessible to lawyers worldwide. Do you think the use of new technologies may change the way lawyers use and apply international law in practice? And further, do you think new technologies have potential to increase the effectiveness of international law?

New technologies are creating serious problems for the field of international law, relating to issues such as cyber-attacks, loss of privacy, and how to adapt territorial-based rules to an information domain that transcends frontiers. One silver lining to such concerns is that, yes, I think information technologies are increasing our ability to study the practice of states and international organizations, to capture and disseminate the decisions of international courts and tribunals, and to translate materials from one language to another. All of this is making the study of international law a much richer endeavour, providing greater opportunity for all states to influence the development of international law. As such, over time, these technologies should allow for a more refined and well-grounded field.

Do you believe that a future in which the rule of law is a reality for international society is possible and achievable? Do you have any advice to young lawyers who want to participate in building such a future?

I think that such a future is, in fact, the present; the rule of law is a reality for international society in the same way that it is a reality for national society. In both spheres, the law is at times violated, and at times there are no effective sanctions for such violations. Yet in both spheres, societal needs, values and expectations are deeply embedded in a web of rules that states and other actors habitually adhere to, whether it be on the “smaller” issues of regulating transboundary aviation or on the “bigger” issues of one state not invading the territory of another.

There are serious contemporary challenges to the field of international law (as there are within national legal systems), but I think we lose sight of how robust the international law system is, certainly as compared to 100 years ago. One of my former professors, Louis Henkin, perhaps said it best: “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” So my advice to young lawyers is to continue to strive to sustain and build the system; where there are solutions that work, enhance them; where failures occur, try something new; where new challenges emerge, rise to meet them.

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