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2.21_Board of Governors Professor of Law, Roger S. Clark Discusses International Law
19 Plays4 years ago
Internationally renowned expert on global issues including nuclear disarmament, human rights, international criminal law, and U.S. foreign relations law, Roger S. Clark shares some of his career highlights with Co-Dean Kim Mutcherson. Professor Clark has worked for the New Zealand Justice Department and Ministry of Foreign Affairs, served on the U.N. Committee on Crime Prevention and Control, and represented Samoa and the Marshall Islands before the International Court of Justice.
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The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers the prestige and reputation of a large, nationally-known university combined with a personal, small campus experience. Learn more by visiting law.rutgers.edu.
Series Producer and Editor: Kate Bianco
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Transcript
Introduction of Guests
00:00:12
Speaker
Hi, my name is Kim Mutcherson, co-dean of Rutgers Law School in Camden, and this is the power of attorney.
00:00:19
Speaker
I am here today with my colleague Roger Clark, who is a Board of Governors professor here at Rutgers University, and who has had, I think, what can fairly be called a pretty astonishing career. So it's really wonderful to have you here, Roger, and I'm looking forward to the conversation that we're going to have over the next 40 minutes or so.
Choosing Law as a Career
00:00:42
Speaker
So the way I always like to start this podcast is by asking people their origin story of all the things that you could have done with your life. You decided to get not just a law degree, right? I mean, you have multiple degrees, LLMs and all these other sorts of things. So why law? What was it that appealed to you about the idea of being a lawyer and then what brought you to legal academia? Well, you know, I grew up in New Zealand.
00:01:12
Speaker
and in New Zealand law as an undergraduate degree. And as I was getting to the end of my high school career, it was pretty clear that my cousin and I was about the same age. We were the first in our family both to graduate high school and then go on to university. I didn't know many university graduates apart from teachers, so I took an aptitude test. And the aptitude test said I should either be a minister of religion or a lawyer.
00:01:40
Speaker
Now I knew several ministers of religion and I knew that wasn't for me. It's just not my thing. I'm not a great believer and that wasn't going to happen. So I thought, well, I better study law. I think that I should have drawn it was a stupid test and I should have ignored it.
00:01:56
Speaker
But in the events, I went off to university to study law as an undergrad. But I hedged my bets because you could take a double degree, a Bachelor of Arts and Bachelor of Law.
Academic Evolution
00:02:09
Speaker
And I was actually the only one at my year who did that, although that changed a lot in New Zealand since.
00:02:15
Speaker
So I studied mostly history and political science along with the law. And along the way, I concluded that I found the law much more interesting and very exciting, actually. I also found that I was fairly good at it. So the way study went in New Zealand in that day, most
00:02:37
Speaker
law students after a year or two went part-time. I got a job initially with the Ministry of Justice working in the court system. Then I had a year with the Ministry of Foreign Affairs. Actually, the Foreign Affairs bit was really quite disappointing because
00:02:56
Speaker
I applied for this job and I didn't get it and I found afterwards that not only was I not successful but as only applicant and I didn't get the job. That's a bit of a blow to the ego. I reapplied for the job in the legal office of the Ministry of Foreign Affairs and I got it and I spent a year there which was really a very formative and exciting year and I
Transition to Teaching
00:03:22
Speaker
learned enormous amount. There were three of us who ran the whole of the
00:03:25
Speaker
New Zealand legal system, well, the international part of it. And that was very exciting and interesting work. But towards the end of the year, I got a call from the dean at the law school who said, I want you to teach for me next year.
00:03:42
Speaker
And I said, well, all right. What does it entail? And he said, well, how much are they paying you now? And I told him what it was. He said, well, we'll give you another hundred dollars a year to come up and work at the university.
00:03:56
Speaker
And I told my boss at Foreign Affairs about this and he said, yeah, well, we very nearly didn't hire you because we called the dean and said, well, should we hire this guy? And the dean said, well, no, because I'm going to hire him. But of course, nobody had told me that. So I figured I should try the academic go well.
Activism and Its Impact
00:04:18
Speaker
And if I didn't like it, well, rethink.
