Conclusions

You've been involved with international law about forty years. I want to have a dialogue here between the young, idealistic Stephen Schwebel, who was at Harvard organizing and involved in international law, with Judge Schwebel who has now served on the World Court. What is your comment or evaluation about the possibilities of international law, and what has happened in this period, from the beginning of your career to the present? Should the younger Schwebel be disappointed by what has happened? I don't mean your career, but I mean about the work of international law and what's been accomplished.

Yes, somewhat disappointed, yes, yes. Now, of course, part of that may just be aging. We all, as we age, become somewhat less optimistic, idealistic, more realistic it's said, or cynical, or just tired. All those things are trite, and true. But, nevertheless, quite apart from that, I think it's fair to say that the United Nations has not lived up to the hopes that we held out for it in 1946, by and large, which isn't to say that it hasn't some very major accomplishments, and still great potential. But it's not lived up to the hopes of 1946, nor has the World Court. I think my expectations are materially lower. No doubt about that. Both as to achievement and even prospect and potential. Nevertheless, I would say, as a childhood friend of mine used to sign his letters to me, "keep punchin'," because what's the alternative? At least within the realm of present possibility, alternatives that are more attractive are not obvious.

So, it would be a mature evaluation of the idealism that the youthful Schwebel reflected, tempered by the limits of possibilities, but still very hopeful about where the law can go in the future.

"Very hopeful" might overstate it, but hopeful, anyway.

Help us understand what is involved in being a judge. What is the temperament that one must have to do the work of adjudicating in the international arena?

Most basically, one should have a capacity for and disposition to keep an open mind and to listen, and to fully weigh as objectively as one can the respective arguments of the parties. I say as objectively as one can, because total objectivity is an illusion. Everyone is a prisoner of his own experience. We all have a certain legal, as well as cultural and political, formation. But, nevertheless, it's been demonstrated for centuries in the affairs of mankind that in some significant, very significant measure, someone entrusted with the function of adjudication can judge not on the basis of what he's had for breakfast, but on the basis of more objective factors.

In the international arena, that may be particularly difficult, because not only do we have all the baggage of our national and cultural engagements to carry, but the law often is much vaguer and less crystallized than it is in a developed national system. And sometimes the facts may be very hard to get at. Now that's, of course, not unusual in a domestic litigation, too. But that may be true on the international scene, though usually it's not the facts that, in the end, prove so elusive as the law.

That's not always true. In the Nicaragua Case, there was great dispute about the facts. And the perspectives of different judges about the facts remains very different to this day.

How do we instill a respect for international law? [We already have a] problem of instilling respect for law at the national level. Is it much harder on the international level?

Yes, I think it is. First, there is the understandable desire of the decision makers in the state to be able to decide and [then] to do what they think is best in the particular circumstances. Therefore, the politician, the diplomat, isn't instinctively inclined to be constrained by legal considerations, except when they're operating in his favor -- when he would like, of course, to apply them. Now, that's quite simplistically put, because a more sophisticated view of it would be that law is an instrument by which to achieve social ends, internationally as well as nationally and locally; that it is a mechanism which permits the achievement of social ends in a far more organized and less destructive way than other modes; and that therefore the decision maker has a stake in making the process work, even if, in the particular case, he doesn't get what he wants. That's at least how it should be. But I'm not sure that it is.

There's a great tendency to look at the immediate and not the long range, at the trees rather than the forest. This is natural. So there is some strain between these considerations. Diplomats don't naturally incline to considerations of principle, or even precedent. They're more concerned with freedom of action and achieving in the short run what they want to achieve, while the legal perspective is much more one of principle and precedent, and building up a pattern of behavior which will apply to a diversity of like cases. There's a tension between these two perspectives.

Lawyers are not in control of the affairs of the world. We may think otherwise in the United States, where lawyers play such a prominent, some would say excessive, role. But this isn't true the world over, and isn't true in the direction of the international affairs of the United States either, though lawyers in the United States, Office of the Legal Advisor of the Department of State, have an influential role in many aspects of decision making of the United States, and I think that's a good thing.

Looking back at your career in international law, what truths can we extract about the conflict between states, and even the conflict between individuals? How do we achieve this ideal of peaceful resolution of conflict?

Ah, you've asked me a profound question to which I have no ready answer. If I could tell you how we could make the Security Council work, I would have discovered something quite remarkable. And if I could say how we can prevent states from resorting to force, and induce them to settle their disputes by peaceful means, particularly third party adjudication, invariably and effectively, I would have a remarkable discovery. But I don't know the answer to that question, and I'm not sure anyone does.

It's quite obvious to say that we can develop the law habit, that the more instances in which states are guided by legal considerations, have recourse to legal procedures, and successfully dispose of disputes by such recourse, the more they may be inclined to do it. That's obvious enough, but how you get them actually to do it, and recurrently do it, and build up these habits of recourse to legal process and respect for legal result, I don't know. I have no ready answer to that.

Let me ask you a fairer question. What factors might we identify that can help us to move down that road? Does anything in particular stand out in your mind? Is it a consensus about the importance of moving down this road?

Fundamentally, it's a question of building a sense of community internationally. What fundamentally makes law operate, in Berkeley or San Francisco or California or the United States, is a sense of community among the citizenry sufficient to support a structure of law and process, of a legislature, an executive branch, courts, police, taxes, all of this apparatus. Much of this is absent from the world scene. Even if you and I may regard ourselves as open minded, relatively enlightened fellows who can see the other side of the question and are free of nationalistic or racial dispositions, nevertheless, we don't have the same sense of community with an inhabitant of Mozambique or China that we do with an inhabitant of Berkeley or Massachusetts. That's the fact of the world, and until we get to that state, we won't have institutions and law that give effect to that state. How one gets from here to there is a matter of dispute. But it's generally accepted that if one ever does, it will be incrementally, by the growth of interdependence, and that is growing through communications, trade, and so on, and the perception that that interdependence can be constructively managed only through effective institutions. And one only has effective institutions, at least democratically responsive and descent institutions, if they're subject to the rule of law.

Judge Schwebel, I want to take this opportunity to thank you very much for helping us understand, both your life in international law, and the work of international law, and where we might go in the future with international law. Thank you very much for joining us. And thank YOU very much for joining us for this Conversation on International Affairs.

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