Global Justice in the 21st Century

[Prefatory Note: The following article was published in The Nation online website, July 13, 2018. It seems relevant as one perspective on how Robert Mueller as Special Counsel might perform in carrying out this historic role of examining the wrongdoing of a sitting president. It is strange that this quiet undergraduate student of more than five decades ago should now have the destiny of the American republic in the palms of his hands.]

I Was Robert Mueller’s Undergraduate Thesis Adviser—and What Gives Some Hints About What He’ll Do as Special Counsel

Not long ago a journalist approached me out of the blue to do an interview about my impressions of Robert Mueller. At first the name didn’t ring a bell; it never crossed my mind that he might be referring to theRobert Mueller. You can imagine my surprise when this same journalist told me not only that he was referring to the special counsel appointed to investigate wrongdoing during the Trump presidential campaign but that Mueller had been my thesis advisee at Princeton 52 years ago.

The now-eminent Mueller had indeed been my advisee, normally a rather close and somewhat collaborative relationship. The senior thesis is usually the crowning experience for Princeton undergraduates majoring in the social sciences. To have zero recollections of the man was surprising, especially as the subject of his thesis coincided with my central interests at the time.

His essay addressed a seemingly technical issue: the authority of the World Court to decide a case involving the extension of South African apartheid to South West Africa (Namibia). Mueller’s thesis was an unusually perceptive analysis of a controversial judicial decision by the International Court of Justice (ICJ), commonly known as the World Court. Mueller approached the law and its political context in a sophisticated manner that would have been impressive if done by a law-school graduate, let alone a college student who, as far as I know, had not yet opened a law book.

His long analytical essay addressed a seemingly technical issue: the authority of the ICJ to decide a case involving the extension of South African apartheid to South West Africa, a territory then administered by Pretoria. Germany had conquered South West Africa in 1884 and imposed colonial rule over the sparsely populated territory until Germany lost its colonies after World War I. The Treaty of Versailles established the territory as a Mandate, to be administered on behalf of the League of Nations by South Africa. (That arrangement was terminated in 1966 by the United Nations General Assembly, which had inherited the League of Nations supervisory role after World War II, but South Africa retained control of the territory until it was granted independence in 1990 as the sovereign state of Namibia.)Until the 1966 World Court case, South West Africa was primarily known for the extreme nature of German colonial rule under the personal authority of a close relative of Hermann Göring, regarded as an ugly and prophetic prelude of the Nazi era.

On rereading Mueller’s thesis, I found the international-law issues he discusses of considerable interest even now, five decades later, but far more relevant for the broader public is what Mueller’s thesis tells us about his approach to the interplay of law, politics, and morality in the apartheid context, when he was a college student.

I would not attempt such an assessment if I did not think the thesis contains some hints about his decision-making process as special counsel. This seems of some value, given the gravity of the current situation and the overall contempt displayed by President Trump for constraints of any kind, including those of law. Before his appointment as special counsel, Mueller was generally regarded as an admired civil servant, having effectively directed the FBI for 12 years. He is commonly described as “a lifelong Republican,” though he has also enjoyed exceptionally strong bipartisan respect. Until Trump and such media poodles as Sean Hannity came along, it would have been unthinkable that someone with such an honorable and distinguished public image would find himself under attack as biased or as leading a witch hunt, but so it goes in these dark times.

It is helpful to know a bit about the 1966 World Court case to evaluate the approach taken by Mueller and how it might shed light on the likely performance of his present undertaking. The academic-sounding title of the thesis is “Acceptance of Jurisdiction in the South West Africa Cases—Its Effect on the Development of the International Court of Justice.” It might seem like the sort of dry inquiry that only a few legal specialists would care enough about to pore over the elaborate pleadings and lengthy judicial decisions. In this sense the title gives a false impression. Mueller’s inquiry is really about whether an international tribunal can make a useful decision bearing on the lawfulness of South African apartheid. The specific issue facing the ICJ was whether under a Mandate agreement, Ethiopia and Liberia, as members of the United Nations, could bring a dispute for adjudication as to whether the extension of the South African apartheid regime to South West Africa was a violation of South Africa’s obligations as the Mandatory power. Those obligations required Pretoria to administer South West Africa in ways that protected the well-being of all of its inhabitants. (In the spirit of disclosure, I should mention that I became a member of the legal team representing Ethiopia and Liberia the year before Mueller wrote his thesis.)

Often, as in this instance, a case before the ICJ is divided into two separate proceedings. First is the so-called jurisdictional phase, a lengthy inquiry into whether the court possesses the proper authority to adjudicate the legal dispute. This was the focus of Mueller’s thesis. After that comes the merits phase, which only occurs if the ICJ concludes that it has the authority to decide, and issues a decision to this effect.