00:04:20
Speaker
And I tried not to burn my boats at Foreign Affairs, although I did succeed in burning them totally because New Zealand was just getting involved in the Vietnam War at this point. And I was a very visible opponent of the war. With the result that I've never done any consulting work for the New Zealand Ministry of Foreign Affairs. I've done a bit of work in subsequent years for the New Zealand Justice Department. And I've done some work for small Pacific Island states.
00:04:48
Speaker
But I burned the boats there and to the extent that I had put the fire out some years ago, there were other issues like the independence of East Timor and so on. I got offside with the New Zealand establishment. So yeah, frankly, I was a gadfly. Yeah.
00:05:04
Speaker
I must rather have it that way. I think it's just really important that academics stick their necks out and say things that are important. Absolutely.
Human Rights Advocacy
00:05:15
Speaker
I feel like one of the things that is a hallmark of several folks who work at our law school
00:05:22
Speaker
is that they're what I would call academic activists, right? They're people for whom certainly academia is important and scholarship is important, but that part of the power of being a law professor is the things that you can do outside of the law school. And I would love to talk about some of those things because there's so many interesting things that you've done
00:05:43
Speaker
And I think you think it's fair for me to describe you as an expert in human rights and international criminal law, or would you describe yourself otherwise? No, I think that's fair. Well, I've done stuff that's a little broader than that. I did quite a lot of work on decolonization. I think it was a human rights issue. I mentioned East Timor. I spent a lot of time trying to get the United States and the French out of their colonies in the Pacific.
00:06:13
Speaker
And I think, you know, that was really important stuff to be doing and not totally spent. I mean, there's still some issues like the Shagas Islands and Western Saharan that haven't totally been resolved. But I think that was an important part. And again, I'm included in the notion of human rights. Oh, I must say that at one stage, I got in a big fight with
00:06:35
Speaker
Amnesty International over East Timor. And they said, well, self decolonization, self-determination is not our issue. We're into human rights. We're in the old and denied their civil and political rights and being tortured and so on. And, you know, I responded, look, I think that's a very narrow view on life and a fundamental problem in a place like Indonesian occupied Timor or in what the French are doing in the Pacific.
00:07:04
Speaker
is denying their people their inalienable rights to govern their own affairs and make their own mistakes and so on. So I think that's always been a very interesting question about how you define the field that you're working on. And I should add that
00:07:23
Speaker
Well, I'd got interested in human rights, I think, from a young kid, actually. In high school, I read Private Beloved Country and subsequently got quite involved in New Zealand and anti-apartheid activities. But when I went to Columbia to do graduate work, I wrote my doctoral dissertation on what was then a proposal to create a United Nations High Commissioner for Human Rights.
Pioneering Human Rights Education
00:07:52
Speaker
And as it turned out, I was 20 years ahead of my time. I thought it was going to happen in the late 60s or early 70s. It didn't happen until the 1990s. But I was excited about teaching human rights. And the deal I negotiated when I came to Rutgers in 1972 was that I teach criminal law and torts as long as I could teach human rights. And I think we were about the sixth or seventh law school in the country to have, of course,
00:08:21
Speaker
on human rights. And I did that for
Involvement in the International Criminal Court
00:08:25
Speaker
many years. And then I got a little diverted because in the mid 1980s, I got elected to what's best described as a Mickey Mouse little UN committee called the Committee on Crime Prevention and Control, which was into, well, for the most part, standards in criminal justice.
00:08:42
Speaker
So I moved a little more from sort of broad human rights issues more into the international criminal law as it became. And then from that, I diverted a bit again. The Samoan government asked me to participate in the negotiation to create the International Criminal Court from 1995 onwards. So by this stage, I was teaching a course that I called International Criminal Court and International Criminal Law.
00:09:11
Speaker
And other people like Beth Stevens came along and picked up the human rights course and did great things with it. Took it, you know, be warned what I could and doing it as a clinical course and
Comparative Human Rights Focus
00:09:23
Speaker
so on. So, you know, I've covered a range of issues through there. And, you know, we have our little pigeonholes, don't we? And I'm not sure that human rights is just a great pigeonhole to put the whole thing in. Absolutely.
00:09:38
Speaker
Well, so there are a few different questions that I want to ask you based on what you said. So one of the things that I say to my students often, you know, I teach South African constitutional law, I teach it as a health and human rights course. And so we sort of start by helping the students think through, you know, what is it to talk about human rights as opposed to talk about, you know, constitutional rights, which is what we so often talk about.
