Stephen M. Schwebel
   HOME

TheInfoList



OR:

Stephen Myron Schwebel (born March 10, 1929), is an American jurist and international judge, counsel and arbitrator. He previously served as judge of the World Bank Administrative Tribunal (2010–2017),''World Bank Administrative Tribunal: Current Composition''
United Nations. Accessed 22 January 2018.
as a member of the U.S. National Group at the
Permanent Court of Arbitration The Permanent Court of Arbitration (PCA) is a non-UN intergovernmental organization located in The Hague, Netherlands. Unlike a judicial court in the traditional sense, the PCA provides services of arbitral tribunal to resolve disputes that aris ...
,''Members of the Permanent Court of Arbitration''
United Nations. Accessed 1 January 2016.
Election of President and Vice Presidents of the Tribunal
'' World Bank Administrative Tribunal '' The World Bank Group, 10 Oct. 2017. Accessed 22 January 2018.
Stephen M. Schwebel
'' www.iaiparis.com'', iai. Accessed 22 January 2018.
as president of the
International Monetary Fund The International Monetary Fund (IMF) is a major financial agency of the United Nations, and an international financial institution, headquartered in Washington, D.C., consisting of 190 countries. Its stated mission is "working to foster glo ...
Administrative Tribunal (1993–2010), as president of the
International Court of Justice The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
(1997–2000), as vice president of the International Court of Justice (1994–1997), and as Judge of the International Court of Justice (1981–2000).''Judge Stephen M. Schwebel: Former Judge and President of the ICJ'', Panel of Recognized International Market Experts in Finance. Accessed 26 July 2017

/ref> Prior to his tenure on the ICJ, Schwebel served as deputy legal adviser to the
U.S. Department of State The United States Department of State (DOS), or State Department, is an executive department of the U.S. federal government responsible for the country's foreign policy and relations. Equivalent to the ministry of foreign affairs of other ...
(1974–1981) and as assistant legal adviser to the U.S. Department of State (1961–1967). He also served as a professor of law at Harvard Law School (1959–1961) and
Johns Hopkins University Johns Hopkins University (Johns Hopkins, Hopkins, or JHU) is a private research university in Baltimore, Maryland. Founded in 1876, Johns Hopkins is the oldest research university in the United States and in the western hemisphere. It consi ...
(1967–1981). Schwebel is noted for his expansive opinions in momentous cases such as '' Legality of the Threat or Use of Nuclear Weapons'',Falk, Richard A. "Nuclear Weapons, International Law and the World Court: A Historic Encounter." ''The American Journal of International Law,'' Vol. 91, No. 1 (Jan., 1997), p. 72. '' Military and Paramilitary Activities in and Against Nicaragua''Highet, Keith "Evidence, the Court and the Nicaragua Case." ''The American Journal of International Law,'' Vol. 81, No. 1 (Jan., 1987), p. 5. and '' Oil Platforms (Islamic Republic of Iran v. United States of America)''."Oil Platforms (Islamic Republic of Iran v. United States of America) Preliminary Objection." ''International Comparative Law Quarterly,'' Vol. 46, No. 3 (Jul., 1997), p. 698.


