The Critical Lawyers' Handbook Volume 1
3: Critical Legal Practice
Is it just fantasy to suppose that there is an international 'critical legal practice' in which lawyers and law students can engage? Public international law tends, in Britain at least, to be taught as the law of states and their treaties; no struggles, please.
the contrary: in this article, I argue: 1) that there are live contemporary
legal issues concerning liberation struggles which are not simply of academic
interest; and 2) that there are concrete, vital practices (some of which
I mention below) to which socialist lawyers and law students can contribute.
few people now believe that the socialist future has been built in any
part of the world. Stalinist regimes fall, or carry out radical, market-orientated
reforms which have all the appearance of the restoration of capitalism.
In postcolonial Africa, one regime after another faces a rising tide of
demands for political pluralism. Is it surprising that socialism itself
is subject to critical challenge?
Humankind can never attain real freedom until a society has been built in which no person has the freedom to exploit another person. The bulk of humanity's resources will never be used for the good of humanity until they are in public ownership and under democratic control. The ultimate aim of socialism, to eliminate all class inequalities, occupied a prime place in the body of civilised ethics even before Marx. The all-round development of the Individual and the creation of opportunities for every person to express his or her talents to the full can only find ultimate expression in a society which dedicates itself to people rather than profit. (1990, p. 28)
every lawyer identifying him or herself as a socialist would agree with
every word. But I suggest that a commitment to socialism means orientation
and engagement. Orientation to liberation from oppression and exploitation.
Engagement, as lawyers, using legal skills and knowledge, In the service
of organised, collective struggle against those evils.
Academic lawyers are locked in fierce debate as to the juridical nature of national liberation struggles; and even as to whether 'peoples' exist in law. Wilson, in her very useful International Law and the Use of Force by National Liberation Movements, defines a national liberation struggle as 'a conflict waged by a non-state community against an established government to secure the right of the people of that community to self- determination' (1988, p. 1). 'Self-determination is now a legal principle', says Brownlie (1981); but it is a legal principle with a real historical content.
The first post-war liberation struggles were concentrated in Britain and France's African colonies. The great war of liberation waged against France by the Algerian movement FLN from 1954 to 1962 gave birth, in 1960, to the crucial UN General Assembly resolution 1514 (xv): the Declaration on the Granting of Independence to Colonial Countries and Peoples, which declared:
2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Progressive and socialist lawyers also played a key role in developing these new principles. One such, Cassesse, notes that:
The law, too, has continued to develop. Cassesse was one of the authors (as were Rigaux, Salmon & Falk) of the 1976 Universal Declaration of the Rights of Peoples, the 'Algiers Declaration' (see Crawford, 1988), which, although 'unofficial', has had a profound influence in shaping the concepts of international law. It states that:
6. Every people has the right to break free from any colonial or foreign domination, whether direct or indirect, and from any racist regime. (Crawford, 1988, pp. 187-9)
2. Colonialised or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognised by the international community.(Crawford, 1988, pp. 193-202)
Many British lawyers doubt whether any of the above really constitutes law; and there is much useful work to be done on the academic front. But I propose to describe four (but by no means the only) ways in which lawyers may actively engage themselves, as lawyers, in solidarity with liberation struggles.
First, the UK organisation Lawyers for Palestinian Human Rights (LPHR),1 not only campaigns for those rights but has, for example, been working on a petition to the Permanent Peoples Tribunal (PPT)(whose President is Professor Rigaux) on the question of breaches by Israel of human rights in the occupied territories.
The inauguration of the PPT in Bologna on 24 June 1979 was inspired by the Algiers Declaration. Its mission (set out in Article 2 of its statute) is 'to promote universal and effective respect for the fundamental rights of peoples by determining whether these rights have been violated, by examining the causes of such infringements, and by pointing out to world public opinion the authors of these violations. It has been petitioned to rule, among others, on Western Sahara (1979), Argentina (1980), Afghanistan (1981 and 1982) and Guatemala (1983). In September 1988 the PPT was convened in Berlin to coincide with the IMF Congress, and considered complaints of violations by the IMF and the World Bank of the international law of the self-determination of peoples. They were found to be in breach of the UN Charter and of their constitutions, and to have acted negligently.
Secondly, LPHR, along with Al-Haq, the West Bank Affiliate of the International Commission of Jurists, has been investigating the enforcement of international law in relation to the Israeli-occupied territories, particularly as regards 'grave breaches' of the IV Geneva Convention of 1949, which are war crimes (see Stephens, 1989); for example, by invoking the UK's Geneva Conventions Act 1957. LPHR are currently campaigning to stop the separation of Palestinian families.
Thirdly, another UK organisation, Lawyers Against Apartheid,2 campaigns on a number of international law issues, for example, ratification by the UK government of Protocol I Additional to the Geneva Conventions of 1949 (on international armed conflicts, signed by 102 states and three national liberation movements on 10 June 1977), as part of the campaign for prisoner-of-war status for combatants in the struggle against apartheid. In autumn 1991, LAA launched their 'Vote for Democracy in South Africa' campaign, to show that the people of Britain support democracy in South Africa.
many of the lawyers mentioned above are activists in the International
Association of Democratic Lawyers,3
whose British section is the Haldane Society of Socialist Lawyers,4
and which comprises sections representing progressive lawyers in South
Africa, Palestine and over 70 other countries. Its journals include the
International Review of Contemporary Law,5
and Palestine and Law. The Haldane Society has an international sub-committee
which works closely with solidarity and liberation movements.