On law and war

Brussels is deserted in summer. Officials from the European institutions have the continental habit of departing in a collective rush at the beginning of August, and staying away the whole month. In the European quarter, there is no longer a queue of slowly moving cars piled up at traffic lights in the mornings and evenings. There are no parents holding little children’s hands on the way to school or creche. There are no day visitors to meetings in the institutions, sticky badges on their lapel, speaking a myriad of European languages, and pulling a trolley-case behind them. And, of course, there are no legal developments to report to readers of the Gazette.

Brussels in summer at a time of possible war provides different reflections. While the House of Commons was debating intervention in Syria, I remembered that the empty, end-of-season quarter of Brussels – and my job in it – directly exist because of the horrors and deaths of the Second World War (although that connection is more and more forgotten). To prevent a recurrence, a system was established not only of laws, but of enforcement of those laws through the European Commission and the Court of Justice of the European Union.

Curiously, law and war – which at first seem polar opposites, as if one is a reflection of the absence of the other – have something in common. Both are recognised methods of resolving disputes, and therefore are intended to produce a winner and loser. But the difference ends there. War is not only a failure of diplomacy, but a failure of law, too.

We can take the current dispute between Spain and the UK over Gibraltar as a good example of how law deals well with at least a certain kind of dispute. Although the Gibraltar issue comes nowhere near the ghastliness or complexity of the Syrian civil war, it is likely that it would have been settled in former times by military means, with a naval battle or land invasion. Today, no one even contemplates that - since the EU has provided mechanisms for settlement. The UK claims over Spanish obstacles to entry to Gibraltar come under the Maastricht Treaty’s free-movement provisions. The Spanish claims over fishing rights and alleged cigarette smuggling can be similarly investigated by the European Commission. Finally, the Court of Justice will rule.

We should not be seduced into thinking that law is the perfect solution. If you look at the United States in the nineteenth century, which prided itself as a country founded in revolution against tyranny – British tyranny! – in order to provide freedom under the law, you come up with some difficult moral problems. The US Supreme Court, led by Chief Justice Roger B. Taney (his name will live in infamy), declared in 1857 in the Dred Scott case that all blacks - slaves as well as free - were not, and could never become, citizens of the United States. The court also permitted slavery in all of the country’s territories. That was the highest court in a democracy ruled by law.

Maybe not surprisingly, a few years later that same country tore itself apart in a murderous civil war for or against the end of slavery. Libraries full of books have been written about the causes and outcome of the American Civil War. I don’t want to insult academic research in a short paragraph, nor can great complexities and nuances be reduced to a simplification. But the law and the courts nevertheless reinforced slavery, and the war (with over 600,000 dead) ended it.

The decision by the House of Commons against military intervention in Syria saves us from having the usual dispute over the legal advice given to the government. International law, even more than other kinds, appears to be a slippery fish to be grasped for only a few seconds by whoever is speaking. It is in any case enforceable in only some cases.

No one believes any more in calling for world government, to ensure lasting peace and harmony between all. That is seen to be absurd. But the EU is a powerful model for other regions defined by common culture and history. My greatest wish for the Syrian people is that one day, when their horrible war is over, they will find themselves part of a regional single market, bound by laws and courts. I have no doubt that they will curse it and mock it as we do our own, but I also believe that they, and we, will be more at peace because of it.

Next week, when Eurocrats are back and busy, I will concentrate on less life-and-death topics.

Jonathan Goldsmith is secretary-general of the Council of Bars and Law Societies of Europe