Early life and education

Schwebel was born on March 10, 1929, in
New York City New York, often called New York City or NYC, is the most populous city in the United States. With a 2020 population of 8,804,190 distributed over , New York City is also the most densely populated major city in the Un ...
, and while attending high school in New York City developed a strong interest in the
United Nations Conference on International Organization The United Nations Conference on International Organization (UNCIO), commonly known as the San Francisco Conference, was a convention of delegates from 50 Allied nations that took place from 25 April 1945 to 26 June 1945 in San Francisco, Cali ...
being held in San Francisco. The U.N. Conference and the U.N. student organization that he was active in (and that was later affiliated with the
United Nations Association of the United States of America The United Nations Association of the United States of America (UNA-USA) is a nonprofit grassroots organization dedicated to promoting political and public support for the United Nations among Americans. A program of the United Nations Foundation ...
), marked the start of a long focus on international relations and law. After entering
Harvard University Harvard University is a private Ivy League research university in Cambridge, Massachusetts. Founded in 1636 as Harvard College and named for its first benefactor, the Puritan clergyman John Harvard, it is the oldest institution of high ...
, he became active in the
U.N. The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and security, develop friendly relations among nations, achieve international cooperation, and be a centre for harmonizi ...
student movement and participated in founding The United Nations Council of Harvard. In 1950 he received a B.A. ''magna cum laude'' with highest honors in government from Harvard and was awarded the
Frank Knox Memorial Fellowship The Frank Knox Memorial Fellowship program is a scholarship program which funds students from Australia, Canada, New Zealand and the United Kingdom to undertake graduate study at Harvard University. The program is named after the businessman, sold ...
. The Knox Fellowship enabled Schwebel to perform research and study in a Commonwealth country of his choice. Schwebel chose to study international law at
Cambridge University The University of Cambridge is a Public university, public collegiate university, collegiate research university in Cambridge, England. Founded in 1209 and granted a royal charter by Henry III of England, Henry III in 1231, Cambridge is the world' ...
in England under Sir
Hersch Lauterpacht Sir Hersch Lauterpacht (16 August 1897 – 8 May 1960) was a British international lawyer, human rights activist, and judge at the International Court of Justice. Biography Hersh Lauterpacht was born on 16 August 1897 to a Jewish family in t ...
who advised him, upon completion of his year at Cambridge, to attend law school. He subsequently entered
Yale Law School Yale Law School (Yale Law or YLS) is the law school of Yale University, a private research university in New Haven, Connecticut. It was established in 1824 and has been ranked as the best law school in the United States by '' U.S. News & Worl ...
, where he received an LL.B. (1954). While studying at Yale, Schwebel was told by the eminent professor of law
Myres McDougal Myres Smith McDougal (November 23, 1906 – May 7, 1998) was a scholar of international law and Sterling Professor of International Law at the Yale Law School, where he taught for fifty years. He also taught at New York Law School. He was an infl ...
that in order to become an influential international lawyer he first needed to, "earn his spurs," at the best law firm that would take him.Kreisler, Harry
Reflections on a Career in International Law: Conversation with Judge Stephen M. Schwebel of the ICJ.
''January 22, 1990, Institute of International Studies, University of California - Berkeley. Accessed 3 March 2015.
From 1954 to 1959, Schwebel practiced law as an associate at the law firm of
White & Case White & Case LLP is a global law firm based in New York City. Founded in 1901, the firm has 46 offices in 31 countries worldwide and has been ranked among the top ten firms worldwide by revenue. History The firm was launched on May 1, 1901 wh ...
in New York City. While at White & Case, he had the opportunity to participate in one of the largest international arbitration cases of the 20th century - ''Saudi Arabia v. Arabian American Oil Company. '' Schwebel was assigned the, "digging," on the case and spent countless hours going through files; however, the experience engendered a lifelong interest in international arbitration. In 1959, he accepted a position as assistant professor of law at Harvard Law School, where he taught until 1961. In 1961 Schwebel started his career with the U.S. State Department as assistant legal adviser on United Nations affairs. In 1967 he returned to academia as the Burling Professor of International Law at
Johns Hopkins School of Advanced International Studies The Paul H. Nitze School of Advanced International Studies (SAIS) is a graduate school of Johns Hopkins University based in Washington, D.C., United States, with campuses in Bologna, Italy, and Nanjing, China. It is consistently ranked one of th ...
.Gale Reference Team 2002 "Biography - Schwebel, Stephen M. (1929 -)." Contemporary Authors, Thomas Gale.


Deputy legal adviser to U.S. Department of State

In 1974, Schwebel became deputy legal adviser to the
U.S. Department of State The United States Department of State (DOS), or State Department, is an executive department of the U.S. federal government responsible for the country's foreign policy and relations. Equivalent to the ministry of foreign affairs of other ...
, where he provided legal advice supporting the formulation and implementation of U.S. foreign policy. During his service as deputy legal adviser, he participated as associate representative, representative counsel and deputy agent of the United States in various cases before the
International Court of Justice The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
including: '' Interpretation of the Agreement of 25 March 1951 Between the
World Health Organization The World Health Organization (WHO) is a specialized agency of the United Nations responsible for international public health. The WHO Constitution states its main objective as "the attainment by all peoples of the highest possible level of ...
and Egypt (1980)'', '' United States Diplomatic and Consular Staff in Tehran (1979–1980) '' and, while serving as assistant legal adviser for United Nations affairs, ''Certain Expenses of the United Nations (1962)''.

' Press Communiqué, International Court of Justice, The Hague 97/2, Retrieved 26 July 2017.
Schwebel also served as counselor on international law, special assistant to the assistant secretary of state for international organizational affairs at the Department of State, and U.S. representative to various committees of the United Nations, including the
UNCTAD The United Nations Conference on Trade and Development (UNCTAD) is an intergovernmental organization within the United Nations Secretariat that promotes the interests of developing countries in world trade. It was established in 1964 by the ...
Working Group on a Charter of Economic Rights and Duties of States (1973–1974); the Special Committee on the Question of Defining Aggression (1971); and the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States (1964). He was also a member of the United Nations
International Law Commission The International Law Commission (ILC) is a body of experts responsible for helping develop and codify international law. It is composed of 34 individuals recognized for their expertise and qualifications in international law, who are elected by t ...
from 1977 to 1980.