There was a four-year gap between the two decisions, with the jurisdictional decision reached in 1962 and the substantive decision in 1966. When Mueller wrote his thesis, the second—and very controversial—decision of the ICJ had not yet been issued, and its surprise outcome narrowly in favor of South Africa would have been entirely unanticipated by Mueller. In view of his treatment of the issues, it would probably have disappointed him, although he would likely have respected the legal reasoning that led to the perverse result of validating apartheid.

The jurisdictional issue addressed by Mueller was trickier, and more intriguing than might appear at first glance, and it divided the 15 judges on the court. It was tricky for two reasons. First, it pitted the views of a sovereign state, South Africa, against those of a divided international community on the highly inflamed question of the compatibility of apartheid with international law. Second, it raised the question of whether a decision that would likely be rejected by South Africa could be rendered in a manner that would be effective. It should be understood that a repudiated decision by a court lacking enforcement powers would weaken both international law and the ICJ as an institution, and could make countries more hesitant to submit their disputes in the future. Yet the opposite case was also persuasive: A decision holding South Africa responsible for violating its legal duties as Mandatory on human-rights grounds would be widely appreciated as a contribution to the development of international law and consistent with the ethical expectations of public opinion, while a decision refusing to condemn apartheid would produce a cynical reaction.

What makes the Mueller approach in his thesis relevant for today is that the core of his inquiry is how a judge should interpret a legal document, which raises the jurisprudential question of whether law can be understood apart from its sociological context. This remains a subject of debate among international-law experts, with Europeans usually taking the view that law should be interpreted as autonomously as possible, by reference to the language in the text and without regard to political or moral considerations, and by refusing to heed the fact that societal values change over time in ways that might help guide an interpretation of the law.

The American view, with many variations, is that the context is always relevant, as language is inherently ambiguous and reflects values and interests, and since those values and interests evolve over time, they should influence the dynamics of judicial interpretation.

Mueller, while adopting a dispassionate tone, sides with the American approach in his thesis, emphasizing that the purpose of a judicial decision is to be effective with respect to the issues at stake as well as to respect the intentions of parties to the extent that these are made clear in the documents under review.

At the same time, Mueller recognizes that the ICJ is entrusted with a distinctive mission, and this in the end seems to shape his evaluation of whether the court handled the case appropriately. Mueller describes his undertaking in the thesis as follows: “to show that, though the Court accepted jurisdiction in the face of many persuasive legal arguments backing the view that the case was outside the jurisdiction of the Court, nevertheless the decision was sound in regard to the role of the Court in the maintenance of international peace.” This phrasing is more awkward and convoluted than the careful reasoning and conceptual clarity of the thesis as a whole (for non-lawyers, it is important to appreciate that the term “jurisdiction” means “authority to decide”).

Mueller condemned the South African administration for having set aside “the [least] arable, the most desolate, and the most unproductive” land for “Natives and Coloreds.”

The jurisdictional issues are crucial in a case like this: Given the weight of international opinion against the practice of apartheid, it would appear that once the authority to decide is established, the outcome on the merits would follow as night follows day. In fact, in the most unpredictable development in the entire history of the ICJ, a deeply divided court ended up deciding in favor of South Africa. This decision on substance was so shocking to the international community that it generated a backlash at the UN that, ironically, turned out to be worse for South Africa than a defeat at the ICJ would have been. The UN General Assembly responded to the ICJ’s decision by voting overwhelmingly to terminate the Mandate, proposing political independence for South West Africa, leading eventually to the birth of the newly independent state of Namibia in 1990. (Mueller could not have been influenced by any of this, as it took place after the completion of his thesis.)

It is of particular relevance that the division in the court, in the jurisdictional phase, between those judges who wanted to accept the case and those who did not was elaborately argued in several learned opinions. Despite his antipathy to apartheid, Mueller clearly believed that the rejectionists had the better of the narrow legal arguments. Yet, as suggested, this did not resolve the issue for Mueller. He set forth an argument showing that South Africa had pursued an oppressive set of policies and practices that were imposed on the native population in draconian fashion. Pretoria had established a racial divide that created a color line “no less severe than the Iron Curtain.” Mueller condemned the South African administration for having set aside “the [least] arable, the most desolate, and the most unproductive” land for “Natives and Coloreds—45 years after the territory became ‘a sacred trust of civilization’” (the latter phrase is language in the agreement establishing the Mandate).

