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SYDNEY BAILEY MEMORIAL LECTURE
Friends House, 3 March 2000
"Legal Disputes and Political Realities: The Current Role
of the International Court of Justice"
Judge Rosalyn Higgins, DBE, QC
Sydney Bailey was a friend of such long-standing that I cannot remember when first we met, or where. But it was surely because of our mutual interest in the United Nations. My interests were from the perspective of an international lawyer, but I firmly believed that all good international lawyers should take trouble to understand the international system within which legal considerations operated. Sydney’s interests were primarily those of an international relations specialist; but he firmly believed that international law was part of the international system, and not extraneous to it, and his knowledge of United Nations law was very substantial indeed. Our intellectual interests overlapped significantly, albeit from our different starting points. The many, many conversations we had remain treasured memories and also a valuable storehouse for me to draw upon. And his books, models of clarity and utter reliability, have proved invaluable to international lawyers every bit as much as to others.
Of course, in addition to this inclusive vision of the place of international law in international relations, there were all the other exceptional qualities that made Sydney so special – his total lack of "side" or self importance, his ability to appreciate matters from the perspective of all the different players, and his remarkable open mindedness. At the same time, he never lost sight of the values – for him, values deeply conditioned by his Christianity and his Quakerism – that were to be achieved in the peaceful outcomes that he sought.
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I see in the audience some who are international lawyers of great distinction, and some whose interest may be more general. This makes the pitching of my lecture difficult, but I have thought that if I speak as if to Sydney, I may not go far wrong.
The International Court of Justice is a main organ of the United Nations and is its judicial arm. Indeed, it antedates the UN, in the sense that it is the legal successor of the old Permanent Court of International Justice (which provided international judicial recourse at the time of the League, though it was not itself a main organ of the League of Nations). The case law of the Permanent Court – important for many things, including the powerful promotion of human rights when interpreting the inter war minorities treaties – is still relevant case law for the International Court.
The International Court has a dual role. The first is to provide judicial advice to the UN family of institutions. Certain organs of the United Nations can go to the Court for definitive advice; and so can certain specialized agencies. The UN Charter has given the General Assembly very broad powers of recourse for the seeking of advisory opinions. The other organs and organizations entitled to ask for an advisory opinion may seek to do so if the legal question is necessary for their work. This explains why the International Court declined to answer a request for an Advisory Opinion on the legality of nuclear weapons put to it by the WHO. It said that WHO’s duties of health care were not dependent upon the legality or illegality of the originating factors of the health disasters or catastrophes it had to cope with. But, at the very same time, it did give an Advisory Opinion on a very similar question asked by the General Assembly, whose work covers issues of disarmament and of law. In any event, the Charter does not qualify the circumstances in which the Assembly can ask for an advisory opinion.
Advisory opinions are not technically binding upon those who seek them. The requesting organs treat the legal answers as authoritative, and those answers then have a relevance for the policy decisions of the organs or organizations concerned. Should the UN move a regional economic office from Cairo after the Arab world broke with Egypt in the wake of the Camp David Agreement? Do the Charter provisions on expenses apply to peacekeeping operations – activities not envisaged under the Charter? Is the Secretary-General entitled to issue a certificate as to the status of an employee, and his immunity from suit, which would be binding in a national court of a State member? These are examples of advisory opinions – the first two of a certain vintage, the last very recent indeed – which the Court gives.
Some voices have been heard – including those of two past Presidents of the Court – calling for more use of the mechanism of Advisory Opinions, above all as a means of setting disputes. This suggestion is closely allied to another – that of allowing the Secretary-General to request an Advisory Opinion. At the moment; unlike the General Assembly, Security Council or indeed the Economic and Social Council, he has no such power. The idea of the proponents of these suggestions is that where the Secretary General perceives a destabilising situation between two UN members, and these members will not themselves bring the matter to the Court, he should have the authority to request an Advisory Opinion on the legal aspects of the matter, to assist in the resolution of the dispute.
I must run the risk of appearing judicially conservative in telling you that I am not in favour of these proposals, however well intentioned they may be. It is true that behind many Advisory Opinion requests from UN organs lie disputes between States. Thus the General Assembly request for an opinion on legal aspects of financing UN peacekeeping in the 1960’s arose out of different positions being taken by the Soviet Union and France on the one hand, and many other States on the other. The Advisory Opinion on the WHO arose out of a dispute between Egypt on the one hand, and Arab States on another. Behind the Western Sahara Advisory Opinion lay the rival claims of Morocco and Mauritania. In all such cases there are difficult legal issues as to whether an organ of the UN may secure legal answers to relevant questions which the States themselves have declined to put to adjudication – as under the present Statute and Charter they are entitled so to decline. In all such cases the way through has been found by the Court to provide the legal guidance because the UN organ concerned needs, for its own purposes, to have some legal problems disposed of. But for the Secretary-General simply to try to assist in peacemaking by putting the legal claims of States to the Court, in the framework of an Advisory Opinion request, goes too far in confusing what is advisory and what is contentious.
