If academia is an ivory tower then it is up in that tower’s garret that the international law professor lives. The subject rarely makes more than a modest appearance on most undergraduate law syllabuses. Its development remains the province of a few specialist practitioners and academics, played out across the pages of legal journals and in a clutch of global courtrooms. A rarefied discipline whose existence or effectiveness is doubted even by those it most intimately involves, international law has long been far removed from everyday public discourse.
Philippe Sands, international lawyer, professor and author of the bestseller East West Street, thinks this is all wrong. His particular garret – where we meet one afternoon as Extinction Rebellion’s climate change protests draw to a close across London – is a corridor-like slice of University College London’s law department. A part-frosted window looks onto a grubby façade. A small desk and sofa vie for space between bookshelves stacked double deep, where Philip Allott nestles into Leonard Cohen. ‘Philippe Sands QC’ in laminated black and white balances above his iMac and sits in wood below, as if to remind himself. And given his recent propulsion from specialist obscurity to public intellectual – complete with a global lecture circuit, podcasts, documentaries and the UK’s most prestigious non-fiction book prize – he’d be forgiven for needing to do so. Back to his desk, Sands twists in a swivel chair, knees and feet scrunched inward, ready to spring. He pairs a kind smile with a scuffed leather jacket and, once we’ve made friends over a conspiratorial chat, a welcome request to ‘make this fun’.
‘It doesn’t exist,’ Sands says emphatically, leaning forward. ‘There isn’t one,’ he reiterates. We’re talking about public engagement with the law, something Sands now finds himself at the forefront of. And we are both astonished, and annoyed, that whilst in science whole professorships are devoted to ‘public understanding’ of the subject (the Simonyi Professor at Oxford University, for example), there is no equivalent position in legal academe. That lack says plenty about the traditional approach of legal practitioners and academics in the UK: politics and law portrayed as neatly divided; one for public debate, the other for specialist development. Our system can be starkly contrasted with legal education in the US where, in 1983 – then aged 23 and following a girlfriend to Harvard – Sands first came into contact with the Critical Legal Studies movement. ‘CLS’, born in the 1970s, is sceptical of law, seeing it as a means of perpetuating power structures. Harvard Law has a strong CLS tradition and when Sands arrived David Kennedy was just beginning to apply the concepts of CLS to international law. Sands worked as Kennedy’s research assistant and through him began to recognise law’s political function, and the importance of involving a wider audience in its development.
This recognition grew into a conviction after 9/11, which both pushed Sands to engage with law in a variety of forums – radio, theatre, TV – and made him more humble. ‘As lawyers we’re not the end, we’re a means to another end,’ he says. ‘We have the great privilege and joy of dealing with issues of human complexity, psychology, language, culture, ideology repackaged as law. And we should be the first to understand and recognise that we don’t have the answers.’ In preparing cases, Sands seeks out those who know more. The Whaling Case at the International Court of Justice (ICJ) – in which Australia argued that Japan’s program of ‘scientific whaling’ violated international law – sought, essentially, to define ‘science’. It had Sands (who was acting for Australia) frequently probing professors, around whose descriptions and anecdotes he built his arguments. Outside work, Sands reads, watches and listens to ‘almost everything’. Literature, art, film, music, TV, podcasts. Sometimes the overlaps between his work and his wider interests are literal: Leonard Cohen (who Sands swears he listens to every day) read law for a term at McGill and includes a track titled ‘Treaty’ in his last album. (Sands cautions me to listen carefully to Cohen, and we are soon crouched over a tinny recording on his iPhone.) More often, the similarities between law, music, literature, film, are more allusive, but remind him that humans have long been interrogating the same themes – identity, belonging, power, for example – in different ways.
"[Lawyers] have the great privilege and joy of dealing with issues of human complexity, psychology, language, culture, ideology repackaged as law. And we should be the first to understand and recognise that we don’t have the answers."
But despite his downplay of its primacy, Sands still has a soft spot for law. He sees law as the means to ‘a greater understanding of human nature, and of the human tragedy’. In marshalling factual complexity, law provides a framework which, quite apart from alienating the public, can render the profound and difficult legible and accessible. Nowhere is this more apparent, to Sands, than in what he sees as the two biggest public issues of our time: the Iraq war and Brexit. Both involve weighty questions of history, morality, politics, international relations and yet both triggered debates that were articulated in legal terms and that resulted in marches where people bore banners referencing UN resolutions and obscure articles of EU law. ‘That is fascinating,’ Sands says, gleeful. ‘How did that happen?’
