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 as regards many of the ways in which ‘hot topics’ may come before them).
But I would not necessarily say that recourse to the judicial system may not have significant political knock-on effects. True, there will be ‘compromise, dilution and legalese’, but judges have also been known to be able to cut through all this. Marko Milanovic has implied in our latest discussion on this blog that common law judges, in particular, are capable of producing ‘wonderful prose’. So they are, and such creative writing will have a potential of being widely understood even outside the legal world.
Also, it all depends on how a judicial decision or statement is popularly reported. Obviously, important cases will feature on the news. They may be, and often are, presented not entirely accurately, for instance if the media misinterpret the holding, fail to understand the procedural and substantive legal setting, or quote bits of the judgment that may not be fairly representative of the whole. Lawyers may resent that, but it will almost certainly increase the political weight of the case.
If I may give one example for what must surely be a fairly simple point: the House of Lords decided the so-called Belmarsh case in December 2004 (A and Others v. Secretary of State for the Home Department (No. 1) [2004] UKHL 56, [2005] 2 AC 68). That case really only established that the UK’s derogation from Article 5 ECHR (the right of physical liberty) was discriminatory, and hence in violation of Article 14 ECHR (non-discrimination), from which there had been no derogation. There would have been ways of accomodating the judgment by fairly small corrections: the UK could have entered a derogation also in respect of Article 14, or it could have extended the problematic domestic legislation (a power of indefinite detention of terrorist suspects) to also cover British citizens, thus removing the discrimination. However, the media had uniformly reported the case as pretty much wiping the floor with the statute. There would have been no way, I assume, that the Government could have defended micro changes to the legislation by explaining the import of the judgment, thus engaging in legalese of the highest order itself.
As it happens, that case may also illustrate another point that I alluded to earlier: in formulating their decision, some of the members of the House employed fairly strong language. These ‘money quotes’, I suppose, gave the impression that the fault with the legislation was far worse than the more or less technical point on which the judgment actually came to rest. So in a sense, their Lordships did wipe the floor with the statute; not in substance, but in rhetoric. [They may also thus have suggested that they would show restraint for now, but that micro changes would not survive a renewed challenge before them.] This, then, joins the dots of my previous points: judges can express themselves in a manner that is widely understood, and the media can use this (but do not depend on this) to give political force to a judgment.
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. They ceded the social/public discourse ground and need to convince people to the right and just tried to fight back the tide “in court”, losing a bit day by day until the real “conservative” radicals took office and are continually trying to dismantle everything while the liberals whine that it is illegal to do this and that.
That is something enviro and human rights people should keep in mind. Winning one case or getting a law on the books, as good as that can be for an individual client, is useless for the larger world unless you get people to agree with the overall causes and have popular support. See how quickly “but it is illegal under IL” arguments were (and are) simply ignored when push comes to shove.
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, but you catch my drift – as ‘grundsätzlich‘. This word is used by German lawyers to mean ‘in principle’ (i.e. there are exceptions), but by nearly everyone else as meaning ‘always’, ‘without exception’.]
The group then goes on to exort people to defend international law by signing a petition against nuclear weapons. Now, I do not claim that this one group means that the opinion has taken on great political weight – on that, I tend to side with Thanatos – but it is something.
Incidentally, let’s not forget that the opinion was requested for blatantly political reasons. Not by private activists, I grant you, but by a great number of States taking on a fairly similar role.