Sir Christopher Greenwood is a judge of the International Court of Justice. Before being elected to that position in 2008, he was a professor of international law at the London School of Economics and a barrister. On January 16, 2013, he spoke in New Delhi at the First Milon Kumar Banerji Lecture on “The Rule of Law in International Society”. Chief Justice of India Altamas Kabir, Judge Dalveer Bhandari of the International Court of Justice, and Sonia Gandhi, the chairperson of the United Progressive Alliance, were present at the occasion. Milon Banerji, who passed away in 2010, was Attorney General of India for two terms between 1992 and 1996 and between 2004 and 2009.
Sir Christopher Greenwood’s legal opinion, “The Legality of Using Force Against Iraq”, had been placed before the United Kingdom’s Select Committee on Foreign Affairs in October 2002, and was used by the government of the United Kingdom to justify the invasion of Iraq.
Edited extracts from the transcript of the lecture:
Sir Christopher Greenwood said that Mr. Milon Banerji had a “long and distinguished commitment to the rule of law” and that it was fitting that it was the subject on which he would speak. Although most of his career was dedicated to rule of law within the State, Sir Greenwood noted that Mr. Banerji was a very accomplished international lawyer and proud of the fact that he had studied International Law at Cambridge. Mr. Banerji graduated under Sir Hersch Lauterpacht and Sir Robert Jennings (both of whom later became Judges at the International Court of Justice).
From left to right: Mr. Gaurab Banerji, Additional Solicitor General and son of Mr. Milon Kumar Banerji, Sir Christopher Greenwood, and Ms. Sonia Gandhi.
Photograph by Aju John.
Dicey, Bingham, and the rule of law
Sir Greenwood said that although rule of law was a concept all lawyers talked about, it was still not a clear one. “Indeed one American writer very skeptically said that this was simply a piece of nonsense that the chattering classes discuss at dinner parties.” He said that it was central to any democracy. “The idea of democracy without the rule of law is I think almost as absurd as the idea of democracy without popular participation.”
Lawyers united by the common law tradition inevitably go back to the writings of Dicey in the late 1900s. For him, the rule of law had three elements — the absolute supremacy of regular law as opposed to the influence of arbitrary power; secondly, the concept of equality before the law for the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and lastly, the idea that the law of the Constitution was a consequence of the rights of individuals, as defined and enforced by the courts.
“Now, that was very much the writings of an English lawyer and an English lawyer of the Victorian era. Today, I think most of us would be sceptical about the third element of Dicey’s definition, that constitutions are simply the assemblage of the judgments of the courts in cases between the benches. We would, I think, today regard a written constitution as having a vastly more important part to play in rule of law.”
“Dicey’s text is also not an easy one to transplant from the context in which he was writing — the constitutional framework of Great Britain, to the international society that we know today. Much of what he wrote was about defending the rights of the individuals against the much more powerful States, although if he thought the Victorian state powerful, what he would think of the States today, I hesitate to think.”
International law in contrast, he said, lacked strong central institutions. “There is no real equivalent in international society of the relationship between the State and citizen. If you look at the resources of the more powerful States — whether you see those resources in economic, military, or political terms — they are vastly greater than those of the central institutions (the United Nations, the Security Council, the General Assembly, and the International Court of Justice), which dispose of nothing like the power that the institutions of States such as India, United States of America, or the United Kingdom [have].”
He also said that even the most unequal societies did not have the disparity seen in international society. “There are 193 States. The largest of those in population terms, India and China, have a population of more than a 100,000 times the size of that of now the smallest member of the United Nation. In terms of territory, the largest State, Russia, is eight-and-a-half million times the size of the territory of the smallest U.N. member, Monaco. If you look at economics, the United States disposes of roughly twenty-five per cent of the world’s Gross Domestic Product and it is arguably a bigger economy than that of the next four largest economies put together. Or if you look at military might, the United States’ military budget… In Victorian times, when Dicey was writing, the British liked to regard themselves as the top military nation, or at least the top naval power, and they worked towards what was known as the Two Power Rule: that the Royal Navy should be greater than the combined strength of next two biggest naval powers, in case Britain had to fight the two of them together.Today, the United States’ defence budget is greater than the defence budgets of the next twenty largest military economies.”