Cambodian accountability

In September 1978, Schwebel, acting as deputy legal adviser to the U.S. Department of State, sought accountability for the mass executions committed by the Khmer Rouge. Schwebel wrote the U.K. Foreign Office about the possibility of instituting proceedings against
Cambodia Cambodia (; also Kampuchea ; km, កម្ពុជា, UNGEGN: ), officially the Kingdom of Cambodia, is a country located in the southern portion of the Indochinese Peninsula in Southeast Asia, spanning an area of , bordered by Thailan ...
before the International Court of Justice for
genocide Genocide is the intentional destruction of a people—usually defined as an ethnic, national, racial, or religious group—in whole or in part. Raphael Lemkin coined the term in 1944, combining the Greek word (, "race, people") with the Lat ...
. Although Schwebel suggested a basis for the proceedings should be the
Genocide Convention The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, is an international treaty that criminalizes genocide and obligates state parties to pursue the enforcement of its prohibition. It was ...
, he acknowledged that proceedings of a case against Cambodia based on the convention were not well founded.Smith, Karen 2010 "Genocide & the Europeans." Cambridge University Press, p. 93. Schwebel stated that the atrocities had apparently not been aimed at destroying, in whole or in part, a "national, ethnical, racial or religious group," as defined by the
Genocide Convention The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, is an international treaty that criminalizes genocide and obligates state parties to pursue the enforcement of its prohibition. It was ...
, but rather those whom the Cambodian authorities deemed to be politically unsympathetic. The UK concurred with Schwebel's concerns by stating that it felt arguments against instituting proceedings were too strong and that the criterion for the atrocities appeared to be the political attitude (or assumed attitude) by the Cambodian government.Smith, Karen 2010 "Genocide & the Europeans." Cambridge University Press, p. 94.


Filártiga v. Peña-Irala

Schwebel was a key member of the U.S. State Department team that initiated and sought to influence, through an ''amicus'' brief, the
Second Circuit Court of Appeals The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
in its hearing of the landmark case '' Filártiga v. Peña-Irala''. In August 1979, two months before oral arguments at the Second Circuit, Schwebel, as deputy legal adviser, contacted the
Civil Rights Division The U.S. Department of Justice Civil Rights Division is the institution within the federal government responsible for enforcing federal statutes prohibiting discrimination on the basis of race, sex, disability, religion, and national origin. T ...
in the Justice Department and expressed the U.S. State Department's desire for the Justice Department to take account of developments in international law, which firmly established that all natural persons are entitled to fundamental human rights. Schwebel wrote:
The position of the (U.S.) State Department on the question of international law immediately relevant to the District court judgment in ''Filártiga'' is that acts of torture violate an individual's rights under international law not to be tortured. That an individual has this right is a conclusion founded on provisions of the U.N. Charter and authoritative interpretations of those provisions, on other treaties, on international custom and practice and on the general principles of law- all as recognized by the U.S. and other nations. It derives also from international and national judicial decisions.
Despite taking over eight monthsAceves, William J. "The Anatomy of Torture: A Documentary History of Filartiga V. Pena Irala." Martinus Nijhoff Publishers, p. 44. for the U.S. State Department, Solicitor General and Department of Justice to formulate a combined final position in '' Filártiga v. Peña-Irala'', the ruling by the
Second Circuit Court of Appeals The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
, that torture is prohibited by international law, was heavily influenced by the ''amicus'' briefs initiated by Schwebel and his team at the U.S. State Department.Aceves, William J. "The Anatomy of Torture: A Documentary History of Filartiga V. Pena Irala." Martinus Nijhoff Publishers, p. 52.


International Court of Justice

He was nominated for election to the
International Court of Justice The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
by the bipartisan U.S. National Group at the
Permanent Court of Arbitration The Permanent Court of Arbitration (PCA) is a non-UN intergovernmental organization located in The Hague, Netherlands. Unlike a judicial court in the traditional sense, the PCA provides services of arbitral tribunal to resolve disputes that aris ...
during the presidency of
Jimmy Carter James Earl Carter Jr. (born October 1, 1924) is an American politician who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party, he previously served as the 76th governor of Georgia from 1 ...
. In January 1981, Schwebel was elected by the
U.N. Security Council The United Nations Security Council (UNSC) is one of the six principal organs of the United Nations (UN) and is charged with ensuring international peace and security, recommending the admission of new UN members to the General Assembly, and ...
and U.N. General Assembly, along with Fikri El-Khani of Syria, to fill vacancies created by the deaths of Richard R. Baxter (U.S.A.) and Salah El Dne Trazi (Syria).(January 1981
''Security Council Concludes International Court Elections''
United Nations - News & Media. Accessed 3 March 2015.
Schwebel was re-elected on February 6, 1988 and re-elected again February 6, 1997. He was elected to vice president of the court from 1994 to 1997 and served as president of the court from 1997 to 2000. During his tenure on the court, Schwebel adjudicated 38 cases. These cases included
advisory opinion An advisory opinion is an opinion issued by a court or a commission like an election commission that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some cou ...
s such as '' Legality of the Threat or Use of Nuclear Weapons '' and ''Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Oil Platforms (Iran v. United States)'' and'' Aerial Incident of 10 August 1999 (Pakistan v. India)''. His opinions in these cases have been characterized by scholars as expansive, impassioned,Highet, Keith "Evidence, the Court and the Nicaragua Case." ''The American Journal of International Law,'' Vol. 81, No. 1 (Jan., 1987), p. 4. exhaustive,Singh, Nagendra 1989 "The Role & Record of the International Court of Justice." Martinus Nijhoff, p. 264. closely reasoned and, by those who share his views, brilliant. His ruling in the ''Legality of Threat or Use of Nuclear Weapons Case'' is considered by some scholars to be consistent with that of a moderate conservative.Boyle, Francis A. 2002 "The Criminality of Nuclear Deterrence." Clarity Press, p. 195. Schwebel frequently voted against the majority of his colleagues;Ligny, Roland De "U.S. World Court Judge Has a Record of Dissent." ''Associated Press'', June 27, 1986. however, he also voted against his own country (U.S.) more than any other judge in the history of the Court. He believes that a nationalistic view, as opposed to a judicial view, undermines the international systemBernstein, Richard "American at the Hague Sits in Judgment of U.S." ''The New York Times'', 20 September 1985. and that the judicial decision making process must take in to consideration moral considerations relating to equality - beyond just a strict legalist interpretation.Heng Cheng, Tai 2012 "When International Law Works." Oxford Press, p. 146. He resigned from the Court in January 2000.
Judge Schwebel Elected President of ICJ
' Press Communiqué, International Court of Justice, The Hague 97/2, Retrieved 3 March 2015.