00:09:59
Speaker
in the United States. And one of the very cynical things that I say is that the US is not a regime that necessarily concerns itself with human rights. And by that I mean, the ways that I might talk about human rights in the South African constitution, which is completely human rights based, is very different from how we talk about rights in the United States. So do you feel like that's a fair statement for me to make? Or do you think that I'm being unfair
00:10:29
Speaker
to the US in saying that we're not really a place that's about human rights. I know you're not unfair at all. And in particular, it comes out with the whole collection of what the UN calls economic, social, and cultural rights, which are really important in the South African Constitution and aren't in ours. And I've often felt, and I had a great student of American history, but FDR headed off in that direction.
00:10:56
Speaker
It was important to him. It was important to him to get the United States into the International Labor Organization, even though he couldn't get them into the League of Nations and so on and his, his poor freedoms were all about those kinds of issues.
00:11:11
Speaker
And when Eleanor Roosevelt was working on the Universal Declaration of Human Rights, it was very important her to carry through and have stuff on economic, social and cultural rights. And then somehow the United States lost the picture in the 1950s.
00:11:30
Speaker
and turn much more inwardly. And the Warren court did really important stuff on civil and political rights and civil liberties. But we lost the notion about broader social material and solidarity rights, if you like.
00:11:52
Speaker
And events of the last four years are a good example of that problem in so many ways.
00:12:00
Speaker
in which we don't care about everybody else. Absolutely. One of the things that's really interesting and also challenging in my South African Commonwealth course is as we're working through the constitution from South Africa, which as you know, has all of these positive rights. You have a right to water, you have a right to housing, you have all these different things. And the students are often so resistant.
00:12:23
Speaker
to those ideas. The idea that the government could be obligated to make sure that you have adequate housing and all these different things. And as somebody who's been teaching human rights and international law for a very long time in the United States, have you seen any sort of shift in the students who you've been teaching over the years? Do you feel like
00:12:48
Speaker
you know that younger generations are starting to appreciate human rights regimes more that they sort of see the contrast between the US and some other countries or or are we
Student Engagement in Human Rights
00:12:58
Speaker
all are we doomed. I think what is quite disappointing is that
00:13:03
Speaker
Many of the students that I get, not all, but many of the students I get in my courses have never thought about this stuff before. And I hope I get some of it across to them. You must have the same experience. Yeah, absolutely. They just haven't been exposed to that kind of material in high school or college. I grew up in a country where it was second nature. You did these kinds of things. And in some ways,
00:13:32
Speaker
there was more emphasis on the social and cultural material. Now, not many suggest that New Zealand is perfect and terrible problem with race relations, which has been working on. And in many ways, the whole South African issue was a catalyst for getting that off the ground. When I was in college, New Zealand and South Africa were the two best rugby teams in the world.
00:13:56
Speaker
and New Zealand took a team to South Africa, took an all-white team, left behind as Maui's and Saman's. I think most people thought that was okay, you know, you're inside with local customs. Well, a lot of us thought that wasn't okay. You said it wasn't their team for the start, which is pretty stupid. And then what did it say about us? And I think those conversations
00:14:18
Speaker
were much more about us in many ways than they were about South Africa. Part of it was part of it. But to think that we would actually do that was unimaginable. And it became a very big issue and so on. And when I came to the United States in the late 60s, again, people hadn't thought about those kinds of issues. Surely we're thinking about race relations in the United States.
00:14:43
Speaker
that hadn't thought about the bigger picture of how that fit into the events in South Africa, for example, or the Vietnam War and what that meant in terms of racism and aggression and all of those kinds of things. There were some people at Columbia who thought about that, but not a hell of a lot. To go back to about the students, my impression is that in the 70s when I first started teaching here,
00:15:12
Speaker
There was always a strong leavening of people who came to law school to change the world. Their experience, they worked for non-governmental organizations and so on. And they thought this is the next stage, go to law and continue with it. And I think a lot of them ended up doing exactly that. And then I don't know that we had a lot of them for 20, 30 years there, but I'm finding them again.
Purpose of the International Criminal Court
00:15:39
Speaker
You know, I've been in touch with, with quite a few current students or recently graduated ones in the last years, they seem to have some of that excitement. I want to get into, I want to get into some of the specific work that you've done because you've had an opportunity to just participate.
