LCIL Friday Lecture: 'Authority in International Law' by Sir Frank Berman KCMG QC

Lecture summary: The problem confronting the users of international law, whether academic or professional, is very often not whether a rule of customary law has come into existence (as has recently been handled with such success by the ILC), but rather, granted that a rule of customary law on a given subject does exist, how to establish what its specific content is, for the purpose of then applying it to a particular situation. This applies not only to reasoned judicial decision but should also inform the processes of legal advice and decision-making based upon it. Ultimately what this may amount to is the assessment and weighing of the opinions of others. Rule of law considerations dictate that this can’t be a matter of subjective preference but must be based on known principles, i.e. to determine which opinions carry authority. The talk will investigate some of the issues involved, in the light, particularly, of Article 38 of the ICJ Statute. Sir Franklin (Frank) Berman joined HM Diplomatic Service in 1965 and was the Legal Adviser to the Foreign & Commonwealth Office from 1991-99. For the past 17 years he has been in practice in Essex Court Chambers specializing in international arbitration and advisory work in international law. He is Visiting Professor of International Law at Oxford and the University of Cape Town, and Chairman of the Board of Trustees of the British Institute of International & Comparative Law. His career in international law and diplomacy has spanned a wide and varied field, including settlement of disputes; the law of treaties; State responsibility; diplomatic and State immunity; maritime delimitation; the law of the Continental shelf; outer space and nuclear energy; the law of international organisations; the UN Security Council; the laws of war and neutrality; international criminal tribunals; and numerous other areas. He is a Member of the Permanent Court of Arbitration, a former Judge ad hoc of the International Court of Justice, and was the Legal Member of the Court of Arbitration between Pakistan and India under the Indus Waters Treaty. He has sat on numerous ICSID arbitral and annulment proceedings. He is the general editor of the Oxford International Law Library.