Q: In 2009, you delivered the Cleveringa lecture in Leiden. There you spoke about the role of the judge, who often has to decide between perfectly valid alternatives, both very skillfully argued. This is the case especially at the International Court of Justice. It often seems to me that these alternatives are based on norms of equal value. In a way, judges are then faced with what could be seen as a moral dilemma translated into the language of international law.
A: The norms are constant norms, e.g. sharing of resources, respect for human dignity and so on… or, to say something more recognizable as a legal norm in the traditional sense, the prohibition against the use of force. Then you have the permission of the use of force under self-defense. But the role of the judge is to see which of these norms applies in the context of the particular case, or has priority in the context of the particular case.
Q: But you don’t feel, sitting on the bench, that both opposing views are very skillfully and very convincingly argued, and that in the end the ultimate decision becomes very difficult to make. It is not always obvious that there is one correct view. Or is there always agreement among the judges?
A: There is rarely total agreement. I believe everyone was kind enough to make a present to me on the last case I presided in, between Romania and the Ukraine, in which we had an absolutely unanimous judgment, including the two ad hoc judges. That was a splendid achievement, and much appreciated by me. But that’s not the norm. Normally, judges do have different views, and one has to find the majority view without it ever coming down to the lowest common denominator. When you’re President that’s the trick: to try and get a decent majority, but not just by taking away everything that’s a bit controversial and just having inanities that can be agreed upon by all. But I must say, in just about every case the answers have to me, and presumably therefore to my colleagues, been apparent. The case will be skillfully argued, there are arguments to make for both sides, but taken in the round or in the context, or for various reasons, one is to be preferred to the other. Of course, the legality of the threat or use of nuclear weapons, which was only my second case, that was extremely hard. Not to get a majority, which we failed to do – it was decided on the casting vote – but actually to know what was legally speaking the preferred decision.
Q: Often the Court is praised for representing various views from various cultural and legal traditions. In what sense does that play a role here in reaching this one ultimate decision?
A: I think it does play a role, because the Court is elected as the Court of the United Nations and not the Court of the economically advanced countries or any other group. First of all, it makes a difference in that our decision-making is absolutely inclusive. There’s hardly a step in the process of forming a judgment or an opinion in which the whole Court is not included. Of course, it would be easier or faster to have an Advocate-General, and the judges would just say “yes, that seems right.” But that’s not for us. It may be fine for a European Court, but it’s not for us. We must be geographically inclusive. And I think all of the judges, including the judges from the economically advanced countries, are very sensitive to the legitimacy of many of the arguments being put forward from other parts of the world.
Q: A somewhat related question: some judges are very outspoken about their adherence to a particular scholarly tradition, such as the New Haven School, or legal positivism. Do you think there should also be a representation in that sense?
A: That’s a very good question, because at the moment the fiction is that we represent different legal systems. That’s what’s in the Statute. And that’s true to an extent. But that comes about via geographic distribution. As you know, there are seats reserved for Europe, for Europe and other – Canada, New Zealand and Australia are “other” in this scheme of things – and for South America, Asia and so forth. So through that way, we actually get the different legal systems. That’s manageable and I think works rather well. Of course, there are detailed things one could debate… whether Europe is overrepresented. These sorts of things could be debated. But how you would arrive at a system where you had two positivists, two policy people… I just don’t think it could conceivably be done.
Q: I asked that question because I noticed that judges representing other parts of the world often enjoyed their legal education in the United Kingdom and the United States. In that way, some of the schools might have influenced their thinking.
A: Well, a judge like Judge Koroma was educated in Russia. But he always thought for himself. We’re all influenced to a degree by life’s experience – that’s the existentialist view and I think that’s right – but also by our own intellectual convictions.
Q: Of course, there is another way in which people can be distinguished. That’s by being either man or woman… You are the first female judge and President of the International Court. You are a role figure for international lawyers, especially women lawyers. Do you think that is correct? More and more women are now making a career in international law, and I think you are very important in that development.