00:15:55
Speaker
in some really wonderful and amazing things. So you alluded a little earlier to the International Criminal Court. So as a starting point for folks who don't know anything about international law, don't know how any of this stuff works, what's the International Criminal Court? What was the purpose of it? What was it meant to achieve? Well, the idea of the International Criminal Court goes way back, but specifically, particularly, it goes back to the Nuremberg and Tokyo trials.
00:16:21
Speaker
and the notion that we had that it was proper to apply law to evil of a very significant kind. And the euphoria on that over the next three or four years, the United Nations General Assembly talked a lot about starting a permanent international criminal court, which would try things like genocide crimes against humanity, serious war crimes, and maybe some other crimes.
00:16:47
Speaker
It was an idea that, for example, the United States pushed strongly for a few years as it had pushed after the Nuremberg and Tokyo trials. But again, that petered out an American thought in the early 50s and the Soviet Union, who'd been enthusiastic about the lost interest too. And the issue went way, way, way back into the back burner. In the late 1980s, the then Prime Minister of Trinidad and Tobago,
00:17:17
Speaker
who later became the president of Trinidad and Tobago, suggested in the General Assembly that we ought to revive the idea and have a court. And sometimes in life, the time is right. And the idea started taking off over the next couple of years. And then the Security Council decided to create courts to deal with the events
00:17:45
Speaker
Formigoslavia and Rwanda. And, you know, I'm a cynic in some ways and I thought I did that largely because they weren't prepared to do anything more. And this was a good way to say face and look as though you were doing something. But it was an idea that really caught on. And thus a lot of smaller and medium sized countries said, well, this is great. But Nuremberg and Tokyo were done by the vectors, Formigoslavia and Rwanda
00:18:14
Speaker
were done by the big guys and a lot of awful things. These came along South Africa, lots of things that we could have brought to this kind of tribunal, but they're not. It's too ad hoc. And what we need is a permanent court. So the idea is kicking around in the General Assembly for a couple of years. And in 1995,
00:18:36
Speaker
the General Assembly had a so-called ad hoc committee, which is what everybody can turn up to, to talk about doing something, creating a court. And it was at that stage that a former student of mine, who was for some years the Attorney General of Samoa, and then their representative in New York said to me, I need some free work done.
00:19:00
Speaker
Will you work on this for me? He said, I think it's going to happen. And I said, well, I don't think it is. It's been around for a long time. It'll be fun. And I'll write a smiley little article saying, well, it went wrong. And he said, no, no, no. I think it's going to happen. So that was 1995. And I started attending meetings. And it was clear after a while it was going to take off. And to cut a long story short, we met in the middle of 1998 in Rome.
00:19:29
Speaker
to create the treaty setting up the court, jurisdiction over genocide, crimes against humanity, war crimes, and complicated, the crime of aggression.
00:19:43
Speaker
I made a lot of predictions about this. I'm including the one, as I said before, this isn't going to happen. No, it's wrong. We now had a treaty and somebody from the Christian Science Monitor interviewed me about three o'clock the morning after we had this euphoric session adopting the treaty. And he said, how long will it take to get enough
00:20:00
Speaker
States party to. We needed 60 to bring it into force. And I said, well, 10 years, maybe not in my lifetime. So I was wrong by about six years. We had enough parties to bring the thing into force. And it was often running.
Challenges in Prosecuting War Crimes
00:20:15
Speaker
And look, I think it's a body that has done reasonably well, but not as well as we would like. It's very different from other international courts in that it
00:20:27
Speaker
deals with individual crimes, right? International Court of Justice deals with disputes between states. This one deals with allegations against Genocidias and so on. And it's quite a different ilk. And you know, end up putting people in jail. Now they haven't been successful as I would have liked. And in completing a great number of prosecutions have been some acquittals. I'm the problem with acquittals. And the thing about criminal law is you got to prove it. Yeah, and
00:20:57
Speaker
nothing like a failure of proof. Although if you've won a trial for five or six years, and at the end of the day, the judge says you lose, it's not very satisfactory. Right. I look, I think it's a really important piece of the architecture of international law, which we needed. And we have, it's got 120 odd states, every party to it, some major ones like the United States, I haven't
00:21:26
Speaker
and the United States for a while during the Bush administration, and again in the last administration, tried to put the boot in, tried to kill it, because they're not enthusiastic about the thought it would apply to them. Some of this wonderful irony is here, because in his opening speech at Nuremberg, Justice Jackson went out his way to say, look, we put a poison chalice to the lips of the Germans here. It's the same poison chalice we may have to put to our own lips. Some of the rules were applying to them.
