Plenary address: a just world under law.

Author:Higgins, Rosalyn
Position:Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law
 
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The program was introduced at 5:30 p.m., Friday, March 31, by Dean Frederick M. Lawrence of the George Washington University Law School. Judge Thomas Buergenthal of the International Court of Justice introduced the plenary speaker, Judge Rosalyn Higgins, President of the International Court of Justice.

INTRODUCTION BY THOMAS BUERGENTHAL

When I was first asked to introduce today's Plenary Speaker, I thought that I would merely say "I give you Judge Rosalyn Higgins, the President of the International Court of Justice." She is, after all, so well known to all of us here.

But such a non-introduction would have deprived us of the opportunity to highlight the brilliant career of an eminent international law teacher, litigator, and judge, a person who over the years has gained the respect, admiration, and affection of students and colleagues, and even litigation adversaries, around the world.

It is hard to know where to begin describing the career of President Higgins. Educated at Cambridge, where she graduated with first-class honors, and at Yale, where she earned her J.S.D. degree, she served as professor of international law at the University of London from 1981 until 1995, and prior thereto at the University of Kent.

Her substantial scholarly output is in itself impressive, but what is more, her books and articles reflect a truly creative legal mind, a command of a wide range of international law subjects, and a scholar unafraid to tackle difficult problems.

While writing and teaching, Judge Higgins also developed a large international law practice as counsel and arbitrator before international courts and arbitral tribunals, including as counsel in important cases before the ICJ, in between these various activities, she found time to serve for the ten years between 1985 and 1995 as a member of the UN Human Rights Committee and as its rapporteur for new cases, a critical function in that body. She was first elected to the ICJ in 1995 and re-elected in 2000. In February of this year, my colleagues and I elected her President of the Court. I cannot think of any judge who has been as qualified to assume the Presidency of the Court as Judge Higgins.

Rosalyn Higgins has been a very active member of the American Society of International Law. In fact, it would seem that we adopted her early in her career and she us. Over the years, the Society has benefited from her time and talent in a variety of ways. She has been part of us probably more than any other non-American member, and there are few American members who have been as involved in the Society's work as Rosalyn Higgins. Our appreciation for her contribution to the work of the Society and to international law is reflected in the many honors we have bestowed on her. For example, two of her books received the Society's Certificates of Merit, one in 1971 and the other in 1995. She was named Honorary Member of the Society in 1992, Honorary Vice President in 1993; she was awarded the Manley O. Hudson Medal in 1998; and she became an Honorary Editor of the Journal in 2004. One cannot really do much better than that.

I am sure I speak for all of us when I tell you, Rosalyn, that we are grateful for your many contributions to this Society, and that, as international lawyers, we are delighted with your elevation to the Presidency of the ICJ. It is therefore most appropriate that on this 100th Anniversary of the ASIL and the 60th Anniversary of the ICJ, this year's Plenary Address should be delivered by you.

I give you the President of the ICJ.

KEYNOTE ADDRESS BY ROSALYN HIGGINS *

I want to begin by saying how deeply I appreciate being asked to give this address. It is an honor for me and a compliment from a great learned society to the International Court.

"A Just WORLD UNDER LAW"

The title of this year's one hundredth anniversary gathering is just the sort that a designated speaker likes to see: something uplifting, but so indeterminate as to allow one to speak on whatsoever one chooses. Of course "under" law carries its own overtones (I can see here a good exam question: "what is the difference between a world under law and a world based on law?" Discuss.). "Under" law suggests a judicial system, hierarchies, enforcement. Realism suggests we are very far from that sort of world.

I don't feel much more certain about the notion of "a just world." When the notion of justice is decoupled from legal process, then, of course, the concept of "justice" becomes extremely subjective. Beyond due process, what is "just" to one person is totally unfair to another--and so it is with states. To one state it is unjust that they are confined by boundaries set by old colonial treaties; to another state, justice requires that all states in the region share the burdens of the colonial inheritance, including uti possidetis treaty lines. We saw such different perceptions of justice in Cameroon v. Nigeria. Let me take another example: is the question of islands belonging to A, situated on what is otherwise the continental shelf of B, to be answered by reference to "justice"? Is contiguity a more "just" concept that "title"? Reference to justice did not carry us far in resolving the bitter disputes between Qatar and Bahrain (which was of this character), nor will it assist in helping Turkey and Greece to resolve this conundrum in the Aegean Sea. Or, if one looks at controversies concerning Gibraltar, or to the Falklands, does "justice" tell us whether the expressed preference of the inhabitants would prevail over claims to title, or vice versa? Is it or is it not "just" to allow--indeed, even require--humanitarian intervention in the face of gross human rights abuses? What does "justice" have to say about the verification of those abuses? When? By whom?

What does "justice" tell us about line drawing, when the perceived demands of security apparently require limitations to be placed upon rights? Which rights may be qualified? And to what extent, and with what checks and balances? And which may not?

I could go on at some length, but I think my point is clear. In all the problem solving that is needed today, I do not find that reference to "just" is a very clear indication as to difficult choices to be made. And if one views justice not as the tool, but as the objective--a just world as nirvana--then I doubt I am going to recognize it when I see it.

Let me take another example: the International Court is in the middle of hearings in a case of great complexity--Bosnia and Herzogovina v. Serbia and Montenegro. The Court is hearing the merits of a genocide claim, as well as issues of entitlement to access to the Court which, because of the admission of Serbia and Montenegro as a new state member of the United Nations in 2000, have arisen subsequent to the favorable jurisdiction decision. What is perceived as "justice" by the one side is viewed by the other as a refusal to commence the process of reconciliation...

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