Case: ''Legality of the Threat or Use of Nuclear Weapons''

In January 1995, the U.N. asked the International Court of Justice to render an advisory opinion on whether or not the threat or use of nuclear weapons in any circumstance is permitted under
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. Schwebel was the only judge who answered the question in an affirmative manner.Falk, Richard A. "Nuclear Weapons, International Law and the World court: A Historic Encounter" ''The American Journal of International Law '', Vol. 91, No. 1 (Jan., 1997), p. 72. Schwebel holds that the legality of the threat or use of nuclear weapons is established through state practice over many years by the world's major powers, the
U.N. Security Council The United Nations Security Council (UNSC) is one of the six principal organs of the United Nations (UN) and is charged with ensuring international peace and security, recommending the admission of new UN members to the General Assembly, and ...
, the U.N. General Assembly, the Nuclear Non Proliferation Treaty and other nuclear treaties."Legality of the Threat or Use of Nuclear Weapons - Dissenting Opinion of Judge Schwebel", ''United Nations Cases'', 8 July 1996, p. 312.Falk, Richard A. "Nuclear Weapons, International Law and the World Court: A Historic Encounter" ''The American Journal of International Law,'' Vol. 91, No. 1 (Jan., 1997), p. 71. He specifically notes that in The Nuclear Non Proliferation Treaty, the possession of nuclear weapons by the five major nuclear powers is lawful until
disarmament Disarmament is the act of reducing, limiting, or abolishing weapons. Disarmament generally refers to a country's military or specific type of weaponry. Disarmament is often taken to mean total elimination of weapons of mass destruction, such as ...
and that inherent in possession of nuclear weapons is deterrence, and deterrence, by its nature, implies threat of use.
The policy of
deterrence Deterrence may refer to: * Deterrence theory, a theory of war, especially regarding nuclear weapons * Deterrence (penology), a theory of justice * Deterrence (psychology) Deterrence in relation to criminal offending is the idea or theory that t ...
differs from that of the threat to use nuclear weapons by its generality but if a threat of possible use did not inhere in deterrence, deterrence would not deter. If possession by the five nuclear Powers is lawful until achievement of
nuclear disarmament Nuclear may refer to: Physics Relating to the nucleus of the atom: *Nuclear engineering *Nuclear physics *Nuclear power *Nuclear reactor *Nuclear weapon *Nuclear medicine *Radiation therapy *Nuclear warfare Mathematics * Nuclear space * Nuclea ...
; if possession is the better part of deterrence; if deterrence is the better part of threat, then it follows that the practice of States -- including their treaty practice-- does not absolutely debar the threat or use of nuclear weapons."Legality of the Threat or Use of Nuclear Weapons - Dissenting Opinion of Judge Schwebel", ''United Nations Cases'', 8 July 1996, p. 314.
Schwebel also holds that the principles of
international humanitarian law International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war ('' jus in bello''). It is a branch of international law that seeks to limit the effects of armed conflict by pro ...
such as proportionality in the degree of force applied, discrimination in the application of force between combatants and civilians and avoidance of unnecessary suffering of combatants, all of which antedate the invention of nuclear weapons, must also apply to nuclear weapons. He acknowledges, however, that it is extremely difficult to apply the principles of international humanitarian law with the practice of employing such destructive weapons;"Legality of the Threat or Use of Nuclear Weapons - Dissenting Opinion of Judge Schwebel", ''United Nations Cases'', 8 July 1996, p. 321. although not doing so, in his view, vitiates international humanitarian law.McCormack, Timothy L.H. "A Non Liquet on Nuclear Weapons - The ICJ Avoids the Application of General Principles of International Humanitarian Law" '' International Review of the Red Cross '', No. 316, p. 1. Schwebel, draws a distinction between the use of nuclear weapons for countervalue, which he believes cannot be reconciled with international humanitarian law, and the tactical use of nuclear weapons against military targets which he believes, in certain circumstances, can."Legality of the Threat or Use of Nuclear Weapons - Dissenting Opinion of Judge Schwebel", ''United Nations Cases'', 8 July 1996, p. 322.
At one extreme is the use of strategic nuclear weapons in quantities against enemy cities and industries. This so-called " countervalue" (as contrasted with "
counterforce In nuclear strategy, a counterforce target is one that has a military value, such as a launch silo for intercontinental ballistic missiles, an airbase at which nuclear-armed bombers are stationed, a homeport for ballistic missile submarines, or ...
