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LSE: Public lectures and events
LSE Summer School 2010 - Contemporary Developments in International Law and the Role of the International Court of Justice
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I shall start by introducing myself because many of you won't know who I am. I'm Andrew Murray and I'm the director of the Law Summer School program. So I bear responsibility if you're taking one of the LL courses, but not if you're taking any of the others. There's just one or two things I need to say before we get to the main event for this evening. The first one is a simple administrative thing. If you have a mobile phone, can you either turn it off or turn it on to the silent mode so that we don't get the Nokia ringtone blaring out two thirds of the way through the lecture? So if you can just check your phones are off. As you're all checking your phones, it falls upon me to welcome you all to tonight's public lecture. It is one of the aims of of the LSE Summer school to attempt to recreate the full LSE experience for the students who take the summer school program. And as any LSE student will tell you, one of the most important parts of being an LSE student is the wide and varied range of public lectures and public speakers that we get here at school. We're very fortunate, partly by our reputation, partly by our geography being where we are based in central London. And so these public lectures, which were instituted in 2008, are to try and give you at least a flavor of that experience by having speakers of the very highest quality. Now, the job of chairing a public lecture is something that fills academics with either joy or dread, because it all depends on the quality of the speaker that you have. If you have a good speaker, it is one of the easiest jobs you can do and is great fun. If you have a speaker who is poor, then it is a terrible job. I am pleased to say that tonight. I have been looking forward to tonight's lecture with great joy for some period of time. And this is because Sir Christopher Greenwood is one of the best speakers I could hope to introduce and chair to you all just by short introduction. Sir Christopher Greenwood is certainly a speaker of the highest quality. He is a judge of the International Court of Justice, based in the Hague, the Netherlands. He was elected by United Nations General assembly and security council in November 2008 and took office in February 2009. Before he became a judge of the International Court of Justice. He's had a long, varied and extremely successful career, both as a practicing barrister, where he's appeared before the House of Lords on 10 occasions. That's the UK's highest court, before it renamed itself the Supreme Court. And he's pled some of the highest profile international law cases of the last 10 to 15 years, including the Pinischy case and including the Bankovic case which involved the attack on Radio Television Serbia during the Serbian campaign. And he also pled the Kuwait Airways case involving the appropriation of the assets of Kuwait Airways during the invasion in 1990. That one, wasn't it? The first invasion, yes. He's also been a long and very successful academic lawyer and he has written over 100 articles and a large number of books. He's the joint editor of the International Law Reports and he was, prior to taking up his position with the International Court of Justice, professor of International Law at the London School of Economics. So tonight we're welcoming him home. So I hope you all give Sir Christopher a very good and warm LSE welcome and show him that the summer school students can be every bit as warm as the full time students. And I now pass over to Sir Christopher who's going to talk about the role of the International Court of Justice and the role of the judge of the International Court of Justice in contemporary international law. So I give you Sir Christopher Greenwood.
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Well, Andrew, thank you very much for that kind introduction and thank you all for the welcome you've given me. I must say it's very good to be back here in the LSE at what I regard as the most exciting university in probably the most exciting city in the world. I spent 13 very happy years here. But the only sense in which this is not a coming home, I'm afraid, is that the rather grand new lecture theatre was just opening as I left. I gave most of my lectures in the crummy run down old lecture theatre theatres which you're not allowed to see and indeed may very well not exist any longer. Now what I'm going to talk about this evening, as Andrew just said, is contemporary developments in international law and the role of the International Court of Justice. But let me set the perspective for that exactly a week ago today, the Court gave an advisory opinion on the Declaration of Independence in Kosovo. It attracted considerable attention in the media, although not so much in the media here, where the fact that John Venables, the boy who was responsible for the murder of a very small boy many years ago in Liverpool, had just been convicted on child pornography charges, was considered far more important and relevant to the man in the street's daily concerns. But in Pristina and in Belgrade and in a great many other capitals around the world, I rather think the Kosovo opinion took priority over the Venables trial, because not only was that case important for the population of Kosovo and Serbia, it had a much wider resonance for the rest of the international community. As you can see from the number of states that took part, 28 states and the authors of the Declaration of Independence took part in the oral hearings, and another 15 states made written submissions, although they didn't turn up for the oral session as well. Now, the court decided by 10 votes to four, and I should say at the outset that I was one of the 10, rather than one of the dissenting minority. We decided by 10 votes to four, that Kosovo's declaration of independence did not violate international law. I want to come back and look at that decision, at the reasons that led to it and the reasons that the court has given. But before I do so, I think it's perhaps appropriate to say a little bit more first about international law, because I realise not all of you have the benefit of being international lawyers, though I hope many of you will decide on a change of career after the call off this evening. In order to clarify that remark, I hope many of you who aren't international lawyers at the moment will decide on a change of career. If I put off those of you who are international lawyers, well, that's perhaps a bit of a failure on my part. I want to say a little bit about what international law is and also about the International Court of Justice, who we are and what we do. And then I'll come back to Kosovo and the other cases which have been on our docket in the time that I've been a judge the last 18 months, although I'm sure you'll appreciate that. Whereas when I was a professor, I could say whatever I liked about the judgments of the International Court of Justice, today I have to behave myself, and I'm therefore a little more circumspect in what I say than I used to be. Now, let me begin by saying a little bit about international law itself. People are often rather confused about international law. Indeed, they're often rather confused about law generally. To many people, what international law means is. Well, it tends to mean very high fees and very good travel to a great many people, which is why it's always been an extremely popular career. Yes, I see one or two nods from the audience at that point, but it's very important to. To make clear that international law is not the same as the law of other countries. Each of the just short of 200 states in the world has its own legal system. Indeed, some have more than one the United States of America boasts, I think, 52 different legal systems within its borders. Even this country, one of the most centralized in the world, has English law, which also applies in Wales. Scottish law, which bears no resemblance to English law at all. It's much closer to French law in some respects than it is to English law. One of my colleagues once said, if you go into a court in Edinburgh at the end of a long hard day, the judge smiles at you and tells you you've been a soils it, and you don't know whether you've won your case, lost it, or been reported to the Bar Council for unethical