None of these however, meant that the rule of law was not important in international society as it is in a domestic society. “Quite the contrary, I believe that the rule of law is, if anything, even more important to us as citizens of the world than it is to each of us, the citizens of our own country. But it does suggest that Dicey’s traditional text requires some modification if it is to be made to work properly today.”
In his book, The Rule of Law, published a few months before his untimely death, the late Lord Bingham suggested a number of alterations. He suggested, for example, that the accessibility of law should be regarded as an important feature. “Unless the law was published in a form readily accessible to people, and in a language they could understand, you could not have a genuine rule of law. That the law has to be clear, that there have to be limits laid down by the law on the exercise of power, including some form of a doctrine of abuse of rights, that there have to be not merely courts, but courts to which the subjects of the legal system have ready access and courts which apply concepts of due process in the way in which they dealt with disputes that came before them.” All these characteristics, Sir Greenwood said, helped distinguish “rule by law” from “rule of law”.
Making war subject to law
Sir Greenwood remarked that Mr. Banerji had been born a few months after the Kellogg-Briand Pact of 1928, the first serious attempt to make going to war subject to legal control. “That I must suggest is critical because war is the antithesis of the rule of law. It may sometimes happen, it may sometimes be necessary and it is governed by rules of conduct that regulates such matters of treatment of prisoners of war, the prohibition on the mutilation of the wounded or dead, the proper and humane treatment of civilian population but nevertheless war is inherently destructive.” It was the ultimate exercise of power. The idea that the exercise of power was subject to legal restraint and not simply a matter of State policy is an essential breakthrough in establishing the rule of law in international society.
“The principles laid down by that pact were the basis for the conviction at Nuremberg and Tokyo, of the German and Japanese leadership, for the crime of waging aggressive war and they were picked up as principles in Article 2, Paragraph 4 of the Charter of the United Nations, which prohibits the use of force for purposes of territorial acquisition against the sovereignty and independence of States or any other manner inconsistent with principles of the United Nations.
“It is picked up also in Chapter 7 of United Nations Charter which took the first step towards centralising the right to use force. In any society the persons have a right to defend themselves against attack but if one relies solely on the right of self-defence, law and order is fatally undermined. Self-defence has to be a transitional step until the police arrives. What I always remember about the rule of law is being told by an officer who served in the U.N. peacekeeping operations around the globe. When we talked about the rule of law he said “I will tell you what the rule of law means in places where I have worked. It means that when you hear your door being broken down at three o’ clock in the morning, and you telephone the police, you know that they will come, whatever religious, ethnic, or national group you belong to, and wherever in that country you happen to live in. I thought that was a very powerful reminder as we become theoretical about the rule of law about what it actually means on the ground.”
International society however, has no police. “The nearest it comes to that is the power of the Security Council to take action to respond to an unlawful use of force. And indeed, to authorise the use of force itself, in the international interest.”
Trade and international law
Sir Greenwood also noted that the notion of trade as a matter of the sovereign policy of each state had changed dramatically during Mr. Banerji’s lifetime. “With the introduction of the GATT after the Second World War, and later the World Trade Organization, we have — I think — taken an important step, still far from complete but important nonetheless, towards introducing some form of legal regulation. And in the trade area, I think you can see the advantage of that in the way the world has responded to this financial crisis as opposed to the way it responded in 1929-30. There has been no equivalent of the rush to impose tariffs or the rush to impose non-tariff trade barriers.”
Increasing equality in international society
The third enormous difference was in relation to the principle of equality. “The British Empire was, in 1929, at its largest expanse ever, [and] started to contract only a few years later. The French Empire, similarly, had never been larger in 1928.” Sir Greenwood said that the world was a different place today. “The principle of self-determination, first mentioned by Woodrow Wilson in his famous Nineteen Points at the time of the Covenant of the League of Nations, and then picked up in the Charter of the United Nations, meant that within a very short time indeed, the colonial empires simply disappeared.”