" uses directed only against enemy nuclear forces and installations) could cause an enormous number of deaths and injuries, running in some cases into the millions; and, in addition to those immediately affected by the heat and blast of those weapons, vast numbers could be affected, many fatally, by spreading radiation. Large-scale "exchanges" of such nuclear weaponry could destroy not only cities but countries, and render continents, perhaps the whole of the Earth, uninhabitable, if not at once then through longer-range effects of
nuclear fallout Nuclear fallout is the residual radioactive material propelled into the upper atmosphere following a nuclear blast, so called because it "falls out" of the sky after the explosion and the shock wave has passed. It commonly refers to the radioac ...
, it cannot be accepted that the use of nuclear weapons on a scale which would -or could -result in the deaths of many millions in indiscriminate inferno and by far reaching fallout, have profoundly pernicious effects in space and time, and render uninhabitable much or all of the Earth, could be lawful."Legality of the Threat or Use of Nuclear Weapons - Dissenting Opinion of Judge Schwebel", ''United Nations Cases'', 8 July 1996, p. 320.
Schwebel's view that the use of tactical nuclear weapons, in certain circumstances, complies with international humanitarian law contrasts with members of the Court's majority, and other scholars,Moxley Jr., Charles J. et al. "Nuclear Weapons - Compliance With International Humanitarian Law and the Nuclear Non Proliferation Treaty", ''Fordham International Law Journal'', Vol. 34:595 p. 642. who believe that a nuclear weapon (of any yield) impacts civilians either directly or by an escalation in hostility that might follow.Moxley Jr., Charles J. et al. "Nuclear Weapons - Compliance With International Humanitarian Law and the Nuclear Non Proliferation Treaty", ''Fordham International Law Journal'', Vol. 34:595 p. 640. Schwebel asserts that, in certain circumstances, such as a nuclear depth charge targeted toward an enemy submarine, the antinomy between international humanitarian law and the use of nuclear weapons can be reconciled. He states that a nuclear depth charge targeted toward an enemy submarine does not give rise to immediate civilian casualties, meets the test of proportionality and leaves significantly less radiation in the ocean than the targeted submarine's missiles would leave on land. Schwebel characterizes the immense antinomy between the principles of international humanitarian law and nuclear weapons as a titanic tension between state practice and legal principle never before seen by the Court.Sands, Philippe, et al. 1999 "International Law, the ICJ & Nuclear Weapons", Cambridge University p. 210. He is critical of the Court's inability to conclude whether or not the threat or use of nuclear weapons is lawful or unlawful in an extreme circumstance of State self-defense.Neubauer, Ronald D. "Testing the Effectiveness of the International Court of Justice: The Nuclear Weapons Case",''Proceedings of the Annual Meeting (American Society of International Law)'', Vol. 91, (April 9–12, 1997), p. 10. In Schwebel's view, it is unacceptable that the Court rendered a ''
non liquet In law, a ''non liquet'' (commonly known as "lacuna in the law") is any situation where there is no applicable law. ''Non liquet'' translates into English from Latin as "it is not clear". According to Cicero, the term was applied during the Roman ...
'' on such a vital question, despite provisions in Article 38 of the Court statute intended to prevent such an outcome. Schwebel expressed his dismay by stating:
This is an astounding conclusion to be reached by the International Court of Justice. Despite the fact that its Statute "forms an integral part" of the United Nations Charter, and despite the comprehensive and categorical terms of Article 2, paragraph 4, and Article 51 of that Charter, the Court concludes on the supreme issue of the threat or use of force of our age that it has no opinion. In "an extreme circumstance of self defense, in which the very survival of a State would be at stake", the Court finds that international law and hence the Court have nothing to say. After many months of agonizing appraisal of the law, the Court discovers that there is none. When it comes to the supreme interests of State, the Court discards the legal progress of the twentieth century, puts aside the provisions of the Charter of the United Nation of which it is "the principal judicial organ", and proclaims in terms redolent of ''
Realpolitik ''Realpolitik'' (; ) refers to enacting or engaging in diplomatic or political policies based primarily on considerations of given circumstances and factors, rather than strictly binding itself to explicit ideological notions or moral and ethical ...
'' its ambivalence about the most important provisions of modern international law. If this was to be its ultimate holding, the Court would have done better to have drawn on its undoubted discretion not to render an opinion at all.