00:21:54
Speaker
are rules that apply to everybody. And I think it was about that point a lot of people in Washington had second thoughts about maybe we don't want to apply this. We don't want to be bought before them and so on. And you see that laying out in the last couple of years over the efforts to prosecute war crimes in Afghanistan.
00:22:16
Speaker
Most of the Taliban and the Afghan government does, but it's pretty clear that the United States engaged in some war crimes. Pretty clear that Australians stood and maybe Italians as the New Zealanders, Canadians, who knows? There were others and that's close to home. You can see some of the problems there.
00:22:35
Speaker
Absolutely. I want to also sort of talk about, you know, what are, what are the different options when awful things happen in
Truth Commissions vs. Legal Trials
00:22:44
Speaker
the world? Right. So one option is criminal court proceedings in the international criminal court. One option might be, you know, a domestic prosecution. One option that I'm utterly fascinated by are the countries, South Africa being one, but other countries have done the same that try
00:23:03
Speaker
these truth and reconciliation commissions. We won't prosecute you in exchange for you coming in and telling us
00:23:11
Speaker
the awful things that you did and maybe giving families closure or whatever it is. And I'm always curious about, you know, it's easy to be very skeptical, I think, about those kinds of efforts, particularly because they don't lead to punishment and they don't lead to criminal prosecutions. So I'm curious to hear you sort of talk about how you think those things work in conjunction with each other, whether you think those kinds of commissions are good for some things and not for others.
00:23:40
Speaker
you know, just your general thoughts. Yeah, that's a really hard set of questions. And, you know, my impression of South Africa is, look, for some people, it's really important to tell your story. And that's a big problem with suing in the United States courts. You know, Beth Stevens, my colleague was involved in a lot of these cases under the Alien Tort Claims Act. At the end of the day, the defendant doesn't have any money. You can't execute on the judgment. You got a $10 million judgment.
00:24:10
Speaker
And that's great. But having a day in court is really important to a lot of people. And I know one of Beth's cases was a plaintiff was a New Zealand woman whose son was murdered by the Indonesians in East Timor named Helen Todd. And I think she was, my impression was she was really pleased to have a day in court. It was good. And I think that's true.
00:24:38
Speaker
of a lot of the South Africans. But the other side of the coin is South Africa never did fund an effort to do reparation for the people who had suffered. And you don't get very far with that. And look, the International Criminal Court's got the same problem. Victims have a prominent role in the whole operation. But I always say to people in the negotiation, look, there's not a great pot of money in the sky.
00:25:07
Speaker
that's going to fall into the hands of the court. Because by the time somebody gets convicted, if they stole the country blind and put their money in a bank account in Switzerland or something, thieves or the government has got down on their money, it's not available to go to victims. And so far, none of the guys who've been convicted by the court have had money that you can take and give to the victims. So in theory,
00:25:35
Speaker
You know, there's a lot of money out there, but it doesn't doesn't exist to recompense what one can argue about whether money is important or not. And I do think the notion of telling a story and having someone listen to it.
00:25:50
Speaker
and Archbishop listening to your story. And I think that's pretty good in South Africa, but I don't know. I never talked to any of the victims about how they felt about it. Yeah. Yeah. I mean, it was definitely, it was definitely controversial.
Cultural Dialogues on Race and Apartheid
00:26:03
Speaker
And I think, you know, one of the things that I find really refreshing when I've been to South Africa on the trip part of the course is the willingness of people to talk about
00:26:17
Speaker
race and to talk about apartheid and to talk about, you know, their societal obligation to move past it to be better and to do better and I just think I think that's incredibly powerful. Yeah. And of course that's something that's happened in New Zealand without a cataclysm.
