International Jurisprudence: The Best and Worst of Times
Following is the keynote address delivered by Theodore Sorensen at the 2003 Brandeis Institute for International Judges program in Salzburg, Austria.
It's a special honor for me to give the keynote address to this very distinguished institute. And it's a special pleasure to be introduced by my friend Dan Terris. When he asked me during dinner if I had any requests or suggestions about his introduction, I said simply, "make it factual, fair and funny." One out of three's not bad. I only regret that he emphasized as much as he did my service with John F. Kennedy because then you are going to expect that you will hear from me a talk as eloquent as those that John F. Kennedy gave, forgetting that he had a much better speech writer than I do.
But in any event, it is a speech that I am delivering tonight and not a lecture. I heard the difference being discussed at our table tonight. A speech is distinguished from a lecture. A speech is interrupted occasionally by jokes; a lecture is interrupted by footnotes. Since many of you spend a good deal of your time checking footnotes, I'm not going to impose that upon you. But a lecture, of course, is a scholarly analysis; a speech is opinion. I received a call from the American Embassy in Vienna this morning asking that I make clear to the audience that any opinions I delivered tonight do not necessarily reflect those of the President of the United States. I'm glad to make that announcement, provided they will also announce that some of those opinions expressed by the President of the United States do not necessarily reflect mine.
They did not need to worry. In over 35 years of travel abroad as a lawyer, I was quite careful not to criticize my government or my country's policies while abroad. And I made it a practice not to talk about a particular administration unless I could speak well of it. That might eliminate my speech entirely tonight. The fact is that the United States — in the field of international jurisprudence, as in virtually every other field, due to the preponderance of weapons, wealth and other materials that the United States possesses — is the 800-pound gorilla. You all know the story about the couple that claimed they had, as a pet, an 800-pound gorilla in their New York apartment. They were asked "Where does he sleep?" The answer: "Anywhere he wants!"
The United States follows that policy almost exactly. They demonstrated it most recently this month with the announcement that they — by they I mean the leaders of my country — are cutting off military assistance. That means money for arms, equipment, training, education, to 35 countries who have refused to grant immunity to any United States citizens who commit genocide, or other crimes against humanity, on their territories. Those 35 countries are those that subscribed to what I regard as the most important and the most exciting institutional development in the world of international law — the new International Criminal Court.
This was, in my opinion, an outrageous, high-handed, unprecedented action, short-sighted in the extreme. Cutting off assistance, for example, to Colombia where a narco-guerrilla rebellion is a threat to international peace and stability throughout the Americas. Cutting off aid to Croatia just on the eve of Croatia being required to modernize its military as it enters NATO. Cutting off aid to more than two dozen other countries that we had counted upon to help us in the war against terrorism, some of whom we expect and hope to help us in maintaining stability in post-war Iraq. A counterproductive move that will cost us friends and allies, that will cost us prestige and respect, that will only encourage the resentment of the United States as a unilateral bully, which in turn only facilitates the recruitment of terrorists to do harm to our interests, our people — business, tourists or otherwise — anywhere around the world. In short, it is a move that leaves all American citizens with diminished safety and security. A foolish move, but consistent with the U.S. government's current disdain for international organizations, international law, even international alliances.
My hope is that this will not continue indefinitely. As Winston Churchill once very wisely said, "History is just one damn thing after another." Because the pendulum swings, because context and circumstances and administrations change, I believe the enduring values of the United States are inconsistent with this disdain for international law. I believe that the American people, particularly the American legal profession, strongly support the concept of a rule of law, not only nationwide but worldwide.
I worked for a President who 40 years ago this summer delivered a commencement address at American University in which he called for a world of law, in which he called for a reexamination of the cold war, for a reexamination of our relations with the Soviet Union, for a reexamination of the meaning of peace, for a ban on nuclear testing in the atmosphere which was spewing poison into the atmosphere that affected the health of infants in all parts of the world. He acknowledged our differences with the Soviet Union, but then he said, "If we cannot now settle our differences at least we can join to help make the world safe for diversity. For in the final analysis, we all inhabit the same small planet, we all breathe the same air, we all cherish our children's future, and we are all mortal."