Case: ''Nicaragua v. United States of America''

On April 9, 1984
Nicaragua Nicaragua (; ), officially the Republic of Nicaragua (), is the largest country in Central America, bordered by Honduras to the north, the Caribbean to the east, Costa Rica to the south, and the Pacific Ocean to the west. Managua is the countr ...
filed a complaint with the International Court of Justice stating that the United States was violating international law by using military force against Nicaragua and intervening in Nicaragua's internal affairs, in violation of its sovereignty, territorial integrity and political independence."Military and Paramilitary Activities in and Against Nicaragua." (application) ''United Nations Cases'', 9 April 1984, p. 1

/ref> The United States argued that the Court did not have jurisdiction to hear the case and Schwebel in the first, second and third votes held to determine the Court's jurisdiction, agreed; however, on the fourth vote, despite strong admonitions by his own (U.S.) government for dismissal of the application, concurred with his fellow judges that the complaint was admissible and should be heard."Military and Paramilitary Activities in and Against Nicaragua - Dissenting Opinion of Judge Schwebel." (jurisdiction and admissibility of application) ''United Nations Cases'', 9 April 1984, p. 562

/ref> Schwebel also agreed with the Court that unannounced mining of Nicaragua's ports by the United States was a violation of customary
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. He noted that the unannounced mining had the potential to, and did, affect third party states. Schwebel also found that the United States violated the law of war when the
Central Intelligence Agency The Central Intelligence Agency (CIA ), known informally as the Agency and historically as the Company, is a civilian foreign intelligence service of the federal government of the United States, officially tasked with gathering, processing, ...
orchestrated the publication and distribution of a manual titled, '' Operaciones Sicologicas en Guerra de Guerillas.''"Military and Paramilitary Activities in and Against Nicaragua - Dissenting Opinion of Judge Schwebel." (merits) ''United Nations Cases'', 9 April 1984, p. 266

/ref> However, with the exceptions of Judges Shigeru Oda ( Japan) and Sir Robert Jennings ( UK), he disagreed profoundly with interpretation of what constitutes an armed attack, under international law, by one state on another. The Court's majority found that, under international law, the arms provided by Nicaragua to the pro Nicaraguan insurgent group in El Salvador did not constitute an armed attack on the state of El Salvador by Nicaragua and, as a result, the United States did not have a right under article 51 of the U.N. Charter to collective self-defense in support of its ally El Salvador."Military and Paramilitary Activities in and Against Nicaragua - Judgment on Merits." ''United Nations Cases'', 10 May 1984, p. 161

/ref> Schwebel, however, felt that the scale of involvement by Nicaragua crossed a threshold of what, under customary international law, would be considered an armed attack by one state on another. He stated in his dissenting opinion that the Court's majority did not thoroughly consider the prodigious evidence that Nicaragua was aggressively supporting the insurgency in El Salvador.
It (the Court) has excluded, discounted and excused the unanswerable evidence of Nicaragua's major and maintained intervention in the Salvadoran insurgency, and intervention which has consisted not only in provision of great quantities of small arms until early 1981, but provision of arms, ammunition, munitions and supplies thereafter and provision of command and control centers, training and communication facilities and other support before and after 1981.""Military and Paramilitary Activities in and Against Nicaragua - Dissenting Opinion of Judge Schwebel." (merits) ''United Nations Cases'', 9 April 1984, p. 272.
Schwebel views the court as not being even handed in its interpretation of evidence and testimony. He feels that the Court paid insufficient attention to the rights of both the U.S and Nicaragua's neighbors. He found that emphasizing the rights of Nicaragua, while the U.S. claimed that Nicaragua was itself behind the guerrilla movement in El Salvador, "was incompatible with the principles of equality of States."Moore, John Norton "The Nicaragua Case and the Deterioration of World Order." ''The American Journal of International Law,'' Vol. 81, No. 1 (Jan. 1987), p. 159. Schwebel also notes that the name assigned to the case (''Military & Paramilitary Activities in and Against Nicaragua'') indicates inherent bias and predetermined judgment. Scholars have written that Schwebel was inhibited, however, in making a case for his view due to the withdrawal of the United States from the proceedings and, as a result, the lack of an advocate in the Court to defend U.S. policy and to attack the evidence presented by Nicaragua.Highet, Keith "Evidence, the Court and the Nicaragua Case" ''The American Journal of International Law,'' Vol. 81, No. 1 (Jan., 1987), p. 3.


Case: ''Oil Platforms (Islamic Republic of Iran v. United States of America)''

In ''Oil Platforms (Islamic Republic of Iran v. United States)'', Schwebel, acting as vice president of the ICJ, issued a dissenting opinion to the Court's 1996 preliminary judgement ruling that it could exercise jurisdiction over the dispute. In the case, Iran challenged the
U.S. Navy The United States Navy (USN) is the maritime service branch of the United States Armed Forces and one of the eight uniformed services of the United States. It is the largest and most powerful navy in the world, with the estimated tonnage o ...
's destruction of three Iranian oil platforms in the Persian Gulf after an increase in tensions in 1987-1988. The United States filed preliminary objections to the Court's jurisdiction and a counter-claim challenging Iran's attacks on vessels in the Persian Gulf. Dissenting from the Court's preliminary ruling that it could exercise jurisdiction over the dispute, Schwebel reasoned that the scope of the compromissory clause of the 1955
Treaty of Amity, Economic Relations and Consular Rights The Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran was signed in Tehran on August 15, 1955, received the consent of the U.S. Senate on July 11, 1956 and entered into force on 16 June 1957. The treaty is ...
between Iran and the United States – the alleged basis for jurisdiction – did not encompass the dispute because the parties did not intend, at the time of signing the Treaty of Amity, for disputes of such a nature to be covered by the clause. He noted that the Treaty's purpose was to promote commerce and navigation between the parties, not to regulate uses of force between the parties.Oil Platforms (Islamic Republic of Iran v. United States), International Court of Justice, 12 December 1996 (dissenting opinion by Judge Stephen Schwebel), ''available at'' https://www.icj-cij.org/public/files/case-related/90/090-19961212-JUD-01-06-EN.pdf


