Joseph O'Neill - This is the Life

The trouble with Oliver, I thought, is that, unlike me, he doesn’t understand Donovan. Me, I understand him.

In the years that followed my understanding of the man deepened as I kept track with his ideas and preoccupations. They were fascinating. Early on in his career he had developed a peculiar specialty: the law of outer space. He wrote with authority on mainstream issues like the problems of spatial junk and the demarcation of airspace and outer space, but his reputation in the field was sealed by a dazzling, questioning essay on the regime of res communis that operates in outer space — a regime which designates outer space as an area existing for the benefit of the whole of mankind (so that a country or corporation cannot own celestial bodies or, for example, mine metals in asteroids for exclusively private gain; another consequence is that weapons of mass destruction — and sky wars — are also prohibited up there; no guns among the stars).

From outer space he moved to submarine areas, a much more orthodox field. He treated the usual problems (economic zones, the exploitation of the continental shelf, the delimitation of territorial waters) but lingered in one unusual area: the deep ocean floor, also designated by international agreement for the benefit of the whole of mankind. Finally, in the mid-eighties, when I stopped my research, he was looking closely at the notion of the sovereignty of States — in particular, at the concept of exclusive jurisdiction.

What characterized Donovan’s contributions was that they were, in essence, questioning. He was not an answers man. Solutions to old problems did not interest him: he was after the problems with the problems. He would take an issue, all weedy and overgrown with commentaries and opaque analyses, and wipe it clean as a washed slate. The resulting clarification was startling, but then, tantalizingly, having illuminated the subject to an unprecedented degree, he would move on to another. It was frustrating for the reader, and led to the accusation that he was essentially a negative thinker and a trouble-maker. But I knew better. I knew that he was keeping his powder dry. I knew that on the horizon was a great, synthesizing work that would bring together all his preoccupations. Indeed I counted on it, because without a revolutionary masterpiece to Donovan’s name, the careful comparisons I had drawn between him and Grotius would be embarrassingly unfounded. For years I waited for the great work. Scrupulously photocopying his academic output in the library, I bided my time. If anyone had seen me, my hopeful face flashing over the machine, they would probably have laughed. So be it, I thought. Let them laugh. Let them think what they want.

You see, I had faith in Donovan. I knew that, in the end, he would come up trumps.

But, as I have said, the whole enterprise drifted away from me of its own accord. Even when I began reading the first part of Supranational Law and realized that, yes, this was the work I had banked on for all those years, I was not excited so much as wryly satisfied. Nor did I seriously contemplate resuming my thesis. My ambitions along those lines had expired.

The scheme of Supranational Law was breathtakingly ambitious. International law as we understood it, Donovan said (I am paraphrasing crudely and over-simplistically), was out of date. At present it governed the interrelations of sovereign States and did not interfere with the relations of the State with its own citizens and territory. When it came to internal matters, the State had exclusive jurisdiction — this followed, according to the orthodoxy, from the fact that States are sovereign. That was fine, Donovan said, as long as the treatment by the State of its citizens had purely domestic consequences. So, for example, if the Albanians had an atheist, insular, Marxist State, or the Iranians preferred an Islamic republic, that was (putting aside, for the moment, the question of human rights) a matter for them. But what if a State’s internal actions had grave external consequences? What if, for example, a State burned millions of square miles of rain forest, or punched a hole in the ozone layer, or conducted military experiments that caused irrevocable pollution? Or, to take another example, ordered the extermination of a precious species of animal?

The time had come, Donovan argued, for international law to come to terms with the vital new issue of our times: the prevention of the destruction of the planet. It was true that provisions existed that purported to deal with some of the problems involved. But, Donovan argued, these provisions (i.e. treaties and multilateral conventions) were deeply flawed. Why? Because they remained purely an expression of national interests. This was dangerous, because safeguarding a variety of national interests was an inadequate mechanism for safeguarding the interests of the globe. At present, it was up to a State to determine what its national interest was, and if that meant endangering everyone else, that was tough luck. By law, the rest of the world was not entitled to interfere. It was none of its business.

No, Donovan said. One had to start afresh. For guidance one had to look at the only places where national interest did not rule: extra-sovereign areas like the deep sea-bed and outer space, Antarctica, the high seas. Donovan’s thesis was that the concept of the common good which operated in respect of these regions should be extended: surely it was incontrovertible that the rain forests were a resource of the world and not just of, say, Brazil. And States owned airspace, yes, but the world had a vital and legitimate interest in the gases contained in the airspace. The flipside, Donovan said, was that the wealth in the developed countries was also a resource of the world. In order to strike a balance between these two resources, Donovan said, a coherent jurisprudence of supranational law — law founded on the supranational, and not just national, interest — was necessary. His book, he humbly hoped, would supply that jurisprudence.

I tossed the final page on to the carpet. What a project. How on earth was he going to do it? Several huge, and to my eyes insuperable, problems appeared immediately. The function of the State would have to be examined and redefined, and the principle of the self-determination of peoples would have to be shaped afresh. Then there was the thorny question of causation — when a forest in Central America is set aflame, are not some of the perpetrators thousands of miles away, in air-conditioned boardrooms? These were very difficult philosophical, as well as legal, questions — could Donovan deal with them?

Yes, of course he could. He was made for it. He was born to meet the challenge.

The next day, Monday 14 November, I found in my in-tray a summons for the pre-trial review of Donovan v. Donovan. Pre-trial reviews are particularly necessary in contested divorces, in which wild accusations and irrelevant, expensive antagonisms abound. A purpose of the review is to cut these out and to ensure that the trial takes place expeditiously, with no unnecessary slanging matches. It must be said that there was little danger of Donovan coining out with extraneous recriminations. Unlike my usual clients, whom I have often had to restrain from making outrageous attacks on their spouses, he knew what was at issue, which allegations counted and which did not. There was no need for me to spell things out for him. He knew what was what.

I telephoned Rodney and told him to inform Donovan immediately of the summons, which was returnable in two weeks’ time, 28 November. That was fine, Rodney said. According to his diary, Mr Donovan would be flying in from Europe early that morning (Donovan’s diary! I remember leafing through its crackling, blue-edged pages as a pupil, marvelling at how it was jam-packed for years ahead, how his golden, rock-solid future unrolled there for all to see …). He would go to court directly from the airport.