Authors: Joseph O'Neill
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(I am paraphrasing crudely and over-simplistically), was out of date.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.
‘Is that wise, Rodney?’
‘You know Mr Donovan, sir. He likes to keep things fairly tight.’
This last-minute arrangement left me a little anxious. Not only was there the risk of Donovan appearing late, it also gave
us no opportunity to confer. This worried me because I still had only an imprecise idea of the circumstances of the case. I was in the dark about almost everything and, as I have said, unlike some people, who seem to possess the relevant bat-like radar, I operate poorly in this kind of darkness, where I tend to bump into shapes that loom suddenly out of nowhere. One aspect of this benightedness was that I was quite unable to see a way out of the deadlock which Donovan and Arabella found themselves in: he would not contemplate consenting to the divorce, she would not consider reconciliation. The dangerous thing about the deadlock, of course, was that the longer it continued, the stronger grew the evidence that the marriage had irretrievably broken down. If Arabella could show that this had happened, she was half-way to getting her divorce.
That said, I should also note that my anxieties about my ignorance were allayed by the knowledge that Donovan, at least, had all the facts in his possession; and that was fine with me, because, in all truthfulness, and notwithstanding Mr Donovan’s views, they could not have been in better hands. Clearly Donovan recognized the impasse he had reached and the problem it presented. The only question was, what was he going to do about it? I should say here, for the avoidance of doubt, that I did not resent leaving the conduct of the case to Donovan. Any misgivings which I might have had on that score had been quashed over the weekend, when in reading his new work I had become re-persuaded of the man’s legal prowess. There was no dishonour in playing second fiddle to him. Indeed, it was right and fitting for a man like myself to do so. Some people are more potent sources of influence than others and it was only natural, therefore, that events should flow and braid from Donovan’s actions more than from mine. That was the way of things.
Two days later I was stepping out of the office building on my way home when suddenly someone intercepted me.
‘Why, Mr Donovan,’ I said, continuing to walk.
Smiling, his hand on my back in an avuncular fashion, Fergus Donovan steered and deflected me through the doors
of the pub we were passing. He said something I could not hear in the roar of cars and, disregarding my unwillingness, he sat me down at a table and fetched me a pint of bitter (he himself drank fizzing mineral water). He began talking to me as though he were confabulating with an old friend. He hunched his shoulders and lowered his voice. He leaned forward, taking me into his confidence.
‘Well, Jim, I can’t say that things are looking too hot.’ He explained himself: ‘Yesterday I spoke to Arab. I went round to her mother’s place to see if there was anything I could do. We sat down for a coffee, just the two of us, you know how it is.’ Mr Donovan pointed at the two of us by way of illustration. ‘We talked about this and the other for a while. She seemed pretty relaxed and she was looking well. So, anyway,’ Mr Donovan said, ‘eventually I stop circling around the subject and I get to the point. I say to her, Give Mikey a chance. Give
yourself
a chance, I said. Talk to him. Speak with him at least.’
Fergus Donovan was making a pleading face, demonstrating how he had looked at Arabella. He shook his head. ‘Well, she wasn’t having any of that, Jim. She wasn’t having a bit of that. It was over, she said. She’d made up her mind.’
Mr Donovan leaned back to analyse her reaction further. Then he leaned forward quickly and said, ‘She wasn’t angry, no, I wouldn’t say that: there was no anger there at all – it was like she was resigned. Like she’d quit and that was that. She said the best thing would be if Michael just let her go. I tried another tack – Jim, let me tell you, I’m not a man to give up easily, I’m not a quitter – I said, Arab, tell me: tell me what Mikey’s got to do. You can tell me, you know that, I said. Nothing, she said. There was nothing Mike could do. It wasn’t what he did, it was what he was.’
Mr Donovan slumped into his chair. ‘For an hour I talked to her, trying to change her mind, but, well, Jim, to tell you the truth, I got nowhere.’
I said nothing. Surely he had not imagined that one pep-talk would be enough to patch things up?
Reading my mind, he said, ‘Of course, it was only to be expected. And what can I do? I’m just an old man, what do I know? But you see it’s even worse than I thought. I thought – well, I don’t know what I thought,’ he admitted. ‘I just didn’t know it was this bad.’
