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Constant Gardners?

Sunday 4 August 2013

Here is some unfinished business.

European Voice reported at the end of July that Anthony Luzzatto Gardner, a lawyer turned financier, has been lined up to become the next United States ambassador to the European Union. You can find out more about him here. An item in our Entre Nous section gave more details about his father, Richard Gardner, who was the US ambassador to Italy in 1977-81, and to Spain in 1993-97, and before, after and in between was a professor at Columbia law school in New York.

The unfinished business is that in the course of European Voice's researches into the Gardner antecedents, the internet offered up this gem, which I think deserves wider readership. It is an after-dinner speech that Richard Gardner gave when he was awarded the Wolfgang Friedmann award for outstanding contributions to the field of international law.

Take note of the disclaimer at the beginning: this is not a learned treatise on international law, but a reflective series of anecdotes, and that probably makes for a more entertaining read (the struggle to make safe the records of supporters of the Basque government in exile is priceless). Underneath the self-effacing surface, however, there is substance with a serious message: as he ranges over various incidents in post-1945 history, Gardner puts an eloquent case for the importance to the United States of international law.

During the Cuba Crisis he and other legal advisers recommended the Kennedy administration to ensure that the naval “quarantine” of Cuba was authorised by the Organisation of American States under article 53 of the UN Charter.

“In the midst of the most dangerous confrontation in the history of the Cold War, we lawyers had to create some new international law, or bend some old law if you prefer, but we did not tear a gaping hole in the law that could come back to haunt us. Fortunately, most of our allies and non-aligned countries went along.”

As Richard Gardner reflects on the end of the Cold War, international trade talks, global negotiations on the environment, the invasion of Iraq and the response to the terrorist attacks of 11 September 2001, his recurring theme is that the US cannot go it alone, but must seek international co-operation.

“As pragmatic internationalists in an international legal system lacking a world legislature to change the law or a world court of general jurisdiction to provide new interpretations, we must work with other nations to adapt the law as needed either through Security Council action, new treaty-making, or state practice.”

The speech was delivered more than eight years ago, when George W. Bush was the president of the US, but chance decided that I would read it in July 2013 and making comparisons with the present is a temptation that is very hard to resist. The US currently stands accused of excessive surveillance – and even of spying on its allies, including European Union offices.

The contrast can be overdone. Earlier US administrations were not all as deeply attached to the law as Gardner's anecdotes might lead one to suppose, although because technology was less developed, they were not tempted as severely as the current administration. (I noticed the other day, though, while re-reading “All the President's Men”, Carl Bernstein and Bob Woodward's account of the Watergate scandal, that the US Justice Department had no need of authorisation from a court before eavesdropping electronically on those suspected of domestic “subversive” activity – until the Supreme Court ruled otherwise on 19 June 1972, coincidentally two days after the Watergate arrests.)

However, it does not really matter whether the present regime is better or worse than its forebears. The essential point is that the excesses of the past teach the same lesson as the outcry abut the current allegations: that, to borrow Richard Gardner's words, tearing a gaping hole in the law will come back to haunt us/the US.

Harold James, an economic historian from the UK who is now a professor at Princeton University, in a piece written for Project Syndicate and recently published on, observes that the allegations from Edward Snowden have weakened trust in international organisations and belief in international co-operation.

Anthony Gardner, if he is confirmed as the US ambassador to the EU, will have his work cut out to restore faith in international law and transatlantic co-operation to the levels that his father knew. Richard Gardner's work is also unfinished business.




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