Such questions are what animate Sands. Whilst we talk, the wheels of his chair dart to keep up with his tone: they slide back as he thinks something through, feet up on a stack of books; whip forward as he eagerly explains. He is charming and garrulous, but with a barrister’s care: he is conscious of what he is saying. There is a polish to his spoken paragraphs and a sprightly awareness of his audience that could equally be the result of decades of court advocacy (he was called to the Bar in 1985) and delivering lectures (he took his first academic job in 1984) or his more recent experience of giving interviews the world over (a Google search offers up pages of hits, from Vanity Fair to the European Journal of International Law). But the genuineness of his desire to grapple with big questions is palpable, and fun. It makes me doubt that his engagement with Critical Legal Studies was the real cause of his move to a wider audience: in terms of temperament and intellect, Sands is a man drawn to a stage.
From mention of marches, we turn to the current situation of the US and the UK. Both were central to the creation of today’s international legal framework in the aftermath of the Second World War. But where are they now? ‘In the US,’ regrets Sands, ‘international law has been so critiqued, on left and right, that there is barely a constituency left to defend it. And the consequence is Donald Trump, who can just shred treaties and agreements’ and ‘who would surely have found a way to cut a deal with Adolf Hitler.’ The UK, in contrast, has long demonstrated a real commitment to both international law and the rule of law. This is hard wired into our constitutional culture. And the Bar – which Sands sees as an ‘extraordinary institution’ that protects integrity and freedom of spirit and provides a platform for total independence – is emblematic of it. But Sands fears the UK’s new ‘complete isolation’ may test its principles. In his view, the last three years have transformed the UK’s international standing. ‘The double whammy of a Trump presidency and Brexit is potentially catastrophic for the UK.’ There is no longer a UK judge on the ICJ and the international community is ‘flummoxed and confused’ by Britain, baffled that such a competent State could get itself into such a mess. Amid such turmoil, the UK’s decision to ignore the ICJ’s recent finding that UK occupation of the Chagos Islands is unlawful and must be terminated has ‘deeply damaged’ its position at the UN and its reputation as a rule of law state. Sands is worried. ‘Could we see the UK today do what it did in 1945 at Nuremburg?’ Doubtful, he thinks.
Mindful of those currently on the streets of London, I brace myself for more depressing predictions as I ask Sands how he thinks environmental regulation will fare with Britain’s retreat from the international. As the founder of the SOAS Foundation for International Law and Environmental Development, author of academic publications on environmental law, lecturer on international environmental law at UCL and frequently instructed as counsel on environmental law cases, Sands is well placed to answer. He surprises me with optimism. ‘Environmental consciousness is pretty well integrated into society; I don’t think there will be a massive watering down of regulations because it’s electorally unpopular.’ Equally, in the international sphere, he does not foresee a weakening of protections. International law is a long game, and ‘things tend not to go backwards’. ‘There’s development, change, collapse but it tends to rebuild from what went before, whether in 1815, 1914, 1939. So it may be that we’re headed toward a collapse but in terms of what comes next in the cycle, I’m pretty optimistic.’
Relieved, I ask what comes next for him. Writing projects dominate. He’s working on The Ratline, a sequel to East West Street, and plans to complete the trilogy after that. He makes passing reference to a short book of his favourite ‘Leonard’ songs. And the big questions? Sands bounces his feet to the floor, eyes atwinkle. He wants – through telling the story of the hiding, exile and death of the Nazi Governor of Galicia, the development of torture techniques in Chile, Pinochet’s arrest and extradition and coincidences that link all of the above to some cells in Guantanamo – to interrogate justice and confront the inadequacies and consequences of our international legal order. Blessedly, there’s no way of restricting Sands’ brand of international law to a garret.
Isabel Buchanan is a barrister at Blackstone Chambers, where she has a broad civil law practice focusing on public law and human rights. She is the author of Trials: On Death Row in Pakistan.
Philippe won the 2016 Baillie Gifford Prize (amongst other prestigious awards) for East West Street, which took seven years to write with research spanning 12 countries. He donated his 30k prize money (which was matched by Baillie Gifford) to three refugee charities: Médecins Sans Frontières, SOS Méditerranée and Women for Refugee Women. The book inspired Philippe’s BBC documentary My Nazi Legacy, and a BBC podcast series; The Ratline will be published in April 2020, the second book in the planned trilogy.
Hay: a beacon for enlightenment
The world’s great writers and thinkers gather at Hay Festival each year to tackle the burning issues of our time. Philippe in conversation with Shadow Brexit Secretary Sir Keir Starmer QC on Brexit Britain: the State of the Nation: tap in at www.hayfestival.com/hayplayer