More democratic law making
Lastly, he said that the process of law making in international law had undergone remarkable changes. “Now international law, of course, is made in a curious way — there is no Parliament, no legislature the kind we are used to in a domestic setup. Instead, law is developed either by treaties, which states can choose to belong to or not to adhere to if they so wish, and by the […] of customary international law, which I occasionally infuriate my French colleagues by saying that it is international law’s equivalent of the common law — they have never found that analogy terribly attractive.” Today, the process of treaty making is vastly more democratic. “Not only will a multilateral conference have some 190 states turning up, rather than just a handful, it is today inconceivable that you could have something as patronising as the statement that appears in a major international agreement in 1856, that Turkey is admitted to the family of civilised nations. It is difficult to conceive of something quite as absurd being said today; of course, Turkey is a member of the family of civilised nations, but it didn’t need the imprimatur of France, Britain, Austria and the Russian Empire to tell us that.” Further, recent treaty making has involved civil society. “And another tribute to the Covenant of the League of Nations — one of its unsung successes — was that the Covenant provided that there should be no more secret treaties; a treaty would be enforced only if it was registered with the League of Nations. That principle has survived today — a treaty must be registered with the United Nations to be enforceable with the ICJ.” The clarity of treaties has also improved.
“And as for customary international law, the process of making custom can be very opaque indeed. I’m sure Justice Bhandari would agree with me that it certainly seems very opaque when we look at its products in cases before us in the ICJ. But customary law, based on the practice of states over a period of time, supported by the almost undefinable concept of opinio juris, has become more democratic for instance. You can no longer get away and say ‘oh, this is customary international law, because we can find it referred to in the publications on state practice of the United Kingdom and the United States and France’ – I have picked them because they are the first countries to publish their practice. Nowadays, you would have to cast your net a great deal wider than that. And interestingly, in a recent case, the ICJ did look at the case law of a large number of countries as a way of creating the international customary law on sovereign immunity. We also have the quasi-legislative practice of the Security Council of the United Nations and in some circumstances, the United Nations General Assembly.”
The Peace Palace at The Hague, home of the International Court of Justice.
Image above is from Wikimedia Commons.
Sir Greenwood then turned to the traditional enforcement of international law. For Dicey and Lord Bingham, law had to be capable of being interpreted, applied, and enforced by courts to which there was ready access. He noted that sixty-seven States including India had made declarations that gave consent to litigate before the International Court of Justice with another State that had made a similar declaration.
“But that is sixty-seven out of 193, a third of the total. Whereas, before the Second World War, forty-two out of fifty-five states had, at some stage, accepted the compulsory jurisdiction of the Permanent Court of International Justice. Moreover, if you look at the states that were not parties, they were a very important and powerful group. [Of] the five permanent members of the Security Council, only the United Kingdom had a declaration accepting the compulsory jurisdiction of the international court. France and the USA withdrew theirs many years ago. China and Russian Federation never had one.
“If you go back to the time when I was studying for my Master’s Degree in Cambridge, the ICJ was very much in the doldrums. It had only one case before it, the Continental Shelf dispute between Greece and Turkey. And in 1978, it decided that it did not have jurisdiction to hear that case. I am happy to say that it took that decision after I had sat my exams, rather than before that.”
“But if the ICJ was doing nothing in 1977, none of the other courts or tribunals were doing anything either. There had been one inter-state arbitration of heavy importance of that period: the Beagle Channel case between Argentina and Chile, which awarded almost everything to Chile, as a result of which Argentina refused to comply with the award, and the two countries went to the brink of war, only by agreeing to agree to refer the matter to conciliation by His Holiness the Pope, who very kindly offered conciliatory services, only to discover after the offer had been accepted that it had been 140 years since the last Papal Meeting and nobody in the Vatican had any idea how to conduct a mediation of this kind. It was only a mediation of the Pope that put an end to that dispute.
“The idea of international criminal law was simply unknown in 1977. There were no international criminal courts or tribunals. Today the picture could not be more different. In the last decade, the ICJ has been busier than either the International Court or the pre-war Permanent Court could ever be. Justice Bhandari and I are both grateful for the fact that the last year was the first year in five years when no new case was started, which gives us a chance to catch up with some of the ones that are pending.”
Sir Greenwood also said investment treaty arbitration was on the upswing. “The number of cases and their importance seems to double almost every year.”
