LSE Summer School 2010: Contemporary Developments in International Law and the Role of the International Court of Justice

Speaker: Sir Christopher Greenwood (Judge, International Court of Justice)
Date: July 29, 2010
Host: Andrew Murray (Director, LSE Law Summer School)

Episode Overview

This lecture, delivered by Sir Christopher Greenwood, discusses the evolution of international law with a focus on the increasing importance of human rights and individual rights. Sir Christopher provides an insider’s perspective on the workings of the International Court of Justice (ICJ), recent landmark cases—especially the advisory opinion on Kosovo’s declaration of independence—and the broader significance of the ICJ’s judgments. The episode wraps up with a lively Q&A covering legal, constitutional, and philosophical questions concerning international law.

Key Discussion Points and Insights

1. Introduction and Speaker Background

[00:00 - 04:29]

• Host Andrew Murray introduces Sir Christopher Greenwood, highlighting his experience as a leading barrister, academic, and current ICJ Judge.
• Sir Christopher’s career includes high-profile cases (e.g., Kuwait Airways, Banković, Pinochet) and editorship of key international law publications.
• The significance of LSE’s tradition of public lectures as an essential part of the “LSE experience.”

2. Nature of International Law and the ICJ

[04:29 - 13:00]

• Defining International Law:
  • Sir Christopher dispels common misconceptions, asserting, “international law is not the same as the law of other countries.”
    (B, 07:08)
  • National legal systems vary widely; even within the UK, English, Scottish, and Northern Irish law differ.
• The International Community:
  • International law emerges from the “interaction of sovereign states,” balancing competition and cooperation.
  • “International law grew up as the means by which states could resolve certain differences between them.”
    (B, 09:10)
• Examples of International Law in Daily Life:
  • Rights to air travel exist due to treaties (e.g., Bermuda Agreement), and international conventions regulate passenger compensation.

3. Individuals and International Law

[13:00 - 20:00]

• Shift from States to Individuals:
  • Recent decades have seen “a revolution in international law,” as individuals gain direct rights under treaties—particularly in human rights and investment protection. (B, 14:55)
  • Example: Bilateral investment treaties (BITs) and NAFTA allow private investors to claim against states.
  • The rise of international criminal accountability: “International law not only confers rights on individuals, it also imposes obligations and sometimes criminal penalties.”
    (B, 18:15)
• Growth in Institutions:
  • Not only treaties but also UN Security Council resolutions and customary law form sources of international law.

4. Inside the International Court of Justice

[20:00 - 32:00]

• Composition and Election of Judges:

  • The ICJ comprises 15 judges from diverse backgrounds and legal traditions.
  • Despite Article 2’s “regardless of nationality,” practical rules ensure regional and legal family representation.
  • “...the Court shall be composed of a body of independent judges elected, regardless of their nationality, from among persons of high moral character…”
    (B quoting statute, 21:47)
  • At the time, the court had low gender diversity (only the second female judge recently appointed).

• Varied Experience on the Bench:

  • Judges include academics, former diplomats, and senior civil servants.
  • This diversity enriches the court’s deliberations and reflects the global nature of cases.

• Jurisdiction Restrictions:

  • States, not individuals or companies, bring cases to the ICJ; court can only adjudicate where both parties consent.
  • Lead to “cases squeezed into ill-fitting frameworks”—as with the Bosnia v. Serbia genocide case.

5. Recent Developments: Advisory Opinion on Kosovo’s Independence

[32:00 - 44:00]

• Background:
  • Kosovo’s 2008 declaration of independence and the subsequent advisory opinion requested by the UN General Assembly.
  • 43 states participated, including first-time appearances by China.
• The Core Question:
  • The Court was asked if the declaration itself was legal under international law, not whether Kosovo is a state or whether recognition is required.
• Key Legal Arguments:
  • Three approaches presented:
    1. Prohibitionist: UDIs always violate international law due to the principle of territorial integrity.
    2. Remedial Secession: There exists a right of independence in cases of human rights abuses (self-determination).
    3. Legal Neutrality: International law neither prohibits nor grants a right to UDI unless specifically stated.
  • Court’s answer most closely aligned with the third (“legal neutrality”), stating the declaration did not violate international law, but did not go further.
    • “...in the absence of a rule actually prohibiting this declaration of independence, we have to say the declaration did not violate international law.”
      (B, 43:00)
  • Several judges wrote detailed and divergent separate opinions/dissents.

6. How ICJ Opinions Are Drafted

[44:00 - 47:00]

• The process is collective but allows for dissent:
  • Three rounds of discussion, starting with the most junior judge.
  • Drafting committee, written comments, then revision.
  • Judges are free to publish separate or dissenting opinions.
• Follows neither the common law tradition (separate judgments) nor the European Court of Justice approach (single, anonymous judgment).

7. Other Recent Cases

[47:00 - 52:00]

• Costa Rica v. Nicaragua - River San Juan Navigation:
  • Clarifying historic treaty rights; practical impact for local populations.
• Belgium v. Senegal - Universal Jurisdiction:
  • Duty of Senegal to try or extradite the ex-Chadian dictator Hissène Habré.
• Argentina v. Uruguay - River Uruguay Pollution:
  • ICJ found a breach of consultation duties, but no proven pollution (and jurisdictional constraints limited the Court’s inquiry).
• General Trends:
  • Dramatic increase in international litigation and importance of judicial oversight.
  • E.g., The Kosovo and Georgia-Russia cases, and growth in human rights cases, demonstrating the increasing exposure of state actions to international legal scrutiny.