conduct. Mr. Murray, being Scottish, will be able to explain what an assoilsy actually means. I certainly won't try to. And of course, we have the law of Northern Ireland, which is neither the same as Scottish law nor as English law. But those are the different national legal systems. And they reflect the fact that, first of all, it is a mistake to think of law as a science in the modern, rather narrow sense in which we use that term. It's not like medicine. The human body is much the same in any part of the world. The same medical training will enable you to operate on somebody from one continent to another. But law varies a great deal. Just to take one rather small example, some years ago I was counsel in the case about the lockable air disaster before the International Court of Justice. And it was a blinding revelation to me to discover that the definition of murder in Scottish law is different from the definition of murder in England. Certain sorts of case that would be manslaughter in England are classed as murder north of the border. Now, that's between two jurisdictions that are in the same country with a common tradition stretching back hundreds of years. Years. So you can imagine how much greater are the differences between, say, the law of Japan and the law of the United States, or the law of South Africa, a mixture of civil law and common law, and the law of norway. So those 200 or so different national legal systems are not what we talk about when we talk about international law. They are, if you like, the internal law laws of the states that make up the international community. And that's the second preliminary point I want to make. Just as law is not a science, the international community remains a gathering of states. It's a bit more than that nowadays, but it's still at the end, an organ, a community which operates on the basis of the interaction of sovereign states. Each of those states is in competition with the others, often very vigorous competition. Competition for Resources, sometimes competition for territory, competition for people, competition for the continental shelf, the territorial sea. And it is the balancing of those competing interests, interests and the furtherance of the few shared interests that states have got. That is what international law is all about. International law grew up as the means by which states could resolve certain differences between them. Those differences might be, for example, about competing claims to territory. The British have always been a little bit snooty about competing claims to territory because some centuries ago the Almighty, or if you don't believe in God, some other force filled the area around the country with water, which meant that it was actually quite difficult for there to be serious territorial disputes with our neighbours. But most countries aren't surrounded by water in that way, and there is a surprising number of territorial boundary disputes around the world. International law is there to provide the means by which you determine whether the Yawzu strip, which as you will all know forms the border between Chad and Libya, is part of Chad or part of Libya. It's the means by which you determine whether as the Rio Grande, the river that forms the border between Mexico and the United States, has gradually drifted southwards through a process of accretion over the years. Whether it is the current mid channel in the river that is the boundary between the USA and Mexico, or where the mid channel used to be at the time of the treaty between Mexico and the US which fixed on the river as the boundary. International law is also about the competing claims to exercise state power over things outside your territory. If a group of businessmen in London collaborate to rig the price of a product which is sold in a number of other states, is that conduct which a United States court is entitled to exercise jurisdiction over? And what if the law about collaboration in business practices is different here from the law in the United States? Are you liable to a penalty in the USA for engaging in conduct which is legal in the country where it takes place? And if that applies in antitrust in business matters, what about in relation to freedom of speech? If you make a statement in the press here, which happens to be high treason, carry the death penalty in the imaginary country of Ruritania. Can Ruritania claim jurisdiction to try you for it? I particularly love the leading case on this subject, which is a 19th century one. It was illegal under the law of Germany to make the assertion that Alsace and Lorraine, which Germany had acquired from France in 1871, were French. A patriotic French resident of Alsace crossed the border into France. I think possibly a quantity of wine or stellar Artois might have been involved as well, but he then walked up and down the boundary shouting, vive la France, which could be heard on the German side of the border when he went back into Alsace. Shortly afterwards, he was arrested and put on trial. Now, international or deals with those conflicting claims to jurisdiction by France and German Germany in that case, or by Britain and America in the business cartels case I've just mentioned. Now, that may all seem very remote from you and the lives you lead, but I'll speculate that everyone in this room has at some stage used a commercial airline to fly from one country to another. Anybody here who's never been on a plane, anyone here who's never been on a plane between. Between two countries. You are all therefore beneficiaries of international law because you could not fly from one country to another if it weren't for the international lawyers. Now, admittedly, we also ought at this point to mention the Wright brothers, Lindbergh and various Lerio and various others who worked up how to get the planes up into the air and with slightly less successful success in the initial phase, how to bring them down again in one piece, and the economists who set up airlines and ensured that they remained, for the most part, solvent. But also, you couldn't fly on a British airplane from Britain to the United States if it weren't for the Bermuda agreement between the two countries dating back to the end of the Second World War, which allows the designated airliners of one country to fly in the airspace of another. So that's an example of how international law directly impacts upon each of you as an individual, probably without your even knowing it. And if you ever read the small print on the back of your air ticket or on the website from which you bought your electronic air ticket, you will find that your right to compensation in the event of a disaster is heavy, heavily circumscribed by something called the Warsaw Convention, a multilateral treaty which determines the maximum amount that has to be paid out in the event of the airline being negligent in its treatment of you or of your goods and chattels. Now, even there, however, it's still an interstate system. Those agreements function because they're treaties between states. But in modern times, international law has branched out from that and increasingly confers rights directly upon you, rather than simply making you the beneficiary of rights and obligations between states. The most obvious example of this is the biggest growth area in international law of my lifetime, the law of human rights. Because I'm old, I was born before most countries had ratified the European Convention. On human rights. And I was 11 years old when the first global human rights treaty, the International Covenant, was signed. It didn't enter into force until I was 21. Now that has brought about a revolution in international law. For the first time, each of you is the direct holder of rights under international law. They may be rights of a regional character under, say, the European Control Convention, or of a global character under the Convention Against Torture or the International Covenant on Civil and Political Rights. And this isn't the only area where international law today confers rights directly upon individuals. You find it increasingly in the area of investment protection. And if you're an economist, you may have come across this area and not been entirely happy with what you found, because there are now something like two and a half thousand bilateral investment treaties around the world which mean that if you are careful, there is almost no country in the world in which you cannot structure an investment in such a way that it has the protection