00:26:37
Speaker
people have got to the point where, look, we've got to talk about this. I've mentioned before, rugby football was funny, the catalyst for that, and getting those discussions going. But yeah, that's a long way to go. Right, of course, so many countries do. Yeah, but the whole effects of colonialism and so on, and the multi-generational effects of all of those issues are ones that
00:27:01
Speaker
all sorts of societies trying to come to grips with. Absolutely. For example, with the First Nations issues and Australia is
00:27:09
Speaker
Well, further behind and trying to do something about its Aboriginal population and so on. Really important to talk about it. Absolutely. Absolutely. And to think about what does it look like for a government to compensate today's people for yesterday's wrongs or to understand the ways in which yesterday's wrongs continue to impact people in a country.
00:27:34
Speaker
No, I think the multi-generational stuff is just so important. But it doesn't tell you exactly how you've got to go about dealing with it. Right. That's right. That's absolutely the difficulty. Absolutely the case that dealing with Native American issues, you've got to think back to Spanish in some cases, but certainly to Western European arrivals and so on. Yeah. You've got to know the history to be responsive to it, right? Yeah, exactly.
00:28:00
Speaker
So I want to ask you a few more specific questions and then a couple of broad questions.
Addressing Nuclear Test Impacts
00:28:08
Speaker
So I certainly couldn't let this podcast end without talking about your representation of the Marshall Highlands and the work that you did there. So this was, what, in 2014, 2015? 2016, really, mostly in 2014. Well, 2014 to 2016, I think, is the best way to put about it. Yeah.
00:28:29
Speaker
Well, it's a part of a much bigger story, of course. And as you know, the United States tested 69 nuclear weapons in the Marshall Islands and left a big mess behind. And that's always been a really important issue in Marshall Islands of politics. In the mid 1970s, I used to go up to New York to the Trusteeship Council on behalf of
00:28:58
Speaker
non-governmental group, the International League for Human Rights, and try to persuade the Trusteeship Council to get the United States out of the Marshall Islands and to clean up their mess. And I can't say it was an especially enthusiastic audience that I had at that time. But while I was there, I met a young guy, Anton de Broome, who was in his 20s. And they're on the same mission, actually.
00:29:27
Speaker
And Anton ultimately became the foreign minister. He concluded after talking to a lot of lawyers that it was a good idea to try to enforce Article 6 of the Non-Proliferation Treaty. Article 6 of the Non-Proliferation Treaty of 1968 has a promise in it from the nuclear powers that they will negotiate an end to the nuclear arms race and
00:29:53
Speaker
negotiate and end nuclear arms. I mean, it's pretty clear. That's what the treaty says. Anton had it in his head that it would be a good idea to try and enforce that. Now, there are a couple of ways you could go about doing that. We'd been involved in an earlier case which got what was called an advisory opinion from the court that on that particular issue, the International Court of Justice,
00:30:18
Speaker
was quite strong, but anyway, the feeling was we should go and do this. So he had put together a team of people from around the world, from the Netherlands, from the United States, from Geneva, from the UK, from Italy, and I was privileged to be part of that team. I wasn't a senior person on the team by any means, but it was really important to me. As an issue, frankly, that I'd worked on the whole of my professional career.
00:30:49
Speaker
So I spent a lot of time in the 1960s, first as a student politician and then as a junior member of the faculty in New Zealand trying to persuade the New Zealand government to take the French to the court over the testing in the Pacific. So, you know, I followed these issues all along. So we had, and the issue was essentially, what if you get declaratory and injunctive relief to get the nuclear powers to negotiate?
00:31:18
Speaker
The big pong we'll get anything in the International Court of Justice is jurisdiction. And so we effectively wrote to all of the nine nuclear powers and said, would you be kind enough to join us? The only one I actually responded was the Chinese who said, no. What do you want to join you? They're very polite about it. But we also ended up with jurisdictional theories against the United Kingdom.
00:31:48
Speaker
India and Pakistan, and we proceeded with those three cases.
Jurisdiction in International Law
00:31:53
Speaker
The United States, we couldn't find a theory to get them in there, and the Russians and the Chinese, there wasn't any way to get them there. But we had what we thought were arguable theories to go in. So the way the court works by and large is the first argument you end up with is jurisdiction, pretty basic stuff. Is there a jurisdictional theory
00:32:17
Speaker
And ultimately, to cut a long story short, we lost in a split decision. The court was split eight to eight on the question of whether we had a dispute with these guys. A really arcane argument, sort of related to the kind of things you find in American Con Law about justiciability or political question and so on. And when the court is split eight to eight,
00:32:45
Speaker
It means that the presiding judge gets a second vote to make it nine to eight. And the president was a French judge who wasn't terribly sympathetic to our argument. So we got tossed out on that argument. I must confess that it's the argument that I thought was the most difficult that we had to face. I thought we had a really good argument that the nuclear powers simply refused to comply with their obligation to negotiate. I mean, they won't sit down and do it.
