Judge Rosalyn Higgins, the outgoing President of the International Court of Justice (2006-2009) and member of the Court since 1995, recently spoke at the 103rd Annual Meeting of the American Society of International Law (ASIL) and the 50th Anniversary Celebration of the Philip C. Jessup International Law Moot Court Competition. She offered insights on role of the ICJ, changes within the court, and the future of international law. The following summary includes her remarks at both events.
Judge Rosalyn Higgins
The headers are guides to the themes I identified from her talks.
Unchanged Traditions at the ICJ
Dependency on UN Member States
The ICJ, as the official judicial organ on the United Nations, remains dependent on state parties. The ICJ is still the court of the UN, representing the diversity of the world’s legal systems: civil, common and other forms. The court also reflects the world’s diversity in the range of states before it.
The quality of judges remains consistent and thus so does the quality of the decisions. She referred to Bruno Simma’s remarks at the Plenary about how every other international court’s judgments are written by others. At the ICJ, the judges write their own opinions. While the judges value the Registry and law clerks, they do not delegate the task of writing decisions. Delegation of that task would bring the benefit of increasing the number of cases decided by the ICJ each year, but it likely would change the quality of the decisions. If the quality would suffer, states would be less likely to accept and implement the decisions.
Legitimacy and Status
The Court, she said, is on equal footing with the other main organs of the UN. Even recent efforts at UN reform have not required a change in the judiciary. Rather, reform at the ICJ is “optional.”
Transformations at the ICJ
1. Increased Scope of Countries
The scope of countries using the Court has increased. In 2009, all regions of the UN had cases before the Court. Compared to 1960-1980, cases have increasingly been brought by countries in Africa, the Far East, and Eastern Europe.
2. Changing Types of Cases
The types of cases now involve genocide, environmental law, universal jurisdiction, and unilateral declaration of independence. Previously, cases largely involved boundary disputes and maritime disputes.
3. Human Rights as Core Element
Human rights is no longer on the fringes of international law. This embracing of human rights as a core element, she said, reflects a change both in the Court’s composition of judges and within international law.
4. Getting Rid of Docket Backlog
The court also has worked hard to eliminate the backlog. As of October 2008, there was no backlog. Applicants are ensured a timely proceeding after all the written pleadings are submitted.
5. The ICJ Goes Hi-Tech
The ICJ now uses technology to reach a wider audience. Prior to the ICJ’s website, the Court would print hardback copies of decisions and send them to a limited number of people. When the first decision was published to the website, there were 80,000 downloads. The judges were surprised to learn that their decisions were so popular. The website currently receives 160,000 hits per month.
Challenges at the ICJ
Financial Constraints and the “Shoestring Budget” of Justice
She highlighted the financial constraints on the ICJ. The ICJ has a very limited “shoestring budget” of $20 million annually. In comparison, the ICTY receives $175 million, and the ICC receives 100 million euros. As a result, the ICJ judges find it financially difficult to treat visiting judges to dinner, to hold judicial seminars, or to travel to professional events. The small budget has the upside of making the ICJ one of the most efficient entities in the UN, yet it receives less than 1% of the total UN budget.
Proliferation of International Courts and the Threat of Fragmentation of International Law
She said that the ICJ stands aside from the debate. She advised that the best way forward is to have regular communications across the courts, including the exchange of case summaries, seminars on legal topics of interests, and informal discussions to ensure that the various courts are on “the same song sheet.”
Maintaining Quality and International Respect
She cautioned that the ICJ should not lose progress. The quality of the Court depends on UN member states nominating qualified jurists. She asserted that jurists should not be nominated merely because they are women. They must be the best qualified.
She recommended that the ICJ maintain appropriate relations with the media.
The Future of International Law
Judge Rosalyn Higgins
She asserted that international law is predicated on state sovereignty. The issue, she said, is how emergent trends impact more traditional issues and organizations. For example, the World Trade Organization and the International Chamber of Commerce may erode sovereign entitlements.Can governments agree on limits in: (a) form and (b) reality. The more technical the issue, the easier it is for negotiations on state sovereignty. In this new era of human rights, governments claim the right to monitor others but are less inclined to want to be monitored.
She referred to then-Secretary-General Kofi Annan’s three-legged stool analogy. He said the first leg is state sovereignty; the second leg is the problem of the use of force; and the third leg is the problem of getting the UN to close the gap to action. She illustrated the point with the example of the Sudan. The Government of the Sudan contends that a Western plot wants to interfere with the domestic affairs in order to bring about a regime change. Sudan claims the arrest warrant is politically motivated and an abuse of power. She did not give her personal viewpoint. She also said that governments have accused universal jurisdiction as being the “fig leaf” of abusive power by the West. She left the audience to ponder the legality and legitimacy of interventions, such as by NATO in Kosovo and by the United Kingdom in Sierra Leone.
Moreover, Higgins continued, it is easy for small states to continue bad behavior, i.e. Darfur, Burma, and Zimbabwe. Consider that large states generally choose to use force and then ask courts to approve the conduct. This post-facto accountability could save lives, but are we confident in the outcomes? An emergent issue is the silent acceptance by states of other states’ actions, such as U.S. drones over Pakistan.
She concluded that she is not confident of the outcomes of contemporary intellectual and political discourse.
In concluding at the Jessup Celebration dinner, she endorsed President Hisashi Owada and his ability to lead the Court, particularly through future uncertainty. She smiled broadly as she wished everyone well and remarked that she will be thinking of them and the Court as she enjoys her retirement.
About Judge Rosalyn Higgins
Dame Rosalyn Higgins served as ICJ President from 2006-2009 and as a member of the Court since 12 July 1995. She was the first women appointed to the ICJ and, as of April 2009, remains the only woman to have served on the Court since it was created in 1945 and began working in 1946.
Before joining the bench, she served as counsel in four cases before the ICJ: East Timor (Portugal v. Australia); Territorial Dispute (Libyan Arab Jamahiriya/Chad); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom); and the case concerning Gabcíkovo-Nagymaros Project (Hungary/Slovakia).
She earned her B.A. and LL.B. from Girton College, University of Cambridge and her S.J.D. from Yale University. She has received more than 12 honorary doctorates.
She was named Dame Commander of the British Empire in 1995. She is married to the Rt. Hon. Lord Higgins, KBE, DL.
- 2009 ASIL – 103rd Annual Meeting of the American Society of International Law
- Comparison of the ICJ and the ICC
- United Nations – Programs and Agencies
International Court of Justice