of one of those investment treaties. You may have to do it by setting up a company in another state, but you can be pretty certain that in any country in the world you might want to invest in, you can take advantage of an investment investment treaty. And if you do, and if your goods are then expropriated by the government, or if you're unfairly and inequitably treated, you have a right of action in an arbitration tribunal for an enormous sum of money. Now, I have to say that the sums actually awarded are usually a lot smaller than the sums that Wall street law firms think are worth claiming in the first place. But those rights are the rights of of the individual investor, not the rights of the investor state. One of the last cases I did before I went to the court, I chaired an arbitration tribunal in a case by an American investor in Mexico. This was not under a bilateral treaty. It was under the North American Free Trade Agreement. Mexico had imposed a tax on the use of anything other than sugar to sweeten fizzy drinks. If you want to drink Coca Cola, it's only drinkable, it's only palatable. Some of us would question whether it's that at all. But it's only palatable if it's sweetened. You can sweeten it with sugar or you can sweeten it with one of the many artificial sweeteners, for example, corn syrup. The company claimant in this case made corn syrup. Its Mexican business was wiped out by the tax. The tax had been imposed by Mexico in retaliation for US barriers on the import of sugar into the United States. But the three Arbitration tribunals who heard the case all decided that Mexico could not use the right of retaliation against America to justify taking away the rights of not the USA itself, but the individual investor. So that is how international law has moved on in relation to the rights of individuals, but it's also moved on in relation to duties. If you follow the workings of the International Criminal Court, you will see the indictment of President Bashir of the Democratic Republic of Saddam, the ongoing travails over the trial of Mr. Lubanga from the Congo, and in the International Criminal Tribunal for the former Ukraine, Yugoslavia, the trial of Mr. Radovan Karadzic. He's a near neighbour of mine in the Hague. The prison where he's living is only about half a mile from my apartment, and I cycle past it regularly on my way to the beach. When I was elected to the International Court of Justice in 2008, at a dinner party I went to shortly afterwards, I was introduced to the wife of a former British ambassador as Britain's new judge at the International Court of Church. And she smiled at me and said, oh, does that mean you'll be trying Slobodan Milosevic? And I said, no. The professor was still very strong in me. No, my court doesn't have criminal jurisdiction. This attracted no response at all. And he's dead now. That one did appear to go home, actually. But there you have an illustration of how international law not only confers rights on individuals, it also imposes obligations and sometimes criminal penalties. This Tuesday, if you have seen in the newspapers, a court here in London has refused to order the extradition to Serbia of Ou Ganic, the former President of Bosnia Herzegovina, on war crimes charges. That's a case of a national court having to grapple direct directly with a point of international law. And where does this international law come from? Well, very briefly, a lot of it comes from treaties. But those treaties, they may be bilateral ones, like the Bermuda Agreement on Air Services, or they may be multilateral. The Genocide Convention. Virtually every state in the world is a party to the Geneva Conventions on the laws of war. Every state is a party to. But treaties, remember, are matters which states choose to become party to. They don't have to. The criticism of the United States for not becoming a party to the Rio Treaty on climate Change or the Statute of the International Criminal Court rather misses the point. As a political criticism, it may be valid, and as a judge, I'm not going to express an opinion on that. But as a legal criticism, it doesn't have any force at all. No state has to become a party to a treaty if it doesn't wish to do so. Customary law, on the other hand, binds all states. And that's the unwritten law based on what states actually do and their sense that they do this out of an obligation or the assertion of a right. And increasingly today, international law is made institutionally, particularly by the Security Council of the United Nations. It was the Security Council of the UN which set up the Yugoslav War Crimes Tribunal, for example, and made possible the prosecutions both there and in relation to Sierra Leone, the trial of those who are accused of assassinating Rafi Khariri, the Prime Minister of Lebanon, and so on. Now, that's the framework of international law today. Where does the International Court of Justice fit into this? The ICJ is the United nations principal judicial organ. Unlike the pre war Permanent Court of International justice, we are actually one of the parts of the UN system. And I am a UN employee. I am paid by the United Nations. Fortunately, the court consists of 15 judges. And the statute of the Court, the treaty under which we are constituted, sets a very high standard. Article 2 too, says who can be a judge. In these terms, the Court shall be composed of a body of independent judges elected, regardless of their nationality, from among persons of high moral character who possess the qualifications required in their respective countries for appointment to the highest judicial offices or are jurisconsults of recognized competence in international law. No pressure there then. Now, in spite of what it says about regardless of nationality, in fact, the court has to have a number of rules about nationality. You cannot have two judges of the same nationality. That's a statutory requirement. Moreover, the un, which elects the judges, and I'll come to that in a minute, is enjoined to ensure that each of the different regions of the world is represented and each of the different legal systems, the main families of law, like civil law, common law and so on, are represented on the court. And a combination of that and various conventions has produced a court where at the moment the President is from Japan, the Vice President is from Slovakia, and the other judges are from Sierra Leone, Morocco, Somalia, China, Jordan, Mexico, Brazil, France, Germany, New Zealand, the United States, the Russian Federation and Britain. One seat is about to be vacated because the American judge is retiring in a few days time and there is a by election next month in September rather to fill that seat. Now, this produces a fair old diversity regionally and ethnically. I have to say it hasn't produced much diversity on gender grounds. Until a couple of weeks ago, the court was composed entirely of men. The newly Elected Chinese judge Xue Han Chin is a woman. She's only the second woman to be elected to the court. I'm proud to be able to say the first was British. Fifteen years ago, my predecessor, Judge Rosalind Higgins. Also we are likely to have a second woman judge because so far the only candidate nominated for the vacant American seat is a woman judge, jurist Joan Donahue. But the diversity of backgrounds has another very important aspect to it. If you go into a court in this country, people tend to ask, well, did the judge go to a public school? Was he at Oxford or Cambridge? That's far less significant than the fact that whatever university he or she went to, whatever sort of school they went to before they became a judge, they will have spent at least 20 years, years being an advocate or being a solicitor at least. So most of their career for almost every judge in this country will have been spent arguing cases on the other side of the court. So there is a homogeneity in the English judiciary. Go to France and you will find a similar homogeneity. Although they weren't former barristers, they trained separately as judges, but they've been career judges. They started off as judges in the lower grade courts and then they moved up the hierarchy to the Corps de Casation or the Conseil d' Etat or whatever it happens to be. And this is true in the vast majority of states. Judges tend to come from a single professional background. Now, that is not true in the International Court. Some of us were academics before we became judges. Some of those academics also practiced as barristers. But one