A Smart Leader at the World Court

Oh frabjous day, callooh, callay! We have a swell new president of the International Court of Justice: Dame Rosalyn Higgins (see photo). As are all “dames” (except those in Broadway musicals) she is a Brit. She has been a judge on the 15-member court since 1995 – the first female to occupy a seat on that august bench – and now has been elevated to its presidency for a three-year term.

One of the first cases the court will hear during her leadership is a real lulu: the genocide case brought by Bosnia against Serbia. Plenty of cases involving genocide have been heard in the International Criminal Court(ICC), also based in The Hague. However, those have been charges laid against individuals who perpetrated foul actions in the former Yugoslavia – especially in the four-year-long trial of Slobodan Milosevic. The International Court of Justice (ICJ or “World Court”) on the other hand, only hears cases against states, not individuals or non-state groups. In a Tribunal Report (IWPR'S Tribunal Update No. 439, February 10) Helen Warrell and Janet Anderson describe the particular challenge that this genocide case will pose. In 1994, they note,

“when the court unanimously agreed that Serbia and Montenegro had no grounds to bring a case before the ICJ against eight NATO states accused of implementing a bombing campaign in the former Yugoslavia in 1999 - she was one of a large minority of judges that objected to majority's reasoning.

“According to the judges' objection, the court's line showed a lack of
consistency with former ICJ case law and had potential ‘implications’ for
other pending cases, in particular the upcoming Bosnia case.

“If Serbia is outside the ICJ's jurisdiction to the extent that it could not
bring a case of its own, then Serbian lawyers could also argue that it is
not liable to be sued by Bosnia either.

“Higgins told IWPR that the court strives to keep its prior decision-making
in mind, and ‘certainly [tries] to be consistent.’

It seems, then, that a previous decision of the court has created a pickle for the case involving Bosnia’s charges against Serbia. Of course, one can imagine why the judges dodged that 1994 case, since if they had found the NATO countries guilty in the bombing of Serbia, those nations would have yanked the legitimacy rug out from under their feet pretty damn quickly. (Naturally, we’ll never hear any of the justices admit that this was a consideration in their deliberations.) But Rosalyn Higgins evidently took a gutsy position on that matter, bless her heart. (It is not clear, however, how the court “unanimously” agreed on their verdict when Higgins was “one of a large minority of judges that objected to majority’s reasoning.” I suppose that term “unanimously” was a mistake, so I’ll let it pass.)

The reason why I’m such a fan of Rosalyn Higgins is not her position on the Yugoslav Wars, but rather her position on separatism. I edited a book several years ago (Separatism: Democracy and Disintegration) in which I took a strong position against the legitimacy of secession as a general principle. And in the course of my research I read a 1994 book by Higgins (Problems and Process : International Law and How We Use It) that clarified a lot. It is probably not the predominant view among specialists in international law, but if it were, it would settle quite a few disputes. And since her book was published only shortly before her appointment to the ICJ, it is a good sign that her strong views are at least regarded as credible, if not overwhelmingly convincing.

Separatists always frame their demands in terms of a general principle in the UN Charter requiring that “peoples” have the right to “self-determination.” The questions are, what does “self-determination” mean? And what is "a people"? As de-colonization proceeded, meanings changed. The General Assembly adopted resolutions favoring the right of "peoples" (and not only those subject to colonial rule) to self-determination. However, this did not entail a right to independence or secession but simply meant the right to decide freely. In all cases where the population enjoys representative government, Higgins argues that it has no legal right of secession. (Some legal experts, on the other hand, regard self-determination as justifiable in such instances if the minority nevertheless faces severe human rights violations.)

In any case, the UN has consistently indicated that the principle of self-determination must never disrupt the national unityand territorial integrity of a country. Nevertheless, nationalists have continued to demand separate states in a number of areas, and their claims are widely considered legitimate — including in Canada, where I live.

But who is the “self” that is entitled to “self-determination”? According to Higgins, the ICJ regards a “people,” not as a minority but rather as everyone living within the inherited international boundaries of a given state. Naturally, this definition does not satisfy many separatist groups, but she indicates that it does not jeopardize their rights.

“Of course, all members of distinct minority groups are part of the peoples of the territory. In that sense they too, as individuals, are the holders of the right of self-determination. But minorities as such do not have a right of self-determination. That means, in effect, that they have no right to secession, to independence, or to join with comparable groups in other states...

"Individual members of minorities who consider their human rights to have been violated may bring complaints against states that are party to the Covenant on Civil and Political Rights -- but they may do so only as individuals, not as a class action on behalf of a group."

I was pleased with her point of view, though it does not dispose of all separatist movements. It means that legally no state has to accept the demand of a minority group to secede or form a new state — but it does not forbid that outcome if the existing state agrees to do so. If all the parties agree to separate the states, then the rest of the world will accept that outcome. In effect, this means that Higgins does not specify the circumstances under which secession is a legitimate aspiration. Still, it is a wise move in that direction and, if it were accepted, would resolve many conflicts and prevent civil wars such as those that broke Yugoslavia apart and the ongoing one in Sri Lanka
So let’s celebrate the elevation of Rosalyn Higgins to her new role.