02 Nov Keep Away From the Lawyers! Keep Away From the Courts!
I have been reading a fair bit lately by and about Albert Schweitzer for a writing project. One of the interesting segments of his life was his active role in the 1950s as an international norm entrepreneur hoping to change world opinion about nuclear testing.
In many respects the public campaign to ban nuclear testing is quite similar to current campaigns to heighten awareness about global warming (or earlier campaigns about ozone depletion). There was a sense of public lethargy about the issue, and it was the scientists who sounded the alarm bells about the radioactive hazards associated with atmospheric nuclear testing.
But here is the interesting thing. When the leaders of the movement to ban nuclear testing were plotting about how best to combat the problem, there were some who wanted to take the legal route and bring a case before the International Court of Justice. Schweitzer would have none of it. He strongly felt that public opinion would not be influenced by what happened in courts and that, in any event, international lawyers and judges could not be trusted with the issue. Here is an excerpt of a letter to Norman Cousins dated May 17, 1958 (available in this book):
I do not agree that we should appeal to the International Court in The Hague…. [I]f ever it should make a sentence or an expert statement, it would be expressed in judicial language full of clauses, with the effect that nobody would know what to think of it. It would not be of any use in the struggle against atomic arms. The lawyers would have been the ones to use and raise the argument that atomic weapons contradict the law of humanity; but they were silent and have failed. Therefore we will leave them out of the game. They would be but unreliable allies. Keep away from the lawyers, keep away from the courts….
Our purpose in expressing the argument that atomic weapons contradict international law is to arm the hands of the opponents of atomic weapons … in order that they may shout it all over the world. It is evident that atomic weapons are contrary to international law. People will believe it … because it is based on human and moral reflections. We don’t need the lawyers’ blessings. History shows how it is their role to pour water into the neat wine of the law of humanity and to construct compromises.
Our task is to raise our voices permanently in order to awake those who are still asleep and to build up a public opinion which is capable of bearing pressure upon the governments….
You can tell your friends that I do not think much of an appeal to the International Court in The Hague, and that I will not join it…. I am fighting the nuclear danger; but it is not up to me to judge the lawyers….
That is a pretty powerful indictment of international lawyers. But his essential message is that in a public campaign to develop international treaties such as a nuclear test ban treaty, lawyers and litigation are of very limited use. They will dilute the arguments, speak in legal jargon that is inaccessible to the public, and make compromises.
If one fast forwards to the present, one can argue that the best way to heighten public awareness and concern about an issue like global warming is too keep away from the lawyers and the courts. Public opinion is not going to change because of some legal argument forcing the EPA to act under a careful parsing of the Clean Air Act. Did Massachusetts v. EPA have the slightest impact on public opinion, especially in comparison to the Nobel Peace Prize (or even the Academy Award for An Inconvenient Truth)?
I’m only speculating, but I would hazard that if Schweitzer were alive today, he likely would argue that certain environmental threats are a violation of the “international law of humanity.” And he would be dismissive of arguments that litigation before courts and international tribunals is the proper path to combat a threat like global warming or ozone depeletion. It will only lead to compromise, dilution, and legalese. Better to keep the lawyers out of the game. Instead, rely on the scientists to sound the alarm bells and change public opinion. Once public opinion changes, then the politicians will be forced to act.
That is not necessarily my view, but I suspect that would be Schweitzer’s attitude.
I suspect the comparison between lawyers and scientists, and between nuclear weapons and climate change, is not perfectly apt. Judges will frequently, and entirely naturally, fail to act in the way that activists on a certain issue would like them to, if they are not told by scientists about the precise nature of that issue. Massachusetts v. EPA might not be the best of examples here, but only if we think that it was a straightforward exercise in statutory interpretation, uninformed by scientific opinion on the realities of global warming. The Nuclear Weapons opinion of the ICJ may be a better example. I find it unlikely that the Court would have said what it has said, had it not known about the effects of nuclear weapons on the environment, and about the horrendous way in which the things work. Of course, that takes me to my second point, about the comparison of nukes and climate change: everyone knows that nuclear weapons are awful; I don’t think anyone would argue that their use did not have serious negative effects). Simply put, on many issues, the scientists will have to be the first to act, because judges depend on them (at least… Read more »
Wrong link to the Belmarsh case; this should be better.
Tobias,
I actually think the ICJ’s Nuclear Weapons decision is a case study in what not to do if you are an international norm entrepreneur. It was precisely the kind of decision that Schweitzer feared would come from lawyers and courts, leading to compromise, dilution, and legalese.
Schweitzer was making moral arguments about nuclear weapons and the “law of humanity.” The ICJ, by contrast, did a perfectly decent job examining state practice and existing treaties to declare the possession of nuclear weapons consistent with international law. For opponents of nuclear weapons this was a disaster. The lawyers and courts proved unreliable allies.
The strategic decision to take the Nuclear Weapons case to the ICJ backfired miserably did it not? It certainly did not advance the cause of those who oppose the possession or use of nuclear weapons. Those advocates would have been better advised to never bring the case unless they were almost certain they would win.
Roger Alford
Schweitzer was very likely right. One of the main conceits of lawyers is that they think that the law, and by extension, they, are in uniquely great positions to change the world. They are not. Law is retroactive and conservative by design. The ICTR and ICTY did little to nothing for the actual victims — same thing with Darfur and whatever other massacres lawyers will argue about after they have taken place. Even in the US system, the main cases seen as showing the power of the law, such as Brown v. BOE, are few and far between and Brown never would have happened without the overall civil rights movement; it can be argued that as noble a strategy as it was, it was at best a complement to what was already moving faster in the public mind. Not to dismiss law too much since at watershed moments it can help lock in certain protections once they are achieved. But without the popular movement/mindset law does nothing and that is one reason why in the US liberals relying on the “law” and all the hot shot liberals in law school lost for so long to basic conservative rantings and ravings.… Read more »
Roger, I guess I got rather carried away there. I didn’t actually mean to present the Nuclear Weapons opinion as an example of how a court may please activists like Schweitzer. I meant to say that it is a ‘better example’ than Massachusetts v. EPA not in the sense that it is better than that US case, but in the sense that it better illustrates my point, which was simply that judges sometimes cannot help but follow, rather than lead, scientists. I also forgot to mention the Nuclear Weapons opinion as an example of how (mis-)reporting a case can give it a considerable political dimension that its authors may never have intended. There is a political group on the political Left in Germany called ‘Aktion Völkerrecht‘. This translates, albeit inelegantly, as ‘Action on Public International Law’. They stand in shopping malls and the like, explaining on banners and in speech that the International Court had held that the use of nuclear weapons is unlawful. [Their misunderstanding is easily forgiven: the German translation of the opinion puts the all-important ‘in principle’ in the sentence ‘the use of nuclear weapons is in principle unlawful – which may not be the actual wording,… Read more »