judge was foreign minister of his country and ambassador to the United Kingdom and to the un. Several judges were senior civil servants. The Japanese president of the court was head of the Foreign Service of Japan. The Slovak vice president was legal adviser to his foreign ministry. So you get in our court a very different set of perspectives, perspectives from the bench about what the issues in a case might be. I might have more experience of what it's like standing on the other side of the courtroom. And I sometimes listen to a counsel, particularly one of the ones I know and think I know just why you're talking about this at such length. It's because you don't want us to think about this other issue that's the one that's troubling you, and you're trying to get me to look at this hand so that I can't see what that one's doing. On the other hand, some of my colleagues would have a far better idea than I would about what goes into the making of a UN Security Council resolution or how a treaty is negotiated? Don't be under any illusions about that treaty making the adoption of Security Council resolutions. They're a political process. They have all the political dealings that go into any form of political process. And sometimes they have some quite entertainment containing mistakes. One European treaty, which was negotiated in English, but which was authentic in French, German, Italian, English. It was only in the taxi on the way to the printers that three of the lawyers who were involved realized that there was no translation into Italian of an entire article in the treaty. They'd just forgotten about it. So what did they do? They made up the Italian translation in the taxi and nobody noticed when they signed the taxi texts the next day. The jurisdiction of our court is quite restricted. And this is again a point that has to be borne in mind. People say, why doesn't the international Court go out and do something about and then whatever is their favourite cause? The answer is that like most courts, we can't pick and choose the cases we hear. We can only hear a case if parties bring it to us, and only states can bring cases to the court. There is no scope for private individuals to do so. There's no scope for companies to do so or international organisations. We hear two types of case, contentious cases, one state against another. And for that there has to be at some point an agreement by both of the states to submit that type of case to our jurisdiction. It may be an agreement given years earlier, which the state has forgotten all about, but there has to be that basis of consent or the court lacks jurisdiction. The result is that sometimes, if you look at International Court of Justice cases, they seem very strange. You look at a case, for example, the case brought by Bosnia against Serbia, and you think, well, why aren't they dealing with the prison camps, the treatment of prisoners of war and issues of that kind. The answer is because the only basis of jurisdiction was the Genocide Convention, which meant that the only thing the court could try was allegations of genocide. It couldn't rule on any other violation of international law that might have occurred. And the result is sometimes something rather like the fable of Cinderella and the ugly sisters trying to squeeze their feet into the glass slipper. You find a party having to squeeze its case into a rather odd, ill fitting framework because that's the only way of bringing it within the jurisdiction of the court. It can also mean that a state's grievances against two of its neighbours, one can be heard by the court and one not. The Democratic Republic of Congo sued both Uganda and Rwanda over a whole variety of claims to do with the fighting in eastern Congo. It won its case against Uganda. The case against Rwanda was dismissed for lack of jurisdiction because there wasn't the same basis of consent in the Rwanda dispute. I noticed, incidentally, I was counsel for Rwanda in that case. It was five years ago and I was rather gratified to be so sent a press cutting from a Ugandan newspaper that said, we've lost our case, but the Rwandans won theirs. It must be because they had such good counsel representing them. I cut it out and thought of sending it to the colleague of mine who had represented Uganda, but in fact it would have been deeply unfair because he had no jurisdictional argument he could make, whereas I could rely on the fact that there was no jurisdictional to title in my case. The other type of case is an advisory opinion. The Court gives advisory opinions periodically at the request of the UN General Assembly. Kosovo is an example of that, or the Security Council, or sometimes specialized agencies like the World Health Organisation, which are empowered to request an advisory opinion from us. Now, advisory opinions, as their name suggests, are advisory only. Judgments, on the other hand, in contentious cases are binding on the parties and there's no appeal. Rather surprisingly, you might think, we have no police force, no bailiffs with which to enforce our judgments. But almost every judgment the Court has ever given has been adhered to by the parties and has been implemented. Sometimes rather late in the day, it has to be said, but they have almost all of them been observed. Now let me turn to contemporary developments for a few minutes. First, just a quick retrospective. 33 years ago, I was a Master's student at Cambridge. I was in the same position you're in. In that year that I studied international law, the International Court of Justice gave no judgments at all. It gave no orders on provisional measures of protection. It gave no rulings of any kind. No cases were filed at the International court in that 12 month period and there was only one case on the Court's books, a dispute between Greece and Turkey. And shortly after I took my exams, I was very grateful that it was shortly afterwards, rather than shortly before the Court decided it didn't have jurisdiction to hear that case. That's the low water mark of the International Court's history. Although my wife sometimes asks me why I couldn't have become a judge when the Court didn't have any work and you just pocketed the salary. But I don't think it would have been a very exciting job to hold. Since then there has been an explosion in international work, in international litigation. The court has 16 cases on its book today. That may not sound very many, but these are cases that include, for example, for example, the dispute between Georgia and Russia over the war of 2008, the Kosovo advisory opinion. We've just given a whole series of boundary and territorial disputes, some of them about land, territory, some about maritime areas, which are of critical importance to the country's concern. And it's not just the International Court of Justice. You've had an explosion as well of human rights litigation. 33 years ago, you could have fitted the. The entire. Every decision of every human rights court into a single volume. Now, the European Court of Human Rights alone will fill a substantial bookcase with its rulings, and the International Committee on Human Rights and the UN is catching up fast. So the practical reality today is that international law is more important than it has been in the past, and it is more often going to bring a state before a court and hold it to account for what it's done. Just to take One comparison, in 1982, Britain and Argentina went to war over the Falkland Islands. This produced no cases of any kind anywhere, except a rather bizarre case about a ship that was sunk miles away from the fighting, which went to the courts in the United States. Seventeen years later, Britain was one of the NATO countries that used force over the Kosovo dispute. That produced a huge case in the European Court of Human Rights, a case against 10 of the NATO states in the International Court of Justice. And its repercussions in the case law are still rolling on today. That's an example of how much more likely it is today that a state's decisions are going to be called into question in a court than was the case only a few years ago. Now, let me, in conclusion, say a little bit about some of the Court's latest cases. Kosovo, to start with. Now, this was an advisory case, so there were no parties, strictly speaking, and the decision we've given isn't binding on anyone. Interestingly, the Court's ruling on the Israeli security wall six years ago was also an advisory opinion. But the importance of the Kosovo proceedings is shown by the number of states that took part. As I say, 43, all told, including, very interestingly, a number of states that have never been anywhere near the court before. China not only submitted written arguments, it took part in the oral argument as well. And that's the first time it's ever done so. The background to the case is, of course, the 1999 fighting in Kosovo, which was brought to an end by Security Council Resolution 1244, which provided for a multinational force to be put into Kosovo, something called kfor, and for an interim administration supervised by a United nations appointed special representative. Then, on 17 February 2008, Kosovo declared independence from Serbia. Now, that declaration was rejected by Serbia. 