Further, if neither the Assembly nor the Security Council wish to make such a request, it is hard to imagine that a power given to the Secretary General to do so could avoid great inter-organ disharmony within the UN.
Finally, and importantly, if States perceive that their legal disputes may be brought before the Court by means of an expanded advisory opinion process, they will be even less likely to accept – as they are gradually doing, in increasing numbers – recourse to the Court in contentious litigation which will lead not to an Opinion, but to a binding judgment. The more we clamour for expanded recourse to advisory opinions, the more we harm our hopes for an ever expanding opportunity for the Court to give judgments that are binding on States.
So I think the natural rhythm of advisory opinions should be allowed to continue, and our efforts for progress be directed elsewhere.
Of course, bodies other than those in the UN family could usefully be authorized to ask for advisory opinions. President Chirac, visiting the Court three days ago, seemed in a speech to lend his voice to this idea. Why should not such bodies as the Arab League or the Asian Development Bank, be able to seek legal advice from the International Court of Justice?
The second main function of the Court is to determine legal disputes between States. Parties to the Statute of the Court – that is to say, all UN members, and those few States that have not been members of the UN, where special arrangements are made for them – are entitled to have recourse to the Court.
From 1946 to 1966 the International Court had a small but important docket of cases. In the early seventies – for a dozen years, in fact – it was hardly used at all. By contrast, it now has a very heavy docket, - heavier than at any time of its history or the history of the Permanent Court. The end of the Cold War is part of the story of the current heavy use of the Court, but certainly not all of it. The upturn in recourse to the Court began in the first half of the 1980’s, several years before the arrival of glasnost and perestroika. Many former colonial States who had achieved their independence in the early 1960’s had begun by the 1980’s to see that international law served their own ends as much as those of the developed countries. But finally, and importantly, by the late 1980’s, the marxist doctrine by virtue of which there were no neutral men – and hence no place for impartial judicial recourse – was coming to an end.
There is clear evidence today both that the International Court of Justice commands confidence of States around the world; and that States everywhere are ‘getting the litigation habit’. Our current, or very recent docket, consists of cases concerning Spain and Canada; Qatar and Bahrain; Libya and the United Kingdom; Libya and the United States; Iran and the United States; Germany and the United States; Hungary and Slovakia; Cameroon and Nigeria; Botswana and Namibia; Congo and Uganda; Congo and Rwanda; Congo and Burundi; the UN and Malaysia; Indonesia and Malaysia; Honduras and El Salvador; Bosnia and the Former Yugoslavia; Croatia and the Former Yugoslavia. The geographic spread is remarkable and pleasing. It is a fact that in recent years, some 45% of the Court’s docket has concerned Africa. We hope we may contribute usefully to the great problems being encountered in that beleaguered continent.
There is another visible trend. It used to be the case that most matters coming to the Court concerned maritime or territorial disputes, often arising out of the history of colonialism. There have been many, many such important cases before the Court. Very recent and current examples would include Burkino Faso v. Mali; Indonesia v. Malaysia; Chad v. Libya; Cameroon v. Libya; Qatar v. Bahrain; Botswana v. Namibia and Nicaragua v. Honduras. These cases are, of course, all important for the States concerned. But they may not be at the heart of current international relations more generally. And while certain points of legal interest do arise from them, often they are largely based in a reading and weighing of the historical evidence. But in recent years there has been an increasing tendency for States to have recourse to the Court for issues having a very high contemporary political profile. I need only mention, to make my point, the Libyan claims against the United States and the United Kingdom in the Lockerbie matter; the Iran claims against the United States over the bombardment of oil platforms in the Gulf; the various genocide claims in the Balkans; the cases brought by the Former Yugoslavia against 10 NATO countries, in relation to the Kosovo bombing; the Congo’s cases against its neighbours claiming unlawful military intervention; and Pakistan’s current action against India regarding aerial activity over Kashmir. All of these are at the very heart of contemporary international life, and have within them a legal interest going far beyond the immediate protagonists. Of great importance, too, was the case that Slovakia and Hungary litigated before the Court relating to the dam project on the Danube. Not only was this the first all East European case, but it gave rise to issues of powerful international importance. These included whether performance of treaties made in the era of Stalinism could be insisted upon today; and the relationship of evolving environment norms to treaty agreements.