He looked downhearted and, for the first time, he looked his age. The visit to Arabella – this whole business, in fact – was clearly upsetting him. I felt sad for him. At his stage of life he needed peace of mind. He needed everything to be settled, in its place.
I said, ‘Michael does not seem to think it’s finished. Otherwise he would not be resisting the divorce.’
‘You want to know something interesting?’ His voice was hoarse. ‘You know what else she told me? She told me the reason she didn’t want to speak to Michael was that she was afraid. You know why? She was afraid because she knew that, if Michael was given half a chance to talk to her, he would persuade her to go back to him. That was part of the problem, she said. Whenever Arab and Michael had an argument or a disagreement, Michael would always come out on top. It’s not that he would
win:
it’s that he was always
right.
You see what I’m talking about, Jim?’ Mr Donovan asked. ‘He was never wrong, she said. He would never allow her the satisfaction of being lighter than him once in a while. It’s not that they had arguments the whole time – no, they agreed on almost anything! I know! I saw them together! Jim, they were like two doves! – it’s that when they disagreed, Mike would always be in the right. And Jim,’ he said, ‘I’d like you to imagine what that feels like.’ Mr Donovan looked at the table. ‘Too clever. Too much of a smart-ass for his own good.’
What Mr Donovan said did not surprise me. What chance did Arabella stand in an argument with Donovan? He was a professional arguer. The tricks of apologetics, the ins and outs of pro and cons – he knew them all. When it came to winning over, to logomachy in any form, he was the best. He would be incapable of losing an argument with Arabella for the simple
reason that he would only argue if he knew he was demonstrably right: otherwise he would simply agree with her.
‘It drove Arab crazy,’ Mr Donovan said. ‘That and other things, of course. Now she takes him for a monster.’
Drinking my bitter, I began to think that Fergus Donovan’s usefulness as man on the inside and tipster outweighed the drawbacks that his intrusiveness presented. He knew this too – which was probably why he was lavishing this information and these drinks on me. Perhaps he fondly imagined that we might together form a mediatory bloc of some sort.
‘Does Mrs Donovan work?’ I asked (such an elementary question – that was how little I knew!). ‘No,’ Mr Donovan said. ‘She doesn’t work.’ He sighed. ‘I don’t know, maybe that’s it… maybe if she got a job …’
‘What are her finances like?’ I said. I was worried. She could take Donovan to the cleaners.
He regarded me closely, sensing that for the first time I was actively participating in a conversation with him. ‘She’s rich,’ he said simply. ‘Leaving Michael won’t hurt her, her father left her a packet.’
‘Her father?’
‘You must have known of him, he was a judge – Lord Tetlow.’
Donovan had married Arabella Tetlow! The daughter of his former head of chambers! Surprised as I was, a potential hazard sprang immediately to my mind: it might be thought by the court that, given his ambition, Donovan had married Arabella to further his career.
Mr Donovan changed the subject. The pre-trial review, he said, was a golden opportunity that could not be missed. Michael and Arab would see each other for the first time since July. He wouldn’t be there – he knew when he wasn’t wanted so it was for me to engineer a meeting of some sort. I had to ring up her solicitors and start talks – serious talks, not just mickey mouse exchanges.
I sighed. ‘You must understand that there is little I can do. The matter is not in my hands. It is up to Michael and his wife
to get together. I’m just a solicitor. I can’t snap my fingers and make things happen.’ I spoke tiredly but not irritably. ‘You must appreciate this.’
‘You can
enable
things to happen,’ Mr Donovan said urgently. ‘You can organize a framework.’
I gave a sad shake of the head.
‘Yes, you can!’ Mr Donovan was becoming excited. ‘You can! You plug away at your end and in the meantime I’ll work away at mine. I’ll get hold of Michael and talk some sense into him. Then I’ll get back to Arab. We may not be able to straighten this thing out, Jim, but we’ll give it our best shot. What do you say?’
He was being wholly unrealistic. No amount of agency, go-betweening and bridge-building would close the great, murky crack that divided his son and daughter-in-law. And there was something else he needed to be reminded of.