69 states have recognized Kosovo as an independent country so far, out of a possible 192. That was before we gave our opinion. I haven't checked whether there's been a change in the last week, but there was no agreement in the Security Council either before or after the declaration of independence. And of the permanent members of the Security Council, the veto holders, Britain, the United States and France, spoke in the court in favour of the Kosovo declaration of independence, whereas the Russian Federation and China spoke against it. Of the states that took part in the proceedings, slightly more than half spoke in favor of Kosovo and slightly fewer than half argued that the declaration of independence was unlawful. Now, the court's finding is that the question put to it was quite a narrow one. We weren't asked, is Kosovo a state? We weren't asked, is there a duty to recognize Kosovo? And we weren't asked, is the recognition of Kosovo illegal? We were asked only, is the declaration of independence in accordance with international law? And that's the precise question which the court answered. The answer which it gave has to be seen in the light of three different perspectives on the case. One group of states argued that UDI unilateral declarations of independence are contrary not only to the national law of the state in question, they're prohibited by international law as well. Some of them argued any UDI is prohibited by international law because international law provides a duty of respect for the territorial integrity of states and a unilateral secession from a state violates that territorial integrity. Some of them who took this first approach argued, whatever the position was under general international law, the position in respect respect of Kosovo was that the declaration of independence was illegal because it was prohibited, on their view, by Resolution 1244 and the various regulations adopted under that resolution. The alternative approach was that there was a right to declare independence, the principle of self determination. Now, the right of self determination of peoples is well recognized in international law in a colonial context or in a case of alien occupation or subjugation. But does it apply to the secession of a part of an existing state as opposed to the declaration of independence of a colonial territory or a territory which has some of the characteristics of a colony? This group of states said, yes, it does. In a case where the people of the seceding territory have been subjected to grave human rights violations. And they put it in some cases as a principle of remedial secession. In the last resort, if you're a persecuted minority in a state, you can opt out and create a new state of your own. That's the second approach. The third approach was to say you don't have to go there. The point about international law is that it neither prohibits independent declarations of independence, but nor does it give a right to make them. It just doesn't deal with them. As you go back historically to the declarations of independence of the past, The United States, US colonies from Britain in the 1770s, the various Spanish territories of the Empire in South America, America in the period between 1810 and the mid-1820s, they were neither prohibited by international law, but nor was there a particular right on the part of those territories to declare independence. Now, the Court's answer probably comes closer to that third approach than it does to either of the other two. The Court rejected the argument that general international law prohibits any unilateral declaration of independence. It rejected the argument that Resolution 1244 prohibited a unilateral declaration of independence, though it recognized that a UDI might be prohibited by other rules of international law if, for example, it took a form that was overtly racist, as in the case of the Declaration of Independence by the white settlers in rhodesia in the 1960s, modern day Zimbabwe. But at the same time, the Court didn't go down the road of remedial secession and a right of self determination outside a colonial or alien subjugation context. Instead, it opted to say, in the absence of a rule actually prohibiting this declaration of independence, we have to say the declaration did not violate international law. And that was as far as the Court's answer went. Let me tell you a little bit about how we write those opinions. I can't obviously give you much of a glimpse of ankle under the capacious skirts of discretion there, but there are various different ways in which courts put judgments together. One of the unusual things about the International Court is that we follow none of the general patterns used in various state courts in Britain and in most of the common law English speaking world, when you get to the highest court in the land, each judge is entitled to give their own judgment. And then you have to look at all 5, 7, 9, whatever it happens to be, and work out what the Court's answer is from that. Though nowadays in most countries in the U.S. of course, for example, and in the Supreme Court here, they try to make it Easier by indicating that the majority agrees with Judge X, who has given the leading opinion, leading judgment. But sometimes it's a complete disaster. There's one famous English case I used to lecture about where all seven of the judges sitting in the case decided the case against the government, but for seven completely different and mutually inconsistent reasons. Trying to work out exactly what was decided has been a nightmare for students and a godsend for examiners in law faculties up and down the country for 40 years. The other extreme is the approach taken by the Court of Justice of the European Communities in Luxembourg. There, whether it's a five member court, seven member, nine member or whatever, you will get a single judgment with no indication of one, whether it was unanimous or by majority. And that's often the piece of information you most want to know. There's a famous story in Britain of a headmaster who was convalescing in hospital and he received a letter from the chairman of the Board of Governors that said, the Board of Governors yesterday passed a resolution regretting your illness and wishing you a speedy recovery. He thought, that's very nice, and then he read on. This resolution was passed by four votes to three, with five extensions. In the International Court, we prepare a collective judgment which goes through three rounds of discussion amongst the judges. And this is all in the public domain. We have a meeting sometime after the oral hearings where each of us presents their own views, starting with the most junior judge. I'm delighted to see the election of the my new Chinese colleague because it means I shan't have to go first in the future. In fact, she's going to get off very lightly because the new American judge will be elected before we have to do a case. So she's never going to be the first to speak, but we have a first round where we discuss the matter in principle. We elect a drafting committee. Their draft judgment is then circulated for written comment, and then the revised version of it is discussed, usually over four rather agonizing days, and then a further revised version is discussed at what is known as the second reading. So we do attempt to put together a collective judgment, but each of us is free to write a separate or dissenting opinion as well. And if you look at the Kosovo Judgment, Kosovo opinion, I should say, you'll see that several of my colleagues wrote separate and dissenting opinions. The four minority judges each wrote a dissent, and several of the judges in the majority wrote opinions. In one case, it's twice as long as the Court's overall opinion, setting out why they thought that the