So the Court cannot but note with a certain satisfaction these trends.
At the same time, some very considerable challenges face the Court today – and thus, the wider community whose interests and aspirations the Court serves.
In the first place, the Court has to be in a position to deal effectively with these greater demands made upon it. This necessity has both an objective and a subjective face. By that I mean that the Court must be a modern and efficient tribunal; but also that those of us who sit in it as individuals must live in the real world and understand that through our judicial work we are promoting certain values in international society.
Let me say a word about each of these. The increased number of cases on the docket ran the danger of unacceptable delays in processing them. The Court has looked at all aspects of this problem and has made some significant changes to its procedures. It found that considerable savings of time could be met by no longer continuing with the preparation of the Judges’ Notes in most disputes concerning the Court’s jurisdiction. I should explain that the practice, since the inception of the Permanent Court, has been for each Judge to prepare what is essentially a draft judgment on a case; that "Note" – anywhere between 15-80 pages – is then translated so that they are all available in the two working languages, English and French, and then circulated to the whole Bench for study. All this happens before we meet to deliberate upon a case. Eliminating this practice in cases on our jurisdiction – which still constitute too large a part of our work – makes a saving of about 7 weeks or more in each case. The Court has also issued instructions for parties to a case, in which it seeks to tighten the procedures that they themselves should follow – all with the aim of a more speedy throughput.
I should also mention that the Court is now in the forefront in using the new electronic technology. In 1997 the Court established its website. The website seems to be very well regarded and greatly used. The website is to be found at http://www.icj-cij.org There is much much more than just the judgments and opinions. It has been an important point of principle for us that the moment the oral arguments open, the voluminous written pleadings in a case become available on the website, in their entirety. Since our website was established we required pleadings to be provided in diskette form, with technical characteristics that will facilitate immediate placing on our website. The same is true of the texts of the oral proceedings. Anyone can now follow, day by day, the arguments in Court in a particular case, as these are posted on the website on a daily basis. And the judgment, together with pictures of the Counsel concerned in that case and the Bench, are available on the website from the moment that the Deputy-Registrar passes to the Agent the paragraphs of the dispositif - that is to say, as the President is concluding the reading of a judgment in open court. During this short period some 785,000 copies of judgments and opinions have been taken down from the website. Every single day some 18,000 Court documents of all sorts are downloaded by those who visit our website. This is, of course, a free resource available to all teachers and embassies.
What we are and what we can do is now understood by huge numbers of peoples and governments.
But keeping up with the technology is not enough. We must have a contemporary mindset, too. As judges, we must walk that difficult line between providing the stability and predictability that characterizes law, and responding to legitimate aspirations that will inevitably develop and change through time. The only way that tightrope can successfully be walked is to remember that law is more than the application of rules: it is rather decision-making on the application of norms to situations in context, remembering always that we are there to promote values that are inclusive to all peoples, regardless of race, religion or gender, and values that promote human dignity.
The recent encouraging tendencies in judicial settlement at the Court are the more striking, because they have been occurring at a time when it is no longer the sole international court, sitting at the pinnacle of international affairs. On the contrary, we have seen a phenomenon that has gone hand in hand with globalization. I speak of the decentralization, and indeed fragmentation, of the international judicial process.
The world is greatly changed since the Permanent Court of International Justice began its work in 1922.
Today the corpus of norms is vast, the subject matter apparently expanding indefinitely, and the subject matter being regulated across national boundaries concerns not only States but other actors too. The component elements of these phenomena go hand in hand. The more our world is globalized, the more we all have to depend upon each other for our common welfare, the less the State retains its monopoly as an international actor and the more systems of dispute settlement we are likely to find.
The International Court settles disputes between States. Cases cannot be brought by individuals and indeed, neither they nor non-governmental organizations have any standing to intervene in inter-State litigation or to submit amicus briefs. That is how it is today. And, so far as the classic issues that engage States in their relations with each other - territory, boundaries, treaties, etc. - that probably does not matter too much.
But it goes against the very subject matter that is today burgeoning - human rights, environmental matters, globalized trade - for only States to be the players. In fact, multinationals, corporations and non-governmental organizations are increasingly involved in the international legal process. The permeability of State frontiers means that their interests are more and more affected by international legal regulation. It is individuals who are the repository of human rights - rights they very often wish to exercise against their own States. And NGO's - non-governmental organizations - have long been involved in the work of organs set up under international human rights treaties to monitor compliance with those treaties.