In this regard, South Africa acted unacceptably with respect to its duties as Mandatory, failing to report properly to the international community, as required, and adopting what Mueller calls “procrastination and delaying tactics” over a period of more than four decades. In contrast, Mueller notes, the League of Nations (and, after World War II, the UN) engaged in “patient waiting” for cooperation in fulfilling the purposes of the Mandate. As Mueller writes, “How long can she [South Africa] rely on her sovereignty as a sanctuary, within which she can negate the progress made in the rest of the world in ensuring the human rights of all peoples?” One factor that makes an examination of Mueller’s thesis of interest is that there is a certain institutional similarity between the ICJ case and his task as special counsel.

After a careful and intellectually sympathetic presentation of the conservative arguments against jurisdiction articulated in a dissenting opinion by two celebrated jurists, Mueller concludes that “the arguments against the acceptance of jurisdiction are more forceful in presentation than the arguments for acceptance of jurisdiction.” He goes on to say, “However, this does not mean that the arguments of the Court are unfounded on legal grounds.”

It is here that Mueller makes the rather subtle move of giving priority to the institutional mission of the ICJ to develop international law and contribute to world peace. In other words, Mueller considers the larger purposes of the law in this context to be the promotion of justice, respect for international law and human rights, and even the maintenance of peace.

Mueller proceeds thoughtfully to develop this rather nuanced view of the role of the ICJ. He is sensitive to the court’s need to manifest respect for the sovereign rights of states even as it serves these larger goals of peace and justice. He perceives this sort of jurisdictional decision as one way to balance sovereignty against upholding the interests of world order.

In the end, Mueller says that either way of deciding this jurisdictional question would be in accord with “acknowledged principles of international law.” He makes clear that the ICJ setting makes it inevitable that judges exercise greater discretion than in domestic law contexts.

There are fewer precedents to guide interpretation, and no international legislature exists, giving the ICJ the task of promoting the development of international law. After exploring the wider issues raised, Mueller reaches his conclusion: “In sum, on the basis of what is known of the case at the present moment, the decision [to accept jurisdiction] was a positive contribution…to the ultimate goal of a world peace founded upon a rule of law.”

Against this background, what can we say about Mueller’s approach to the controversial interface of law and policy in the context of his role as special counsel? One factor that makes an examination of Mueller’s thesis of interest is that there is a certain institutional similarity between the ICJ case and his task as special counsel. Both institutional procedures are rather obscure to the public, including the media, and can be seen as operating free from any overriding set of traditions and precedents. In both cases, there are no clear boundaries specifying proper action in situations that have a high political profile. As with the ICJ, the special counsel enjoys a rather wide orbit of discretion, which of course is part of what worries the White House and invites controversy. We only have to recall how a recent special counsel, Kenneth Starr, pilloried President Bill Clinton to realize how treacherous this terrain can be.

The most striking feature of Mueller’s thesis, aside from his impressive treatment of technical legal issues, is his determined effort to explain in a fair-minded manner reasonable differences of legal opinion. What is most significant is his accompanying view that there may be instances, such as in the ICJ case, where opposing views are both based on sound legal reasoning, producing a situation in which there is no way to distinguish legal right and wrong on the merits, thus making non-legal factors such as human rights, peace, and justice potentially decisive.

Yet that wider context is also one of conflicting concerns, since the court must show proper respect for sovereign rights, avoid the issuance of ineffective decisions, and not be seen as engaging in judicial legislation. Mueller impressively depicts this delicate balance.

It seems responsible to generalize from this understanding that Mueller will make an exhaustive effort as special counsel to gather the evidence and consider the best arguments on all sides of the issues under investigation as impartially as humanly possible. If the facts and law in the Trump inquiry lead to the sort of legal ambiguity that confronted the ICJ, then Mueller would likely feel obliged to consider the effects of any action on the legitimacy of constitutional democracy, including how it affects the confidence of the citizenry in the integrity of the rule of law.

In a sense, those who fear the damage done by Trump’s presidency to American institutions can only hope that Mueller as special counsel will exhibit the same kind of priorities as Mueller did when he was a Princeton senior. The early Mueller sided with the ICJ majority in its view that the human rights at stake were more important than deference to the technical virtuosity of the judges who favored turning their back on the victims of South African apartheid.

We do not know at this point where the evidence leads with respect to the extensive investigations of the special counsel, but if it gives responsible grounds for initiatives strengthening American political democracy at this critical time, one can only hope that Mueller will seize the occasion. One thing is almost certain to be present if he does proceed in this more activist manner: The case will be put forward dispassionately, but with due respect for the evidence and for the sanctity of constitutional rights and procedures, including deep respect for the office of the presidency.

Tags: Approach to Interpretation, Legal Analysis, Princeton Thesis, Robert Mueller, Special Counsel