opinion didn't go far enough. Now, that's the most eye catching case that I've been involved in the 18 months in which I've been a member of the International Court. I think it's fair to say that opinion is likely to be be important not only in the Kosovo context, but it's also going to be read very carefully in many other parts of the world where there are secessionist issues of one kind or other. Although I hope those who read it will take note of the very careful language in which it's couched and what it doesn't deal with as well as what it does. But the other cases that we've had in recent years have also been of considerable significance. The first case I sat in sounds rather dull, but it was actually fascinating. It's a case between Costa Rica and Nicaragua over the navigation on the River San Juan. Has anybody here ever been a tourist taking a boat up the San Juan? Yes. Beautiful nature reserve. Now, usually when a river is the boundary between two states, the actual boundary is the midway line, either the middle of the river itself or more commonly, the middle of the navigable channel in the river, which means that the river is split. Half of it is within the sovereignty of one state and half the other. The San Juan is an exception. The boundary is on the Costa Rican side. The whole of the river is in Nicaraguan territory. But a treaty of 1856 gives Costa Rican vessels rights of navigation on the river. 1 what did that extend to? That was what this case was all about. And did it include, for example, people who live along the riverbank on the Costa Rican side, fishing in that river? Did it include them using the river as a means of taking their kids to school? Now, these may seem mundane issues, but they are very significant to the people who live in that part of the world. And the dispute between the two countries has been a running sore for nearly 150 years. So we hope that the judgment we gave last year has finally put it to rest. Then the next case was a case brought by Belgium against Senegal in which Belgium was arguing that Senegal had a duty either to put on trial Hissain Habrai, the former dictator of Chad, who is currently living in exile in Senegal, or if they didn't do that, to extradite him to Belgium under Belgium's universal jurisdiction for crimes against humanity. Now, so far, we've only heard a preliminary round of that case. Belgium wanted a court order restraining Senegal from allowing Hussein Habrai to leave the country. Senegal explained that they weren't going to let him leave the country anyway. And therefore the court decided that no order was needed. And then we heard Argentina and Uruguay on allegations of political pollution in the River Uruguay. Anybody here from the River Uruguay area? Well, there is a pulp mill built by a Finnish company on the Uruguayan side, which Argentina argued was not only put up in breach of some treaty which required consultation between the parties, but was also guilty of polluting the river in violation of the substantive provisions of the treaty. We found by quite a large majority that the there was a breach of the duty to consult, but that Argentina had failed to prove that the pulp mill was causing pollution. Now, that's again an interesting illustration of the difficulty created by jurisdiction. The only jurisdictional basis there was the treaty on the river, which meant that we had to focus on pollution that was covered by the treaty itself, which meant pollution of the water, air pollution, the rotten egg smell that was being complained of, or sound pollution wasn't covered by the treaty. And even if it's covered by general international law, it therefore wasn't a matter the court had jurisdiction to pronounce on. That's by way of a thumbnail sketch of what the International Court has been doing and what its impact is on the contemporary developments in international law. But I can't finish this lecture without one note of caution. Lawyers have a tendency to overstate the importance of courts, and judges have a particular tendency to overstate the importance of their own court. Much of what lawyers do is about keeping your client out of court rather than winning your case when you go in there. And much of international law is about the advice given by a Foreign Ministry legal adviser to his political masters, or the advice given by a lawyer in British Petroleum to the chairman of the company about the nature of international legal obligations on clearing up oil spills rather than on the verdicts that courts give. But what I hope I've been able to show you is that international law today affects far more directly the lives that all of you lead than it did in the past. And that the International Court of Justice plays a seminal part in helping to structure that law and providing the last resort, if you like, in the settlement of disputes. Thank you all very much.
- [52:48]
A
Okay, Sir Christopher will now take some questions from the audience. Now, before you ask your question, you will need to wait for the microphone to appear from one of the students stewards who will bring the microphone to you. You'll need to indicate clearly you want to ask a question. And then Sir Christopher will call upon the microphone to be delivered to you. And then you can ask your Questions.
- [53:13]
B
I think the first handicap was in the middle there, the gentleman with the pink shirt who is equidistant from the two microphones. This is what always happens. Hello. My question may stray from rather far into questions about the British constitution, if you may call it that, but I think it's still relevant. And that is, what do you think the possible and probable implications will be of the Deputy Prime Minister Nick Clegg's statement in the House of Commons Deputy Prime Minister's questions a few weeks ago that the war in Iraq was illegal? That was his opinion. And separately, what do you think the implications would be if David Cameron were to give a considered opinion that it was illegal? Well, first of all, I think it's only fair, before I answer that question, to say that in an earlier life, when I was professor here, I wrote quite extensively about Iraq. I also did work for the Attorney General at the time, Lord Goldsmith, about the 2003 conflict. So you're not asking somebody who is a detached outsider about that. Secondly, as an international judge, I think perhaps I better not express a view about the constitutional implications of what a Deputy Prime Minister has said. There are quite a lot of statements by government ministers around the world which may not be wholly in tune with that state's publicly stated position on a particular issue. But obviously, what Deputy Prime Minister Clegg said is an illustration of the fact that there remains a very vital debate about the legality or illegality of the decision to use force in 2003. And that, of course, is a matter currently being considered by the Chilcott Inquiry. What I would ask you to do, if you're interested in that, is do go and have a look at the Security Council, Council resolutions on Iraq, particularly Resolution 678, which is the original authorization force, 687, which is the resolution that set the ceasefire terms in 1991, and then Resolution 1441 in November 2002, which is the resolution that on one view, reactivated the authorisation to use force. If you take it in context, on another view, did the exact opposite and said, you can't use force without a further decision of the Security Council. Now, those are not terribly easy resolutions to read. Normally, with the use of force between states, there is, if you like, a sort of basic touchstone for the man in the street. Is this a case of self defence or is it? The facts might be complicated, but the basic idea is not difficult to grasp. Or humanitarian intervention, if that is lawful. But if you are looking at Iraq or Afghanistan, you have got to look very closely at the Security Council resolutions involved. The last point I would make in relation to that is that of course if you are looking at Iraq and Afghanistan, the first thing you will notice is the resolution are quite different. There is, I think, no dispute about the legality of the conflict in Afghanistan comparable to the debate that has raged about the conflict in Iraq. Over here, three speakers in the same place. But the gentleman standing up was first. Thank you. Your Excellency. In your opinion, does a right to remedial succession or right to independence based on the right to self determination outside.