One of the consequences of the breakdown of the old structures is that we are now witnessing a multiplication of international legal institutions. From 1922 to 1960 the International Court of Justice at The Hague stood alone as the forum for the resolution of international disputes. In 1960 the European Court of Human rights started its work, allowing States parties to the European Convention on Human Rights to litigate violations of that Convention in Strasbourg, as well as providing a forum for individuals to bring claims against States. In the human rights field there has followed the Inter American Court of Human Rights in Costa Rica. The European Court of Justice has its own special responsibilities within the European Union. Africa is following suit. There also now exists a new International Tribunal on the Law of the Sea, set up under the Law of the Sea Convention of 1992, whose creation was a result of a transient conjunction of events. There is a certain overlap of subject matter jurisdiction between the International Court (with its long history in settling law of the sea disputes) and the new Hamburg Tribunal. But it is also the case that this Tribunal is open, in certain types of disputes, to individuals, corporations, State enterprises and international organizations.
If the human rights courts and the Law of the Sea Tribunal predate globalization, their accessibility to non-State parties is consonant with it.
We thus have a certain decentralization of some of the topics with which the ICJ can in principle deal to new, highly specialized bodies, whose members are experts in a subject matter which becomes ever more complex, which are more open to non-State actors, and which can respond rapidly. I think this is an inevitable consequence of the busy and complex world in which we live and is not a cause of regret. It is, of course, important that these courts and tribunals should not all be saying different things and we may in due course need mechanisms to ensure that.
The International Court, while de facto shedding some of the more specialized subject matter over which it has competence in principle, nonetheless retains a central importance. It is the body where the great legal-political issues of the day between States are litigated. These issues - title to territory, treaty matters, issues relating to the use of force, everything to do with the UN - are critical in their implications and vast in their presentation. They necessarily take a certain time to handle. The Court remains the primary judicial organ of the United Nations and the only court which can give advisory opinions to the UN and its specialized agencies, and the only court which can deal with the interface of the various fields of international law.
I should add that the three new criminal courts are really a quite separate story. The existing Criminal Court for the Former Yugoslavia and for Rwanda have been set up by the Security Council to bring to justice those individuals who have violated the laws of war and humanitarian law in those countries. Though the relevant acts are those abhorred and forbidden under international law, these are essentially courts of criminal justice, whose rules and procedure reflect an international legal consensus on criminal legal practice. As you will all know, a Statute has recently been agreed for a new permanent International Criminal Court, with a potentially general remit. For exactly that reason, it appears a much weaker body than the existing criminal courts and more heavily subject to political control, both regarding the formulation of what will constitute the relevant legal offences and regarding when the prosecutor shall act.
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Any court must be receptive to the idea of constant improvements that it could embrace to advantage and as I have explained, we have actively embraced this proposition. Nor do we suppose that our work in this regard is complete. However, there remains at the heart matters an ineluctable truth, about which we are reluctant to speak even while freely discoursing on this or that proposal for marginal benefits.
I speak of the fact that the jurisdiction of the Court is based on consent. All UN members are thereby parties to both the Charter of the United Nations and the Statute of the Court. But that only provides them with the option of settling their legal disputes before the Court. It does not compel them to do so. The Court cannot issue a binding judgment as to a State’s obligations under international law, about which it is in dispute with another State, without its consent.
That brutal reality stems from the Statute itself, which stipulates that the Court shall settle all legal disputes to which the States parties thereto have given their consent. The harshness of that reality is, of course, tempered in a variety of ways. In other words, devices exist whereby we do not have to rely on a State charged with acting illegally giving at that moment its consent to the Court deciding the matter.
In the first place, a sort of "forward consent", albeit still optional, is provided for in the Statute itself. Article 36 (2) provides that a State can agree that the Court will indeed have jurisdiction over any disputes to which it is a party, provided always that the other State party has made the same "declaration of forward acceptance". This is the famous so called ‘Optional Clause’. In other words, a State gives its consent on the understanding of this basis of reciprocity, without knowing at the moment it gives its consent either who the other litigious party will be or indeed what will be the subject matter in dispute. So to this extent the requirement of consent is tempered.
Another way in which the doctrine of sovereign consent to the Court’s jurisdiction has been reined in has been the placing in multilateral treaties of a clause which says that disputes thereunder will go to the Court. So the decision to become party to this treaty encompasses the acceptance of the Court’s jurisdiction in relation to disputes about the treaty’s application or interpretation.
Both of these are welcome: but we should not suppose that we are not left with a very serious situation.