00:33:15
Speaker
They won't agree on an agenda for negotiation, and they won't agree on the details of where to go. Meanwhile, they say to everybody else, well, don't you dare proliferate, because you promised not to get nukes. So we did promise to get rum, but we can't just get. It's only since 1968. This may take another half century or so. So look, it's a disappointing experience in some ways.
00:33:43
Speaker
It's an interesting court. It's not like a normal court because you stand in front of the judges and you read your argument. You can't deviate from your text. They don't ask you any questions during the argument. They may ask a couple of questions at the end, which you reply to either in writing or the next session. So there's no interchange with them. I tried a bit of eye contact from time to time.
00:34:06
Speaker
I don't think that always went well. One guy was asleep. He wasn't very well, to be honest. And some of the others obviously weren't very sympathetic to the point that I was making. But it was a fascinating experience. I mean, arguing about the future of the world, frankly, before the highest court in the world is an exciting experience. Yeah, it's hard to beat that. Close case, sitting in the middle. Could be worse.
00:34:31
Speaker
And that was the work for which you and the team got the nomination for Nobel Peace Prize. Oh, yes, yes. We didn't get the prize, obviously. No, I mean, it was a great honor. You got nominated. The reaction was, you know, just kind of be amused. But do you want to think about it? It was a great honor, frankly. Yeah.
00:34:50
Speaker
Yeah, that's pretty terrific. So as somebody who has been, I mean, one of the things that I think is really interesting is, you know, when people say folks are radical when they're younger and then as they get older, they move into, you know, conservatism, which I don't see from your career at all. So, you know, you were sort of talking about, you know, posing the Vietnam War in the sixties and your whole career has really been about fighting these incredibly important
00:35:20
Speaker
causes, whether it's nuclear disarmament or holding people responsible for atrocities. And given how long you've been doing this work, what's your sense of
Progress in International Law
00:35:33
Speaker
where we are now, right? I mean, are we in a better place than we were 50 years ago? You know, is international law stronger? Is it enforced more? Do people treat it with more respect? Or do we still have a long way to go? That's a really hard one. And often people ask me how I managed to keep my enthusiasm. It's difficult sometimes. I take nuclear issues. I worked on them since the early 60s. Frankly, when I first started to think about international war,
00:36:03
Speaker
and nuclear issue, there was hardly any environmental law. Nobody taught international environmental law and nobody much taught domestic environmental. Really rich in the early 70s and Stockholm conference on the environment that that that generated so much interested in that. And I think the same is so what I'm saying is there's an enormous amount of normative stuff being developed. We're not always that good about enforcing them. We just got to think about
00:36:32
Speaker
climate change and what's been happening in relation to the Paris agreements and so on. But I think if you think a bit deeper and drive around, there are a lot more wind turbines than there used to be. You know, stuff coming from renewable resources, much more so.
00:36:52
Speaker
than when I first became interested in these issues. And again, in the human rights area and the international criminal law area, there's a lot more normative material out there. The tools are out there. The use of them has been disappointing.
00:37:08
Speaker
On the other hand, you do see areas where some of this stuff is really put into force. I was talking to some of the students earlier about money laundering, for example. There's some international agreements on money laundering and so on. But actually, the Financial Action Task Force, as it's called, is a quasi-governmental organization that really enforces some of that stuff because they lean on banks.
00:37:37
Speaker
And they say, if you don't knock this off and get rid of that client, then you're not going to move your money through the international banking system. And I think we've had some effects like that. And you can translate that into other areas of the law and so on.
00:37:54
Speaker
And I think going back to your question about the United States, the United States has been very slow to ratify human rights treaties, ratify the covenant on civil and political rights, but not the one in economic, social and cultural.
00:38:08
Speaker
party to the racial convention, but not the one on the elimination, discrimination against women and so forth. But they have ratified all of the important international criminal treaties, ones on hijacking airplanes, ones on blowing up airplanes, convention against torture, financing of terrorism, all of that stuff. New Zealand's always done sort of both of them, but the United States is first online to ratify criminal law ones. And one can only say, look, it's part of a bigger picture.