8. Cautions and Reflections

[52:00]

• “Lawyers have a tendency to overstate the importance of courts, and judges have a particular tendency to overstate the importance of their own court.” (B, 51:50)
• Much of international law is about advice and negotiation, with courts as the “last resort.”
• Nonetheless, the ICJ helps “structure that law and provide the last resort...in the settlement of disputes.” (B, 52:20)

Notable Quotes and Memorable Moments

• On the misconception of international law:
  “To many people, what international law means is…very high fees and very good travel, which is why it’s always been an extremely popular career.”
  (B, 05:20)

• On treaties:
  “Treaties, remember, are matters which states choose to become party to. They don’t have to.”
  (B, 19:55)

• On the rise of individual rights:
  “For the first time, each of you is the direct holder of rights under international law...”
  (B, 14:55)

• On the Kosovo opinion:
  “We decided by 10 votes to four, that Kosovo’s declaration of independence did not violate international law…I was one of the ten rather than one of the dissenting minority.”
  (B, 04:45)

• On judicial methodology at the ICJ:
  “We have a meeting sometime after the oral hearings where each of us presents their own views, starting with the most junior judge...We attempt to put together a collective judgment, but each of us is free to write a separate or dissenting opinion as well.”
  (B, 44:45)

Q&A Highlights

1. Legality of the Iraq War and Political Statements

[53:12 - 56:57]

• Question about Deputy PM Nick Clegg’s statement that the Iraq war was “illegal” and implications if PM Cameron stated the same.
• Sir Christopher’s answer:
  • He has professional background advising on Iraq.
  • As judge, declines to opine on UK constitutional implications.
  • Legality turns on Security Council resolutions—different in Afghanistan versus Iraq.
  • “The debate about the legality or illegality of the decision to use force in 2003...is a matter currently being considered by the Chilcott Inquiry.” (B, 54:00)

2. Remedial Secession and Self-Determination

[56:57 - 57:42]

• Does a right to remedial secession for oppressed populations exist?
• “That’s the question we chose not to answer in the Kosovo case…It remains a highly disputed topic.” (B, 57:00)

3. Enforcement of ICJ Judgments

[57:43 - 60:38]

• What if a party ignores an ICJ judgment? Could the ICJ become more proactive?
• Firm “No”—Court requires state consent; no “long arm of the law.”
• States usually comply, even powerful ones (e.g., Libya in the Aouzou Strip case).
• UN Security Council enforcement mechanism exists but has never been used.

4. Fragmentation of International Law

[61:40 - 64:30]

• Does having multiple international courts/tribunals cause fragmentation?
• Rarely, and when it does, it is not a major problem, as basic principles are often consistent across bodies.
• “There’s more than enough of this work to keep all these tribunals busy...the basic principles that are being applied are the same.” (B, 63:10)

5. Sri Lanka and Current Events

[68:25 - 70:00]

• Has the ICJ been involved in Sri Lankan issues?
• No cases or advisory opinions have been requested; only the UNGA can request an advisory opinion.
• “We can’t take a position on it if it hasn’t been put to us.” (B, 68:58)

6. Judicial Independence vs. National Identity

[70:01 - 72:53]

• Are judges influenced by national loyalties/diplomatic pressures?
• Sir Christopher:
  • Never experienced attempt at political influence.
  • Judges frequently rule contrary to their own state’s preferred positions.
  • System of ad hoc judges provides reassurance of fairness.
  • “Do I go to a case thinking, well, independence is one thing, but I owe the British government a lot? No.” (B, 72:10)

Important Timestamps

| Time | Segment | |-----------|----------------------------------------------------------------| | 00:00 | Introduction by Andrew Murray | | 04:29 | Sir Christopher Greenwood’s opening and the Kosovo case | | 13:00 | Emergence of individual rights in international law | | 21:47 | Description of ICJ judge composition and appointment | | 32:00 | Recent advisory opinion: Kosovo’s declaration of independence | | 44:45 | How ICJ opinions are written | | 47:00 | Recent ICJ cases: Costa Rica v. Nicaragua, Belgium v. Senegal, Argentina v. Uruguay | | 52:48 | Q&A begins | | 53:12 | Legality of Iraq war question | | 56:57 | Remedial secession/self-determination question | | 57:43 | ICJ judgment enforcement | | 61:40 | Fragmentation of international law | | 68:25 | Sri Lanka and current disputes | | 70:01 | Judicial independence & nationality at the ICJ | | 72:53 | Closing remarks |

Tone and Style

Sir Christopher’s delivery is warm, accessible, and droll—peppered with anecdotes, gentle self-deprecation, and references designed to draw in both legal specialists and lay audience members. He frames complex legal ideas through relatable examples and historical context, inviting both respect for the discipline and awareness of its practical limitations.

Summary Conclusion

This episode is a comprehensive, insightful exploration of the contemporary landscape of international law as seen from the vantage point of the ICJ. Sir Christopher Greenwood lays out the importance of both traditional state-to-state law and the dynamic new spaces where individuals are direct actors. His discussion of high-impact cases, notably the Kosovo opinion, underscores both the potential and the boundaries of what international courts can achieve. The Q&A grounds the discussion in real-world legal controversies and philosophical issues, reinforcing the practical importance—and enduring complexity—of international justice.