New Era for International Courts and U.S.

The New Year approaches with even more “new beginnings” than usual on the horizon. A new President of the United States and with him a new Administration for whom the latest polls have shown the people have great hopes and expectations will take office within the first three weeks of the New Year. If the media coverage and analysis is accurate the approach of the new administration to issues will be less ideological and more pragmatic than its predecessor. The now fully selected Cabinet and White House Staff is made up in the words of more than one commentator of “smart, strong,” and in some cases already “outsized personalities” already recognized on the world stage, who will be called upon in short order to shape a new global economic and geopolitical world order.

President – Elect Obama obviously is not intellectually insecure, timid or indecisive in the presence of strong, smart, competent people. Indeed, he apparently sees the inevitable debate among them on important national security and world economic issues as an essential prerequisite to insuring the quality of his decision-making processes. Hopefully a uniformly high quality of decisions will result from unfiltered information and opinions on all sides of these issues being thoroughly presented and considered before being resolved by the President.

That is particularly important in the development of the United States policy on the role of International Law and International Courts. As I noted in a previous column, during my recent visit to The Hague, Netherlands where many of these International Tribunals and other organizations are located, I noticed that judges and court administrators are both idealistic and realistic even in the face of United States skepticism about their role and value. In fact, as Daniel Terris, Cesare P.R. Romano and Leigh Swigert point out in their pioneering study of the international Judiciary in their book, The International Judge, “They are surprisingly patient and philosophical about U.S. objections taking a long view that stretches into the past and future” because they recognize that “when it comes to the intersection of international law and politics, no issue is more important or more sensitive than the role of the United States.

Unfortunately as Terris, Romano, and Swigert illustrate in their book, the recent hostility to not only specific decisions of international courts, but to the very idea of international law itself, which predated the Bush Administration, but without question intensified during the last eight years “poses a significant threat to the effectiveness of justice on a global scale.” It is not difficult to figure out why.

The rule of law depends on public trust and confidence in the Judiciary. Therefore while judges’ real independence from political prejudices and pressure is vital, it is equally or perhaps even more important that the judges’ independence be perceived and understood clearly. This is even more important for international judges and their courts than for domestic judges. The independence of international courts and judges is much more suspect because the very legitimacy of international law itself is still a matter of serious debate.

The debate over the legitimacy of “international law” is very real. It is ongoing and not without intellectual foundation. It should not therefore be dismissed or ignored. Rather all side of the debate should be reexamined carefully and respectfully, but not in an ideological straight jacket or vacuum. Those who favor the application international law through international tribunals should get equal time and consideration.

Critics of the application of international law even in limited circumstances to parties limited by a well defined Jurisdictional rule continue to sound the rhetorical and policy alarm bell when it is suggested that international law be applied to all. Former Federal Judge Robert Bork says, “International law is not law, but politics.” He then goes on to explain, “For that reason, it is dangerous to give the name ‘law’ which summons up respect to political struggles that are essentially lawless.” Former Secretary Of State Henry Kissinger reaches the same conclusion, but for opposite reasons. Kissinger says, “it is not law that needs to be protected from politics, but politics from law” warning that international adjudication “is being pushed to extremes which risk substituting the ‘Tyranny of Judges’ for that of governments.” “Far better,” Kissinger believes, “to allow political matters to take their course in the arena of diplomacy or even conflict than to allow “the intrusion of ‘unaccountable judges’ into the domain of diplomats.”

This criticism and these warnings have a familiar ring to them. They sound eerily like the usual right wing diatribes against judges generally which have been heard in this country in every election that I can remember. Their validity is dependent on a worldview which presupposes that states and individuals act purely on the basis of power. If that worldview is accepted then as Terris, Romano and Swigert concede “international courts are at best frivolous and at worst destructive.”

That worldview however is clearly not universally reality based. International courts have taken their place alongside a host of institutions that created or evolved from new and innovative forms of global politics, where non-governmental actors work alongside powerful governments where at times symbolic action plays as prominent a role as military might, where persuasion can and where governments have evidenced a stake in reigning in their own excesses if it also means reigning in the excesses of their former leaders, their neighbors and enemies.

This new world and reality should not be ignored. The fact that the interdependence of our world is not yet fully recognized is not a reason for our country to refuse to consider resuming our historical role as an advocate for international courts with binding authority. President William Howard Taft, not exactly a great liberal, called for an international court as “a better method of settling controversies than war” in 1910. President Theodore Roosevelt, not exactly a left wing pacifist type hailed “the great advance which the world is making toward the substitution of the rule of reason and justice for simple force. “

President-Elect Barack Obama should follow in their visionary footsteps with his usual eloquence and what appears so far to be his almost equally impressive organizational skills to point out to the citizens of the U.S. and the world that “when idealistic principals are wholesale surrendered to realistic politics, humanity becomes the victim.” Let us all hope on the contrary for peace on earth, good will to all beginning in 2009 through the application of international law. Happy New Year.

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