00:38:39
Speaker
There's a lot of other stuff out there, too, and you should come aboard and and play with it. And so I was really hard to do. And yeah, I'll get things in time. Right. Well, it takes a long time. And yeah, I've had a lifetime and
00:38:55
Speaker
of one a few. I look, South Africa got rid of apartheid. Yeah. East Timor got rid of the Indonesians. And we got an international criminal court. Yeah. The issues I've worked on turned out
Legacy and Long-Term Justice
00:39:09
Speaker
all right. I think you really have to look long haul.
00:39:11
Speaker
justice in general. We've got a long way to go, I think. Right. And I think what you said, you know, that you have to create the tools and then you have to figure out how to make people use those tools. And it takes a long time to shift culture. All of those things don't happen overnight at all. I mentioned the International League for Human Rights, and I did a lot of work for them in the 1970s and 80s, including on the decolonization stuff.
00:39:40
Speaker
But one of their big things was if there was a procedure out there, we would try and make it work. Go complain somewhere.
00:39:51
Speaker
You know, we figured out ways in which you could present a petition to, I mentioned the trusteeship council, but to the decolonization committee, that some of the communities, the whole of the General Assembly would hear you. So you put in a request to appear there and you turn up and somebody objects to the jurisdiction, to your being there and so on. And you either answer it or ignore it. I'm hoping that the chair gets the point and says we'll continue. And generally we got away with it. And when the,
00:40:20
Speaker
Human Rights treaties started coming into force in the late 1970s. They all have procedures either for complaints or for government reports. And the governments have put in reports saying, look, this is the greatest country in the world and these are the wonderful things.
00:40:37
Speaker
that we've done. Well, you write another report that says, well, hang on a minute. They're also doing this, this, this, and this. And that's become an important cottage industry. I think it's significant stuff to do. A lot of United States institutions do it in respect to the United States, you know. Yeah. Get on their case about torture, for example, at Guantanamo and Abu Ghraib and so on. And those procedures are out there and they have some impact.
00:41:06
Speaker
And decent states ultimately respond to some of it, even the bad guys from time to time.
00:41:14
Speaker
Yeah, and I also think that kind of work, reporting on things that are happening is a way to get that sort of groundswell of support for change, right? And we live in a world now where you can disseminate that information so widely and so quickly and frankly, so cheaply, which I think has been really critical as well. So I wanna wind down by asking you the legacy questions. So as you said, you've been teaching at Rutgers
00:41:42
Speaker
Since 1972 so you know Rutgers law has been has been your home for a very long time your professional home. For a very long time you have taught thousands of students you've done amazing work all over the world.
00:41:59
Speaker
So, you know, when you think back to these, you know, almost 50 years that you spent at Rutgers Law, what's the legacy that you want to have left? How do you want us to still be talking about Roger Clark, even when you're not in the building every day anymore? Look, I'm primarily a teacher and I like to think
00:42:18
Speaker
that I've improved people's critical skills. Hey, they got some information for me too about criminal law or thoughts or anything. But it's the critical skills that are much more important. And I like to think that I've got across a bit of an idea about human dignity, human decency.
00:42:38
Speaker
and you got to treat people reasonably well. And that it's not just about us. And look, I've had some terrific graduate, you know, so many graduates have become judges and diplomats, frankly, some other people who have done very well in the State Department and the military and Homeland Security and so on. And I like to think I made a contribution to their thinking
00:43:03
Speaker
And I think, actually, what has been wonderful about working for Rutgers is that nobody has ever got on my case and said, what on earth are you wasting your time doing that for? And I think Rutgers has been a wonderful home for that reason. Obviously, it's been very good to me.
00:43:23
Speaker
Well, thank you so much, Roger. This was just a huge, huge pleasure to speak with you and to hear more about your career and, you know, having received some of the emails and social media comments about you winding down your teaching career. I think you can be confident that you have had an enormous impact.
00:43:43
Speaker
on lots of people out in the world. And that's a real gift. It's a real gift to them. And I think it's a real gift to you. So it has been an honor and a pleasure for all of these years. And we know where you live, so you can only disappear so far from Rutgers. Thank you so much. It's been a wonderful career. I've been blessed. Thank you so much, Roger.
00:44:11
Speaker
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