- [56:57]
A
The context of non self governing territories.
- [57:00]
B
Exist under international law? Well, that's the question we chose not to answer in the Kosovo case. And having chosen not to answer it institutionally last week, you can hardly be surprised if I say I'm not going to tell you now. It is a highly controversial issue. The Canadian Supreme Court also finessed that question when it gave its ruling on self determination in relation to Quebec, though it would have to be said that if there is a right of remedial secession, I don't think you could say that the Quebecois have been the victims of the sort of human rights abuses that people tend to talk about when they talk about remedial secession. It remains a highly disputed topic. And if you look at the opinions that my colleagues gave, those who gave separate or dissenting opinions, you'll find at least one that vigorously argues the case in favor of a right of remedial secession, though I don't think he actually uses that particular phrase. And you'll find two dissents in particular that vigorously argue against it. So I think it's fair to say this remains a highly contentious topic and I'll give it very careful consideration the next time it comes before us. Would you like to keep the microphone over there? But there was somebody down here. Yes, the gentleman in the black shirt about is it black or blue? I can't really see from here. Trouble is I'm too vain to wear my spectacles for my lecture. Hi. So I have sort of a two part question. First. Could you talk a little bit about what happens when two parties come to the International Court of Justice and then after you issue an opinion, they sort of one of the parties decides it's maybe not convenient to do whatever you suggest. And then in the second part, could you talk a little bit about the rationale behind waiting for parties to bring cases to you and whether forward looking you think that the International Court of Justice might at some point be able to go out sort of extend the long arm of the law and sort of assert itself more in international realm in the future. Thank you. Let me answer the second part of your question first. No, I want to give a fully nuanced answer. Definitely no. First of all, that's not something which is within our power to do. It would require not merely an amendment to our statute, which would. Is the equivalent of an amendment to the charter of the un Immensely complex thing to do. It would be a revolution. You could do that only if a vast majority of states decided they were prepared to back a vision of the world that is so different from the one we have today that I think it's really quite difficult to conceive. And it's not something which is on the agenda anywhere at the moment. That's, of course, not particularly surprising. Courts in most countries can't be proactive in that way either. They're dependent upon the litigant bringing a case before them. They can't say, well, we're not too sure about what's happening. The U.S. supreme Court, the British Supreme Court, the others, they don't get together in the morning and think, not too sure about what Clegg's been up to. I think we'll go directly there and we'll rule on it straight away. Then, as far as the first part of your question is concerned, what happens if two states come to us and we give our judgment in a contentious case? It's binding on both parties and one of them decides not to implement it. Now, as I say, the striking thing about the International Court's history is that that hardly ever happens. The very first judgment the court gave, which ordered Albania to pay compensation to Britain for two British warships that sank after they hit mines in the Corfu Channel between the Greek island of Corfu and the Albanian mainland. Albania's government at the time refused to have anything to do with that judgment. But after the change of government in the late 1980s, the dispute was revived. It was settled between the two parties. And the aid package that Britain paid to Albania had a specific component deducted from it to pay off the compensation ordered by the International Court in 1949. More recently, the United States, or to be more precise, one of the states in the US went ahead with the execution of a German national contrary to an order given by the court the same day that the execution should be put on hold until the case was heard on the merits. But interim orders of protection of that kind, they don't have the same sort of success rate anywhere. That final Judgments do also, to set it in perspective, we have a tendency to assume that courts in individual states, their judgments are always implemented. But go along to the royal Courts of Justice and it's worth doing that next week. The courts will still be in session next week. Week. Go along and watch the cases that are going on, a fairly substantial minority of those. The judgments will not be honoured because the defendant who sold you the dodgy car or the plot of land that he neglected to mention had a toxic waste facility underneath it, doesn't have any assets. Maybe because he's transferred all his assets into his wife's name, or he never had any assets in the first place. You try and enforce a judgment for a sum of money against an insolvent or only partially solvent defendant in Britain, in America, anywhere in the world, and you'll find it's very difficult to do. What I'm encouraged by is the fact that if you take for example, the ruling between Chad and Libya over the auzu Strip in 1994, now Libya is much the more powerful of those two states. At the time, it was something of an outsider in the international community. Community and its army was in occupation of 100% of the disputed area, which is comparatively unusual. It implemented the court's judgment and withdrew from the entire Ouzu Strip and handed over control to the Chadian forces with a UN monitoring mission, keeping an eye on what was going on. And that was done within a very short time after the court's judgment was given. So although it's very difficult, difficult in terms of power to actually compel someone to comply, in theory, the state that wins the case can go to the UN Security Council and ask the Council to impose sanctions. That's expressly provided for in the UN Charter. It has never happened. Britain tried it over the Corfew Channel case unsuccessfully. In practice, states generally do comply with the court's rulings. And I can assure you, both on the basis of when I was counsel and now as a judge, they go to very considerable lengths to make sure they don't get an adverse ruling against them. So that's an indication of how important it's considered to be. The lady in the middle there is just holding up her hand. And then one of the other questions over here, perhaps, unless the three of you were all going to ask the same question. Thank you for the speech. It was a huge honor to be present before such a lecture. Are there any comments on opinions about fragmentation of international law, especially taking into account delimitation cases? Because recently a case was put forward before the Tribunal of the United Nations Commission Convention on the Law of the Sea, and delimitation cases so far had been adjudicated by the International Court of Justice. So, any comments on this? Yes, certainly. I suspect you're one of the international lawyers in the audience. If you're asking me a question of that level of technicality, let me just explain what the fragmentation debate is all about. In most countries, not quite all, but in almost all of them, there is one one court which sits at the top of the pyramid