International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2010 Issue








International Law and the Duty of Judges

Dr. James G. Apple By: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

(This editorial has been adapted from remarks made by Dr. James G. Apple at the 10th Conference of Chief Justices of the World in Lucknow, India in December, 2009)

In the late part of the decade of the 1990s, with the Cold War ended and not only a new century but a new millennium on the horizon, I had a belief, naïve as it turned out, that the two beginnings that would occur on January 1, 2001, the beginning of  a new century and the beginning of a new one thousand years, would mark the advent of a new time of peace in the world. That date gave the nations and the peoples of the earth a unique time of history to put away old antagonisms and chart a new course where those nations and those peoples could sit down and begin solving most, if not all, of the earth’s looming problems. These looming problems include: developing mechanisms for ending war and preserving peace; protecting the human rights of all peoples; ending racism, tribalism, sexual repression and other forms of discrimination; combating diseases and plagues that continue to arise in different parts of the world; stopping pervasive environmental degradation; developing a sustainable standard of living for all peoples; and developing mechanisms for meeting the challenges of climate change.

The meetings of nations in 1997 in Kyoto, Japan that began the task of addressing the challenges of global warming; and the creation, first in 1993 and then in 1998, of international criminal courts to address issues of genocide, war crimes and crimes against humanity, seemed a harbinger of my expectations for the new century and the new millennium.

This dream of mine was in some way analogous to the period preceding the beginning of the another century, in 1899, when again the world seemed poised to do away with the scourge of war. The Peace Conference of 1899 in The Hague, Netherlands; the establishment that year of the Permanent Court of Arbitration, the world first international dispute resolution body; the receipt of funds to build the Peace Palace from Andrew Carnegie, an immigrant to the United States from Scotland; the moves to restrict the means of warfare; all seemed harbingers of a new century of peace. It took thirteen and one half years to dispel that noble notion, blown away by one shot from an assassin’s gun on the streets of Sarajevo in June 1914. That act of violence ushered in an era of unsurpassed bloodshed and violence. The rest of the century saw two world wars, horrible regional conflicts, and genocide on a scale that even in the desensitized populations of the world today is almost unbelievable. An agency that tracks world conflict has recently reported that there have been 300 wars in the world since the end of World War II, the vast majority occurring before the end of the 20th Century.

My dreams of a peaceful world after January 1, 2001 were not to be. The dream was partially shattered by the events in New York of September 11, 2001. And they were completely destroyed in March, 2003, when military forces of the United States crossed the Iraqi-Kuwait border to begin one of the “first wars of the 21st century.” Instead of thirteen and one half years to destroy the hopes of peace for a new century, it had taken only two years and three months to dispel completely that hope. The conflicts that have arisen in that area of the world continue, and the United States seems locked into a condition of perpetual war.

In one more year the first decade of he 21st Century will have ended. The world has ninety more years to the end of this century to prove or disprove that the 21st century will be but a repeat of the 20th, with the human species exhibiting more and better ways to destroy its kind, and setting new records of numbers killed in wars and genocide, to prove or disprove the dream of a world community living in world peace.

What will historians say about the 21st Century? Will that it equaled or exceeded the 20th century in terms of war and violence and bloodshed, in numbers killed in genocide? Or will they look back on the 21st Century and say that, despite its poor beginnings, as marked by the events of September 11, 2001 and March 17, 2003, the 21st Century proved to be a watershed in human history, a century of abiding and enduring peace, when “swords were turned into plowshares,” to borrow a phrase from the Christian Bible.

International conflict and international peace have up to this time been almost the exclusive domain of politics and politicians of the world. But it is not an exaggeration to state that they, the politicians and even the statesmen of the world, have not done a very good job of preventing war and preserving peace. Perhaps it is time for the judges of the world to involve themselves in those tasks. Judges are, after all, supposed to excel in the business of resolving disputes and conflicts.

The judges of the world can have something to say how the 21st century turns out, how the next 90 years will be viewed by later historians. One way to do this relates to the role of international law in world affairs.  The history of international law is a special interest of mine. The history of international law is not a seamless upward march toward universal acceptance of a law of nations and of all peoples in its now many variant forms. It is a history of dim origins, of fits and starts, of recognition and non-recognition, of praise and scorn. Even in the late 20th century in the United States, and in the first decade of the 21st, there were and are persons and groups of persons who deny the existence of international law.