A: Thank you for that comment. I do know that a lot of young women have used this famous phrase “role model”, when they come up to me after lectures or something of that sort. And I did have the great honor to be the first woman on the Court. And throughout my fourteen years I remained the only woman. But at the same time I must in all honesty make it clear that, for me, quality and ability is everything. I don’t approve of those systems that, for the appointment of the bench, have quota for women. I think with quotas you do not end up with the very best people.. You do need to make sure that you’re voting on really excellent candidates, and there are excellent women candidates out there. I think we very happily achieved that in the present bench of the ICJ, where the two present women judges are top flight people. Now I can understand that if you have people of absolutely comparable ability you might then want to take the gender factor also into account. But, I have said this publicly many times: don’t vote for a woman just because she’s a woman! It’s well-meaning, but not good for the institution concerned.
Q: This might be a very tricky question… You don’t think that men and women think differently?
A: No, I absolutely reject that idea. Men sometimes speak about women having more intuition and so forth. I don’t accept that. I think we’re either smart lawyers or not smart lawyers; we either know a lot or we don’t know a lot. Gender has nothing to do with it. In the international criminal field some of the women judges say it really does make a difference whether you’re a woman judge when you’re looking at issues of rape and so forth. I cannot stand in their shoes, and disagree with them. But at the same time I like to think that both sexes are equally appalled at such things. And coming back to the work of the International Court of Justice, I cannot believe that anything I’ve said about where I think a border runs, or a use of force has occurred, or a resource belongs to one State or the other, has anything to do with gender. Nothing!
Q: That’s a very clear answer. But what about having a woman judge in the team... Does that make a difference for the deliberations, the way things are done…
A: No. It really really doesn’t. I have just felt one of the bench. And everyone is very nice, and everyone is pleasant with the entirety of the bench and I’m sure it’s the same for the women judges now. The only difference has to be outside the judges robing room, where they had a ladies toilet put in when I arrived! I think no other changes were made.
Q: Of course, the Court settles international legal disputes between States. But I have often had the impression that, in a way, the Court also has a broader role in educating politicians in how to behave ethically. It even extends beyond politicians. Maybe the whole world is being shown…
A: That’s a very difficult one, and there are I think legitimate different views on that. Some judges think we are there to resolve the particular dispute, and that we should address the issues in that dispute and only that – and in principle I am one of those judges, which may be surprising because I think of myself as a liberal judge. Some of my colleagues believe that the Court should take the opportunity to speak more largely, and address important points of the law the Court has not had an occasion to pronounce upon. I know judge Kooijmans – for whom I have the greatest admiration – took that view in a particular case. Those are the two different views. What is clear, is that in the Genocide case, the Bosnia-Serbia case, the Court chose, and deliberately, to go through every Article of the Genocide Convention, to say what the law required. We felt the issue was so important, and we hoped it would not come back to the Court giving us further chances, that we should lay everything out, even beyond the clauses we had to pronounce upon.
Q; That case is a good example, because that judgment was widely publicized in the region, and it had a much wider impact than just in settling the dispute between two States. I remember there were all sorts of protests in front of the Peace Palace gates, also in support of the judgment.
The International Court of Justice and the Peace Palace Library
Q: it is interesting to see how much – or how little – scholarly work is being cited in the Court’s judgments. How many footnotes there are, references to books, articles, etc. What would you say is appropriate for a judgment? No references at all would give little credit to scholarly contributions, but of course a judgment should not read like an academic publication.
A: There are several questions within that question. I think an opinion is absolutely not a scholarly article. And in my view, if you’re writing a separate opinion, you should say what is the point you disagree on and why. You shouldn’t then go on and write the judgment you would have written. I think that’s incorrect. Now the Court has traditionally cited its own jurisprudence, but I think in recent years it’s been more outward looking, referring to more and more things. There are very very few academic writings cited in the judgment itself – contrary to opinions, where there’s more freedom. Of course the big exception is Rosenne, whose work is regarded as being in a class of its own. Otherwise, I don’t think the Court judgments do. But they do begin to cite judgments of other Courts or UN bodies.
Q: What has been the role of the Peace Palace Library for you personally, or for the bench as a whole?