He also expressed happiness about the fact that in the years that he had been involved with the ICJ, there had been cases and judges from every continent. “And it is of particular pleasure to me that Justice Bhandari has just joined us as the first judge elected from India since Chief Justice Pathak in the early 1990s, and he follows in the footsteps of Sir Benegal Rau and Judge Nagendra Singh, who have all played such an important part in international affairs. Ninety of the states of the world, and nearly half, have been parties to cases before the ICJ, and forty-three states took part in a recent set of advisory proceedings on the declaration of independence by Kosovo. Some critical problems still remain — the principle of voluntary jurisdiction means that the Court may be able to decide a case between two states and yet be completely unable to deal with exactly the same set of facts raised involving a third state. We had a recent example of that in that the Democratic Republic of Congo was able to take Uganda before the Court in relation to the fight in the Great Lakes region, and to win a judgment. But when it tried to sue Rwanda on exactly the same set of facts, it failed on grounds of jurisdiction. Reason: Uganda has accepted the jurisdiction of the Court, Rwanda does not. Now I should add a disclaimer: I was counsel for Rwanda in those proceedings, and whether the DRC would be successful on merits if the case reached that stage, I would be unable to say as that would be impossible to predict. But it is the case undoubtedly that the DRC was able to win the case against Uganda but it didn’t have the chance to do that against another defendant.”
Sir Greenwood also raised the question of how the ICJ can control the power of central institutions in international society — an issue raised by Libya in the Lockerbie case against the United Kingdom and the United States. The case was however settled and the matter never decided. The European Court of Justice recently decided the question of whether European Community institutions could apply sanctions against individuals without the individuals having an opportunity to argue. This has led to the creation of the office of the International Ombudsman to look at individual sanctions. “And in a recent case, the ICJ was faced with a request for an advisory opinion in a matter involving a female member of staff in an international organisation. That member of staff won a significant award […] in front of an administrative tribunal. But the organisation had the right to refer the matter to ICJ for an opinion; the individual did not. The organisation had a clear […] and argued the matter; the individual could only submit documentary arguments through the organisation that is its opponent in the case. Now nearly fifty years ago, the ICJ said that that was nevertheless acceptable, and it could be reconciled with the concept of equality, because the Court made sure that the individual did, in fact, receive a full hearing. When we came to revisit that, I tendered an opinion to the Opinion of the Court, that though reluctantly, I could accept that we should deal with this case, I thought that these types of proceedings would simply be incompatible with the modern concept of equality and the rule of law, and something else had to be fashioned in their place.”
Within States and among States
Sir Greenwood said that the rule of law had developed in even more important affairs — in the relationship between the state and the individual. “That is obviously the heart of the Dicean concept of the rule of law within the State. But the transformation of the last sixty years has been that it has become the all-important feature of the international rule of law. The Universal Declaration of Human Rights, for example, emphasises the rule of law as an important international consideration. If states are allowed to treat their citizens in an appalling and literally atrocious way, that is not reconcilable with the international rule of law any more than it is reconcilable with the rule of law internally. And core human rights, such as freedom from torture, which is the heart of the case about Pinochet, and was recently the subject of the Belgium and Senegal judgments given by the ICJ, freedom from arbitrary detention, guarantees of due process — these are no longer just a matter internal to States.”
Self-determination, he argued, cannot merely be regarded as “one man, one vote, one time”. Self-determination is a continuing right, a right to participation in the democratic process. The European Court of Human Rights, which has over 100,000 cases pending before it, has emphasised on numerous occasions that the rule of law was a European concept as well as a national one. “I would add to that: it is an international concept as well as European. You see this in the Declaration made for the Millennium by all the U.N. member states at the Heads of States and Governments Conference, where they resolved, and I quote, ‘To strengthen respect for the rule of law in international as in national affairs and, in particular, to ensure compliance by Member States with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties’.
He concluded that the rule of law in international society could not be separated from the rule of law within each State. If there is no rule of law within a State, the temptation for that government to feel it and disregard international law whenever it considers that its interests so require, will become irresistible. Conversely, disregard for the rule of law international law internationally will almost invariably undermine the respect for the rule of law within a state. “There is a fallacy which I feel is particularly prevalent in strong democracies with a strong rule of law tradition of their own, to imagine that because they understand the rule of law internally, what their law provides and what they do within their circles, is somehow superior to international law. And if the two come into conflict, it is international law that must yield. But I would suggest to you that a cavalier attitude of that kind towards the rule of law at the international [level] means that in the end, you undermine the rule of law for everyone everywhere, undermine it for India as a country. For me, respect for the rule of law within a state is fundamental for preserving peace, for improving the lot of each and everyone.”
(Aju John is part of the faculty at myLaw.net)