So far as the so-called ‘Optional Clause’ is concerned, the agreement given is invariably more apparent that real. This is because States can make their declaration of acceptance subject to one or more reservations. These reservations can specify States in respect of whom the general acceptance won’t apply, or topics that are reserved from the jurisdiction of the Court. We recently saw the phenomenon, which sufficiently disturbed some Judges for them to comment on it in separate or dissenting opinions, of a State which had accepted the jurisdiction of the Court under the Optional Clause; then withdrew that acceptance; then resubmitted an acceptance of the Optional Clause with certain law of the sea matters now reserved from the Court’s reach; and simultaneously issued legislation which raised some very problematic issues of legality by reference to the law of the sea.
There is scarcely a case based on the optional Clause in which the defendant State does not insist that the Court does not, in the particular event, have jurisdiction – usually because a reservation is said to apply to the matters at hand. So the Court has first to hold hearings to determine its own jurisdiction. This delays the coming to the merits. In the hands of competent counsel the prospects for delay and challenge as to jurisdiction may be very extended indeed.
The net result is that, even where the challenges have not much strength, the coming on of the merits is long delayed. And a further result is that too large a percentage of the Court’s time is spent on resolving its own jurisdiction. It is really not satisfactory that it should be thus after fifty years of this Courts existence, and eighty years have passed since the Permanent Court was established. This state of affairs reflects a depressing immaturity in international relations.
Not even Court reference clauses in treaties escape this, for a State may want to argue that the subject matter of the claim is not really about the treaty rights, but is rather about something else. We have had extended preliminary litigation in this category, too, exemplified in the Oil Platforms case.
Supporters of judicial settlement of disputes urge acceptance of the Optional Clause upon States, and there are indeed many UN resolutions directed to this end. But the reality is that more acceptance of the Optional Clause will lead only to more and more cases contesting jurisdiction, as that clause comes later to be invoked by some State or another.
There are really only three ways forward. The first is reliance on the already welcome trend towards joint reference to the Court. States agree between them that the time has come to go to the Court with their dispute, and draw up together the ‘compromis’- i.e. the legal questions that the Court is to decide. Happily more and more cases of this sort are coming to the Court, from all corners of the world – from Italy and the United States; from Hungary and Slovakia; from Namibia and Botswana, for example.
The second way is a heavy public campaign to urge States to accept the jurisdiction of the Court under the Optional Clause without reservations, and to remove reservations where they already exist.
The third is more radical still: to make membership of the UN carry with it an automatic conferral of jurisdiction on the International Court for the resolution of legal disputes. This last, of course, would require Charter and Statute amendment. We all know how extraordinarily difficult it is to achieve that and what a long and difficult road such a suggestion entails. Nonetheless, the very existence of a campaign to this end would colour the dialogue on the use of the Court and make its own impact on the second way forward of which I spoke, namely, the mobilizing of public opinion for a more responsible use of reservations to jurisdiction that exists thus far.
It is easier for the public to be interested in questions of landmines, or nuclear weapons, I well appreciate. But the less glamorous question of an obligatory resolution of legal disputes before international tribunals is just as vital if we are to make real progress in this century.
My final comments are these: it is extremely easy, and fully understandable, for people of good will to assume that if only a question could get to the International Court, their own perspectives on that question will be upheld and vindicated. I have seen this phenomenon of confident certainty manifesting itself in a variety of circumstances: nuclear testing, nuclear weaponry more generally, the ability of the Court or otherwise to set aside Security Council decisions, and of course the NATO bombardment in Kosovo.
But Sydney Bailey was nothing if not a realist, and I owe it to his memory to say quite clearly that the answers are not nearly so self evident as is often supposed. In most of these issues we have no specific existing rules that can simply be pulled out of the drawer by the Court. Rather, the judicial function is to take those norms of more general application that do exist, and apply them in a way that promotes those international values to which we all subscribe. And therein lies the problem, because there are often competing values at stake: in the nuclear field there are the prohibitions against indiscriminate suffering, and the protection of civilians and other protected categories on the one hand, and the terrifying prospect of use by rogue States or terrorist elements on the other. In the question of the Court’s relations with the Security Council (which have surfaced sharply in the Lockerbie case) the question of the Court’s role as the guardian of legality is nicely balanced with the importance of Security council independence in making political decisions. As for the issues raised in the Kosovo litigation, the task is to find a meaningful way to reconcile the imperative to protect minorities against massive maltreatment for reasons of policies or religion, with the need to retain the Security council as the arbiter of when force should or should not legitimately be used under the Charter.
These really are not easy questions and it should not be thought that the more invocation of international law makes them so.
But the Court will continue to grapple with such issues, which now come to it more and more, conscious that however much the world has changed since its inception, it remains the principal judicial organ of the United Nations and at the heart of all hopes for our future.