Post International Court of Justice career

Since the end of his tenure on the International Court of Justice, Schwebel has acted as counsel, mediator and independent arbitrator in disputes that have involved commercial, corporate and public
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. He has been appointed in 67 arbitral proceedings that have included disputes between states and disputes between states and foreign investors. In October 2010, Schwebel was appointed by the
UN Secretary-General The secretary-general of the United Nations (UNSG or SG) is the chief administrative officer of the United Nations and head of the United Nations Secretariat, one of the six principal organs of the United Nations. The role of the secretary- ...
Ban Ki-Moon as the Chairman of the Kishanganga/Neelum River Hydro-Electric Project (Pakistan v. India) Arbitration. He also acted as counsel and advocate for Colombia in its territorial and maritime delimitation dispute with
Nicaragua Nicaragua (; ), officially the Republic of Nicaragua (), is the largest country in Central America, bordered by Honduras to the north, the Caribbean to the east, Costa Rica to the south, and the Pacific Ocean to the west. Managua is the countr ...
and for
Belize Belize (; bzj, Bileez) is a Caribbean and Central American country on the northeastern coast of Central America. It is bordered by Mexico to the north, the Caribbean Sea to the east, and Guatemala to the west and south. It also shares a wate ...
in its territorial, insular and maritime boundary dispute with Guatemala. In October 2007, Schwebel was appointed to a three-member tribunal tasked with determining whether or not to annul the award (on jurisdiction) rendered in the dispute between the UK registered firm Malaysian Historical Salvors and the Government of
Malaysia Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories of Malaysia, thirteen states and three federal territories, separated by the South China Sea into two r ...
.


Arbitral fora

Schwebel has been chairman or party appointed arbitrator in
International Chamber of Commerce The International Chamber of Commerce (ICC; French: ''Chambre de commerce internationale'') is the largest, most representative business organization in the world. Its over 45 million members in over 100 countries have interests spanning every sec ...
(ICC), International Centre for Settlement of Investment Disputes (ICSID), American Arbitration Association (AAA),
Arbitration Institute of the Stockholm Chamber of Commerce The Arbitration Institute of the Stockholm Chamber of Commerce is an institution for international arbitration affiliated with the Stockholm Chamber of commerce in Sweden Sweden, formally the Kingdom of Sweden,The United Nations Group of ...
(SCC),
London Court of International Arbitration The London Court of International Arbitration is a British private company limited by guarantee with a head office in London. It offers dispute resolution through arbitration and mediation. History The City of London Chamber of Arbitration w ...
(LCIA),
Permanent Court of Arbitration The Permanent Court of Arbitration (PCA) is a non-UN intergovernmental organization located in The Hague, Netherlands. Unlike a judicial court in the traditional sense, the PCA provides services of arbitral tribunal to resolve disputes that aris ...
(PCA), Japan Commercial Arbitration Association (JCAA) and
United Nations Commission on International Trade Law The United Nations Commission on International Trade Law (UNCITRAL) ( French: ''Commission des Nations Unies pour le droit commercial international (CNUDCI)'') is a subsidiary body of the U.N. General Assembly (UNGA) responsible for helping to f ...
(UNCITRAL) ad hoc proceedings.Directory of Members – Stephen M. Schwebel,''International Arbitration Institute (IAI)'' 26-July-2017, http://www.iaiparis.com/profile/stephen.schwebel


Notable cases


Current positions

Election of President and Vice Presidents of the Tribunal
'' World Bank AdministrativeTribunal '' The World Bank Group, 10 Oct. 2017. Accessed January 2018.
Judge Stephen M. Schwebel elected President of the International Court of Justice, Judge Christpher G. Weeramantry elected Vice President, '' Press Communiqué '', International Court of Justice, The Hague 97/2

/ref> Directory of Members – Stephen M. Schwebel,''International Arbitration Institute (IAI),''Accessed 26-July-2017, http://www.iaiparis.com/profile/stephen.schwebel *Judge, Administrative Tribunal of the World Bank,(Member, 2007–Present). *Member, Permanent Court of Arbitration (PCA), The Hague, The Netherlands, 2006–Present. *Member, Board of Directors of the American Arbitration Association, 2006–Present. *Member, Panel of Arbitrators of the Japan Commercial Arbitration Association, 2003–Present. *Member, Institut pour le Arbitrage International, 2001–Present. *Member, Panel of Conciliators and of Arbitrators of the International Centre for Settlement of Investment Disputes (ICSID), 2000–Present. *Member, International Centre for Dispute Resolution Roster of Neutrals of the AAA, 2000–Present. *Editor (honorary), American Journal of International Law, 1996–Present (Member of the Board of Editors, 1967–1981). *Member, Institute de Droit International, 1981–Present. *Council on Foreign Relations, 1956–Present. *Member, the American Society of International Law, 1956–Present. *Member, International Law Association, 1956–Present.