A: I’ll answer those questions separately. I think its role for me personally has been extremely typical. I was never fortunate enough to come to The Hague and be a student at the Hague Academy of International Law, so I did not get my entrée to the Library that way. It all came for me a little bit later, when I was starting to prepare my first publications. Of course, I was overwhelmed with what there was in the Peace Palace Library… and the other really important thing is the friendliness... You come in to what to a young academic is daunting, but the helpfulness of the staff immediately sets you at your ease. In all of my books I have from time to time come for some help and it’s always been forthcoming. When you become a judge, things change a little bit, in that the focus of your bibliothèque life becomes more the judge’s library. Let me explain: there is a special library in the Peace Palace reserved for the judges. It has very many of the essential materials on international law there, but what is really special is that there is drawn up a list of primary and secondary materials that the judge will need for a forthcoming case. And then those are found and come over from the Peace Palace Library. And I can only say, from the point of view of a judge, this seems to me to work marvelously well and to the benefit of the bench. I am particularly thinking of East-European or Latin American source materials in the original language, which is very important for the judges for whom those are first languages. Somehow those materials are always in the Peace Palace Library. The Registrar can of course then embark upon the translations into the two official languages of the Court. It really is a splendid service.
Q: The Peace Palace Library also has a large collection of old prints, about 10,000 volumes, published before 1850. It represents the history of international law. From time to time the Peace Palace Library gets requests from the Court for some old prints. The work of Grotius comes to mind. Is it important to still study all these old authors? Did you often use them as a reference when you were a judge?
A: It is important, although I think decisions in the form of judgments or advisory opinions have to be given in the here and now. It is important to understand how something developed, the alternatives that were looked at, and the context in which those alternatives were addressed by the great masters of international law. I think most people think so. They have absolutely not lost their place. Of course – I am going on outside of your questions – what is wonderful about the library is the rapid and marvelous way in which the Peace Palace Library has adapted. It has been a leader in information technology and computerization, but at the same time it remains set in a milieu of books. It is so important for young people not to think all the answers are in the computer, but actually to lay their hands on a book, and to see where the footnote in the book takes them. All of us have to make sure that’s not lost.
Q: That’s an interesting point, because we often see people spending the entire day in the Peace Palace Library, without touching a single book. They sit behind one of our terminals and browse and sometimes download articles from our extensive collection of databases and other e-resources. I don’t know if you can have an opinion about this…
A: Well, I do have an opinion. You must do both now. I do know how much easier it is now to research through the computer. And I think, unless you are very exceptional, my generation is not up to speed compared with the younger generation. Of course, the judges will have varying abilities on the computer. But I do worry about the feel and love for real books being lost, and whatever the Peace Palace Library can do to promote that is very important.
Q: But you don’t think being an academic has become easier and easier now that in order to find even the most obscure article, all you have to do is Google it.
A: It must be. I must say I still need a little help in always finding these resources. What my younger colleagues find in half a second takes half a day for me. And in that sense, it is easier. All of the articles I wrote involved going into the Library, spending hours in the stacks, chasing things up...
Q: But then it is of course interesting that the actual quality of thinking has not really improved.
A: That’s it. There’s a danger maybe that seeing it on the screen you accept things as the truth… I don’t know. I am not running it down; I think it is simply marvelous. But maybe just being in the stacks, thinking, and chasing after another book gives you that little time to think a bit more.
Q: So you clearly think traditional libraries have a future?
A: Yes, but the traditional libraries must of course also have the computer access. They won’t have a future otherwise. They must be able to do both.
Q: The Peace Palace Library spends a lot of resources on developing a new website, and on their large collection of legal databases. On this website, there will also be a section on international law news. We get our international law news from all over the world: court reports, important books, resolutions… Do you think that’ll be interesting?
A: I do, but don’t forget the books! Another thing I would like to mention is that the Library’s access to or holding of materials that can loosely be described as travaux préparatoires is really impressive and important. Take something like the Genocide Convention, for example. As we know, it wasn’t all put together until the book by Philippa Webb and her young colleague Hirad Abtahi was published. But the materials were there, and for the law of treaties and for many many other things the Peace Palace Library has the travaux préparatoires. And the Court has made great use of that.
Interview with Prof. Rosalyn Higgins by Ingrid Kost & Otto Spijkers, 1 December 2011