and has the final say on everything. That's not the case in international law. It's perfectly possible for different courts or tribunals to hear similar disputes and come to very different answers. In the Mexican sugar arbitrations I was telling you about three arbitration tribunals, we all came to the same conclusion, but we did so for very different reasons. And you do occasionally find open differences between courts. A famous one every article on fragmentation quotes is that in 1995, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia took a radically different view from the view taken by the International Court of Justice 10 years earlier about when a state was responsible responsible for the act of an irregular military force that wasn't part of its own army and was operating in another state. The ICJ had ruled on this about US responsibility for the Contra rebels in Nicaragua, and the Yugoslav tribunal was concerned with Serbia's responsibility for the Bosnian Serb armed forces in the early 1990s. And then in 2 and 20,000, 2007, the International Court of Justice had to revisit that issue in the context of Bosnia, and it said, we got it right in 1986 in Nicaragua. We're not going to follow the ICTY in the Tadich case, and there's no way of compelling the ICTY to follow the ICJ or vice versa. Is that a great problem? No, in my view, it isn't. First of all, you can tell a lot from the fact that that's the example every article gives. There aren't any others. Secondly, if you read the whole of Tadich and the two ICJ decisions, you'll find that most of the time they're singing from the same sheet. It's only on this one issue that they're divided. Quite why the Yugoslav tribunal bothered to rule on that at all is a mystery, because it wasn't actually part of the case before it in any event. Now, as for the two cases that have just gone to the International Tribunal on the Law of the Sea, I'm delighted that they've got Those two cases so far in the last few years, there have been four big rulings on maritime boundaries. Two of them between Romania and Ukraine and Nicaragua and Honduras have come from the International Court of Justice. Two of them have been in arbitrations, Suriname and Guyana and Trinidad and Tobago against Barbados. And now two cases, cases from the Bay of Bengal, have been referred to itlos by the parties there. There's more than enough of this work to keep all these tribunals busy. And if you read the two awards that have been given so far and the two ICJ decisions, it's quite striking how similar the principles are. The actual application to the facts may vary because the facts vary. No two boundaries are the same, but the basic principles that are being applied are the same. And I speak with feeling on that because I was counsel in both the arbitrations and in the Nicaragua Honduras case in the International Court, and there was no obvious difference between the approach taken by any of the three bodies that heard those cases. Now, the gentleman in the green shirt over there and then this gentleman here.
- [68:25]
A
Hi, thanks for the speech. First of all, I want to know about the recent developments.
- [68:32]
B
You said there are about 16 and.
- [68:36]
A
Want to know if Sri Lanka and.
- [68:38]
B
What happened in the last year is.
- [68:41]
A
Part of these developments. And especially I want to know if there has recently anything new or is it just the discussions have stopped and.
- [68:58]
B
Yes, right. Well, thank you for that question. The answer is that the Sri Lanka dispute has not been referred to the International Court of Justice either for an advisory opinion or as a case between two states. So we can't take a position on it if it hasn't been put to us. I read a rather interesting piece on the web a couple of days ago that a Sri Lankan academic had suggested that the Court should be asked to give an advisory opinion on whether the UN Secretary General had acted ultraviolet in setting up this inquiry into allegations of abuse in the north of Sri Lanka. Of course, one of the commentators who had replied to this suggestion pointed out, Sri Lanka can't ask the Court for an advisory opinion on this. Only the UN General assembly can do that. So if there was a groundswell of opinion in Sri Lanka or elsewhere that wanted this matter referred under the advisory jurisdiction, you'd have to take it to the General Assembly. Similarly, there's speculation at the moment about whether a group of states will ask the General assembly when it convenes in September to ask us for an advisory opinion on the blockade of Gaza and the naval flag flotilla incident that happened earlier in the summer. And I think this will have to be the last question, I'm afraid. The gentleman down here in the check shirt. Hello. Thank you very much for coming this evening. It was an honor to have you. I was hoping you could provide some color on how you balance judicial independence versus, you know, being a British subject and perhaps the motivations of diplomatic motivations of the country you come to. And the other judges on the bench as well in the court. Well, yes, a lot of people speculate about that. I must say, in the time I have been a judge, I have never been approached by anyone who has sought to exercise any political influence over me or indeed, any other form of influence. Perhaps, if one looks at it this way, if you look at who voted which way in the Kosovo case, it's true, for example, that I voted that the Declaration of Independence was not contrary to international law, which is the position the British government had taken in argument, but the state that most vigorously argued that we should refuse to answer the question at all was France. Yet the French judge was one of those who voted to give an answer to the question. Several others didn't. The judge from Sierra Leone, which is one of the Kosovo's most forthright supporters in Africa, voted that the Declaration of Independence was illegal and gave a very strong dissenting opinion to that effect. The judges from Mexico and Brazil, both of which are countries that haven't recognized Kosovo and have been very skeptical in Brazil's case, in submissions to the court, very skeptical about the Declaration of Independence, both held, as I did, that the Declaration was, and contrary to international law. Now, obviously, you are influenced by the background you come from, in the sense that my training is in common law. My working language is English. So I read the English language materials more than I would read materials in any other language. And I suppose you could say that that affects my outlook on a case. But do I go to a case thinking, well, independence is one thing, but I owe the British government a lot? No. And I've never come across any other judge in the international community in my court or any of the others that works on that basis. We do have a small safeguard in that respect, and that is that if there is no judge of the nationality of one of the parties in a case before the court, they can nominate someone as an ad hoc judge. And that provides a considerable reassurance that they know that fair play is being done. They've got somebody who will keep an eye on it all. I fear I'm going to have to stop at that point.
- [72:53]
A
I was just about to say, all good things must come to an end, even such a good question answer session as that. You're all invited to join us outside at the wine reception, which is just outside the door there in the downstairs area. And it just draws on us to go conclude the evening by thanking again Sir Christopher Greenwood in usual fashion.