Past non-elected positions

Stephen M. Schwebel
'' www.iaiparis.com'', iai. Accessed 22 January 2018
Dingle, Lesley (2009) Cambridge University, Squire Law Library – Eminent Scholars Archive. Retrieved from: https://www.squire.law.cam.ac.uk/eminent-scholars-archive/judge-stephen-m-schwebel, Accessed 26 July 2017. *World Bank Administrative Tribunal ::President of Tribunal, 2010–2017 *International Monetary Fund Administrative Tribunal ::President of Tribunal, 1994–2010 *American Society of International Law ::Honorary Vice President, 1996–2001 ::Honorary Vice-President, 1983–1996 ::Executive Vice President & Executive Director, 1967–1973 *United Nations International Law Commission, Geneva ::Special Rapporteur on the Law of the Non-Navigational Users of International Watercourses, 1977–1981 ::Chairman of the Drafting Committee, 1978 ::Member, 1977–1981 *United States Department of State, Washington, D.C. ::Deputy legal adviser, 1974–1981 ::Counselor on international law, 1973 ::Consultant to the Department of State, 1967–1973 ::Special assistant to the assistant secretary of state for international organization affairs, 1966–1967 ::Assistant legal adviser for United Nations affairs, 1961–1966 ::United Nations – UNCTAD Working Group on a Charter of Economic Rights and Duties of States (1973–1974) ::United Nations – Special Committee on the Question of Defining Aggression (1971) ::United Nations – Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States (1964) ::United Nations – Legal adviser to the United States delegation, and Alternate Representative in the Sixth Committee, during sessions of the U.N. General Assembly, 1961–1965 *Johns Hopkins University School of Advanced International Studies ::Burling Professor of International Law, 1967–1981 *Harvard Law School ::Assistant professor of law, 1959–1961 *White & Case LLP, New York ::Attorney, 1954–1959


Awards

Gale Reference Team 2002 "Biography - Schwebel, Stephen M."(1929 -)." Contemporary Authors, Thomas Gale. * Fellow, Honorary Fellow, Trinity College, Cambridge University, 2005 *LL.D.,
University of Miami The University of Miami (UM, UMiami, Miami, U of M, and The U) is a private research university in Coral Gables, Florida. , the university enrolled 19,096 students in 12 colleges and schools across nearly 350 academic majors and programs, i ...
, 2002 (honorary) *Honorary President,
American Society of International Law The American Society of International Law (ASIL), founded in 1906, was chartered by the United States Congress in 1950 to foster the study of international law, and to promote the establishment and maintenance of international relations on the ba ...
, 1996–2001 * Manley O. Hudson Medal, American Society of International Law, 2000 *Honorary Bencher, Grays Inn, London, 1998 * Wolfgang Friedman Award, Columbia University Law School, 1998 *Medal of Merit, Yale Law School, 1997 *LL.D. Hofstra University, 1997 (honorary) *Presidential Medal, The Johns Hopkins University, 1992 *Weill Medal, New York University School of Law, 1992 *LL.D.,
Bhopal University Barkatullah University is a state government university in Bhopal, India. Originally known as the ''University of Bhopal'', and informally as ''Bhopal University'', it was renamed in 1988 after the freedom fighter Professor Maulavi Barkatullah, ...
, India, 1983 (honorary) *Gherini Prize, Yale Law School, 1954 *
Frank Knox Memorial Fellowship The Frank Knox Memorial Fellowship program is a scholarship program which funds students from Australia, Canada, New Zealand and the United Kingdom to undertake graduate study at Harvard University. The program is named after the businessman, sold ...
, Harvard University, 1950 *
Phi Beta Kappa The Phi Beta Kappa Society () is the oldest academic honor society in the United States, and the most prestigious, due in part to its long history and academic selectivity. Phi Beta Kappa aims to promote and advocate excellence in the liberal ...
, Harvard University, 1950


Selected works

* "International Arbitration: Three Salient Problems (Hersch Lauterpacht Memorial Lectures)." 1993, Cambridge. * "Justice in International Law – Selected Writings of Judge Stephen M. Schwebel." 2008, Cambridge. * "Justice in International Law – Further Selected Writings." 2011, Cambridge. * "The Secretary-General of the United Nations: His Powers and Practice." 1952, Harvard.


References

{{DEFAULTSORT:Schwebel, Stephen M. Living people International law scholars Yale Law School alumni Harvard University alumni Presidents of the International Court of Justice American judges International Law Commission officials 1929 births Members of the Institut de Droit International Members of the Permanent Court of Arbitration World Bank people American judges of United Nations courts and tribunals American judges of international courts and tribunals