Those are American values that I believe endure today. Yesterday Richard Goldstone quoted Justice Jackson in his classic remark about the Nuremberg Trials, that the decision of the United States to stay the hand of vengeance was a demonstration of our commitment to a world of law. And so I think that the pendulum to which Churchill referred is going to continue swinging. One possible positive indication of that swing appeared in the newspapers last week, that members of the United States Supreme Court are even beginning to cite international decisions and occasionally foreign judicial decisions in their opinions. Justice Kennedy, who will be here in this group on Friday, was the latest to do so with a landmark decision regarding gay rights that was handed down just before the U.S. Supreme Court ended its last term. All this, of course, despite Justice Scalia's comment that such citations are dangerous, and Justice Thomas's comment — cited of course by Scalia — that members of the court must take care not to impose foreign fads and fashions on the American people!
But if today is the worst of times, why do I say it is also the best of times for international jurisprudence? Because I think the convergence of events in recent years has made international jurisprudence more important than ever before. The terrible attacks of 9/11/2001 made the world smaller. In the words of the Irish poet John Boyle O'Reilly,
The world is large when its weary leagues two loving hearts divide;
But the world is small when your enemy is loose on the other side.
The advent of terrorism and its obvious reach to every part of the world has truly transformed the world, as some have claimed for generations, into a single village, a global village.
I heard, not long ago, about a village in northeastern Hungary where an old man applied for a pension and finally a team of lawyers or judges from the central government came to hear his plea. And they said to him "We looked into the records very carefully. We find that you were educated in Lithuania, that you were first employed in the Soviet Union, that you were then employed in Byelorussia, that you were then finally employed in Russia and yet you want Hungary to pay your pension." And the poor man said "But I never left this village." You can look it up. It is a global village, and boundaries mean less and less. But we've come a long way, speaking of Hungary, from the day in December 1941 when my predecessor as special counsel to the president, my predecessor several times removed, Sam Rosenman, said to President Franklin D. Roosevelt:
"Mr. President, Hungary has declared war on us."
FDR said, "Hungary? Tell me about Hungary."
And Rosenman said, "It's a kingdom on the Danube, Mr. President."
"A kingdom?" says Roosevelt. "Who is the king?"
"Well, they're not governed by a king," said Rosenman "They're governed by a regent, Admiral Horthy."
"Admiral Horthy?" says FDR. "How large is his fleet?"
"They don't have a fleet, Mr. President. It's a landlocked country."
"A landlocked country? Well, what are their war aims?"
"Their war aims are to recover the lands lost to Romania at the end of World War I."
"Lands lost to Romania?" said Roosevelt. "Why are they declaring war on us, instead of Romania?"
He said, "They can't declare war on Romania. Romania is their ally!"
That's probably a true story. It is a global village. It is more and more a world where one country's actions are interdependent on every other country's actions. And that is particularly true in the field of jurisprudence. I think the ICC, which is already underway, will continue to go forth with or without the United States. They have a prosecutor, they have a superb panel of jurists, they are ready to go and I am very excited about that. The United States, sometime ago, withdrew from the compulsory jurisdiction of the World Court, the International Court of Justice, but the ICJ will go forward without the United States subscribing to that compulsory jurisdiction. I had the opportunity, when my wife and I attended the Nobel Peace Prize ceremonies for Kofi Annan, to meet and talk with the presiding judge at the ICJ and I asked him if he was busy, and rather sharply he replied, "Yes!" And I said "Good!" That took him aback a little bit, but I noted that for every additional five cases on the World Court docket, there are ten countries choosing to resolve their disputes by legal adjudication instead of by arms. And that is all to the good.
You may have noticed that my eyesight is largely gone. But my vision is not. I still have what my ophthalmologists call a 20/20 vision. Not perfect, but a vision for the year 2020 when it will be a true world of law. When international criminals, terrorists, or genocidists will be tried by the ICC and their domestic courts. When the World Court will continue to be busy resolving all serious disputes between countries. When our grandchildren will truly live under a world of law.
And that is why, may I say to all of you ladies and gentlemen, that the Brandeis Institute for International Judges this week is so important. So much depends on the intelligence, the integrity, and the independence of your work in formulating and implementing international law. For in the final analysis, we all inhabit the same small planet, we all breathe the same air, we all cherish our children's future and we are all mortal.
Thank you very much.