However, there is now greater hope for the role of international law and the role of international dispute resolution tribunals in the world. One of the brighter sides of the 20th Century was that international law expanded in content and scope around the world. Since the end of World War II international law has come more and more into its own. At the end of that war there was arguably only four kinds of international law: the law of nations, or public international law, which relates to legal relations between states, which included such areas as the law of treaties and the law of diplomatic relations; nascent laws relating to private international law and intellectual property law; and international humanitarian law, or the law of war. Now there are many kinds of international law, many discrete bodies of law that have been spin-offs from public international law: international human rights law, international labor law, international environmental law, law of the sea, international criminal law, international trade law, international health law, international transportation law, international intellectual property law, a growing private international law regime, and even international space law.

The same is true for international courts and international dispute resolution tribunals. In 1945 there were only three international dispute resolution tribunals. One was the Permanent Court of Arbitration, still existing after its creation in 1899. There was the International Court of Justice, created by the United Nations Charter as the successor court to the Permanent Court of International Justice that resulted from the Versailles Treaty of 1919, which ended World War I. Now there are over 25 international courts, a number which may soon grow to over 40, some global in their jurisdiction and some with regional authority.        

But there is a problem with international law. It still has not truly entered the “marketplace” of ideas and principles which should govern global affairs, so that its principles and mandates will have a significant effect on world events. In the market place of ideas, international law is not yet a major player, a dominant force, something to which nations and individuals can turn in times of crisis as well as calm, to provide solutions to international problems.

That is in an issue to which the judiciary of the world can address. There is a current political controversy in the United States that relates to the judiciary citing, or using, or relying on, or receiving enlightenment or inspiration from, foreign sources of law, whether they be from the judicial decisions, statutes, principles of law from another country or from international law. The debate has even become so focused and national in character that the recent Supreme Court Justice Nominee (now Supreme Court Justice) Sonja Sotomajor was asked in a U.S. Senate hearing to “affirm” that she would not use foreign law in cases involving constitutional interpretation. Hopefully Justice Sotomajor and the other Justices of the United States Supreme Court will ignore those who have a regressive view of the values of foreign and international law in constitutional interpretation and use that available wisdom in appropriate cases.

One of the ways to make international law in all of its many forms, is to start using it. Judicial leaders in the different countries around the world can make a difference, by the simple expediency of using the authority and force of their offices to bring into their local jurisprudence the great principles of international law and apply them in appropriate ways in cases and controversies that come before not only the highest courts of those countries, but courts of first and second instance also. Only if judges begin to acquaint themselves with the principles of international law and apply them in their own courts, can international law be built into a world and dominant force for good.

But, of course, judges must know about international law before they can use it. If the situation with respect to knowledge and use of international law in other countries is anything like that in the United States, then there is a widespread academic condition in countries around the world of international law not being a strong part of the curriculum in law schools, or even existing in the curriculum. Nor is it a subject of much attention in continuing legal education programs for judges and lawyers in most countries. The burden is on judicial leaders in all countries to make certain that international law is taught to judges, is taught to practicing lawyers, is taught to Ministry of Justice officials, is taught to law students who will become legal practitioners.

The United States is slowly changing with respect to the dissemination of the principles of international law. When I was a law student in the U.S. in the early 1960s, there were no courses on international law. Now, most if not all U.S. law schools have at least one course on international law. One of the major law schools in the United States, in Washington, D.C. where the International Judicial Academy is located, has over 100 courses on international law in its regular and graduate law student program. Some law schools are now making international law a required course for graduation. So there is a trend and judges must take action to encourage and strengthen that trend.

I will not be modest in saying that the International Judicial Academy is doing its part to spread the word about international law. For five years, beginning in 2005, the Academy has been conducting  a week long seminar in The Hague, Netherlands, on international law and international courts for United States judges. That seminar is called the Sir Richard May Seminar on International Law and International Courts and is conducted in September of each year. The seminar has been primarily conducted for United States judges but participants have included some judges from Latin America. The Academy also conducted, in April of 2009, a seminar for U.S. judges in Strasbourg, France, on international human rights law. All of these seminars have been well received by the judicial participants.

It is incumbent on the leading jurists of the world, and leading judges in individual countries, to take up the banner of international law. Judges must take leadership roles in starting the process in their respective countries to set up appropriate institutions and programs to educate fellow members of the judiciary, Ministry of Justice officials, lawyers and other justice sector officers and officials about international law, its principles, its usefulness and its application in international affairs and in domestic or municipal legal systems.

International law, in my opinion, is the last best hope for humanity. It can be the foundation upon which a peaceful world can be built. And it can be the reason why, when historians in the distant future look back at the 21st Century, they can say that it was the century of international law. It was the century of peace in the world. That is the legacy we should strive for in the remaining 90 years of this century, and the legacy we should leave to the children yet to be born in this century. 

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© 2010 – The International Judicial Academy with assistance from the American Society of International Law.

Editor: James G. Apple.
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