Foreign policy and the law: Sir Kenneth Keith comments on the origins and role of foreign international institutes.

• Author: Keith, Kenneth

In this article I would like to raise three matters which are related to one another. I shall begin by discussing the origins and purposes of the NZIIA and similar bodies. That will lead me into a comment or two on issues of process in international affairs and foreign policy--how are relevant decisions made and policies formulated and by whom? Finally, I will comment on the principles and values which are or should be reflected in those actions, decisions and policies. In short, I consider why, who and how, and what.

I begin on 30 May 1919 at the Hotel Majestic in Paris where the British delegation to the Versailles Peace Conference was housed. A small group of American and British diplomats and scholars met to discuss how they could sustain their fellowship after the peace. They proposed a permanent Anglo-American institute of international affairs with one branch in London, the other in New York.

The American proponents, on their return home, found however that their fellow citizens were absorbed in isolationism--and prohibition--and were thoroughly inhospitable to the ideals of the League of Nations. In the meantime the Royal Institute of International Affairs was being established as a separate body in 1920 and had acquired its elegant St James London mansion, once owned by William Pitt and known as Chatham House--since 2004 the formal name of the RIIA.

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In the following year, 1921, the American academics set up their own body, which they named the Council on Foreign Relations. These scholars provided diplomatic experience, expertise and high level contacts, but had no funds. To meet that last gap they soon involved a group of New York financiers and lawyers, who had been meeting since May 1918 to consider their concerns about the effect the war and the treaty of peace might have on business. A prominent member of that second group was J.P. Morgan's lawyer, Elihu Root, who had been Secretary of War under President William McKinley and Secretary of State under President Theodore Roosevelt and who had won the Nobel Peace Prize in 1912. He paid much attention to the cause of international arbitration, including giving the instructions to the US delegation to the Second Hague Peace Conference in 1907 to support the setting up of a permanent court of arbitration 100 years ago. Among an amazing array of activities, he was the first President of the American Society of International Law from 1906 (while also Secretary of State!), a member of the Committee of Jurists which, in 1921, prepared the statute under which I now work, and a little later one of the founders of the American Law Institute, a body consisting of practicing lawyers, judges and academics originally only from the United States but now also from a number of other countries. New Zealand's Chief Justice addressed its annual meeting earlier this year and reminded its members of the influence on its formation of one of New Zealand's greatest legal scholars, practitioners, and judges Sir John Salmond who was also briefly a diplomat.

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Two propositions

I mention those names and institutions to suggest two, at least, propositions. The first is that foreign policy and law, including international law, are too important to be left to the government professionals and officials--whether ministers, diplomats, judges, legislators or foreign office lawyers. In support I might quote Georges Clemenceau, President of France during the Great War: 'war is too important to be left to the generals'; New Zealand's present Minister of Foreign Affairs: 'banking is too important to be left to the bankers'; or Justice Michael Kirby of Australia: 'law reform is too important to be left to the experts'.

The second related proposition is the importance, even the necessity, of citizens of good will taking a real interest in matters outside their immediate day-to-day concerns. I worry that lawyers in a number of countries, including our own, better recognised this in the past than they do now.

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Other examples of institutions in my own areas of interest supporting those two propositions are the International Committee of the Red Cross from the 1860s and the Institut de Droit International and the International Law Association from the 1870s. The wider public interest and involvement also...