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Rosalyn Higgins, Problems and Process: International Law and How We Use It,
(1995, Clarendon Press) ISBN 0-19-876410-3(267 + xxvii; 15.99 sterling, paperback)
Reviewed by Dr Geoff Gilbert*
Senior Lecturer in Law, Department of Law, University of Essex
Copyright © 1995 Dr Geoff Gilbert.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press
Ltd.
*I would like to thank the Book Review Editor, Jane Wright, for encouraging me with the daunting task of reviewing this book.
Rosalyn Higgins opens her Preface by stating that it is the greatest possible honour for an international lawyer to be invited by the Curatorium of the Hague Academy to give the General Course in International Law. She then goes on to point out that it is hard to imagine the magnitude or difficulties that this task imposes. The reviewer of the subsequent collection of essays is faced with the not insignificant task of providing comment upon the writings of one of the leading international lawyers of this generation.
The paperback edition has now been published - it has come out a year after the hardback but there have been no revisions. The text is still that submitted in January 1993. Given that Professor Higgins states that international law is a process, "not just the neutral application of rules" (p 267), the events that have arisen within the international community during the last two years should have had an impact upon our interpretation of international law and so, to a certain extent, the text may be said to be already dated. However, law books in general lead the field in built-in obsolescence and Professor Higgins has considered the difficult issues in order, one assumes, to provide guidance with regard to how international law might be used in any situation that might present itself. Her approach is as much to do with what international law is meant to achieve as it is with what it stipulates.
"First, I try to show that there is an essential and unavoidable choice to be made between the perception of international law as a system of neutral rules, and international law as a system of decision-making directed towards the attainment of certain declared values. Secondly, instead of recounting all the well-agreed principles of international law, I have deliberately written about many of the difficult unanswered issues in international law today. And I have tried to show how the acceptance of international law as process leads to certain preferred solutions so far as these great unresolved problems are concerned." (p vi)
Hence, a philosophy of international law as well as an exposition thereof. Nevertheless, one is left wondering how Professor Higgins might have viewed certain events of the last few years: the International Court of Justice's decision in the Lockerbie case on the respective roles of the Security Council and the Court (1) - cf. Chapters 10 and 11; the adoption of Protocol 11 to the European Convention on Human Rights and Fundamental Freedoms, giving individuals access to the European Court of Human Rights (2) - cf. p.51; and the institution of the War Crimes Tribunals for the Former Yugoslavia and Rwanda - cf. p.62.
As the title suggests, the book's focus is equally to do with the practical application of international law as it is with the content thereof. As such, it is more suited for the postgraduate student than one just starting Public International Law. This view is reinforced by the fact that it assumes a knowledge of the 'rules'. The book divides into two sections: Chapters 1-3 look at the identity of international law and its function; Chapters 4-15 consider those situations where international law contributes to conflict prevention (3). The comments which follow reflect my interests as much as the strengths of the text - indeed, to have written a comprehensive review of the entire book would have rendered this review twice as long as it currently is! I have also tried to avoid criticising the text on the basis of events subsequent to its original publication, rather new 'law' is presented solely to help reflection upon Professor Higgins' analysis of the decision-making process.
As indicated, Professor Higgins' main thesis is that international law is not simply rules derived from previous decisions, but incorporates the whole decision-making process - not just law in context, but the context as part of the law.
"[International] law is a process of decision-making, with appropriate reliance on past trends of decision-making in the light of current context and desired outcomes."
She rejects law as simply a series of rules because it fails to take account of the non- judicial matters which impinge upon any decision. Claims by traditionalists that only by eschewing non-legal matters can the true legal answer to a particular problem be divined ignore the fact that not having regard to political implications is just as much a political decision as one that is fully cognizant of them.
"Policy considerations, although they differ from 'rules', are an integral part of that decision making process which we call international law; the assessment of so-called extralegal considerations is part of legal process, just as is reference to the accumulation of past decisions and current norms. A refusal to acknowledge political and social factors cannot keep law 'neutral', for even such a refusal is not without political and social consequence. There is no avoiding the essential relationship between law and politics." (p 5)
Professor Higgins is aware of the fear, though, that if international law is not the impartial application of rules, but a policy-oriented decision, then the means can always be found to justify the desired end (pp 6-7). Her response that there is no simple answer to this problem because international law is not a unified body of rules that "all men of good faith can recognize", however, is right whilst failing to meet this fundamental objection. It is right because international law is best understood as a process and as part of a wider system of problem solving, but it is inadequate because it is premised on the equally ephemeral idea that "guiding principles" can be adopted based on what the commentator chooses to be desirable (pp 9-10). Nevertheless, international law as system, process, is a more accurate analysis of the practice of international law - it is truly neither a car nor a poem, but both, as Allott has put it in relation to society.
"Society is like a poem because it's a creation of human consciousness, for human consciousness. Society is a work of the imagination, like literature. But society is also a bit like a machine, such as a car, because it's designed to process specific inputs into specific outputs, following a structured system. And the structured system determines the relationship of the output to the input. And the result of it all is that society, like a motor-car, is designed to travel from A to B, namely from the past to the future." (4)
For Allott, law goes to the 'constitution of the society' (Allott p 110), but one can apply the above quotation by analogy to international law. International law, like all law, is a creation of the imagination, but it is also designed to achieve specific ends in particular situations, in Professor Higgins' view, conflict avoidance and resolution.
Chapter 2, 'Sources of International Law - Provenance and Problems', is not a review of all the sources of international law enumerated in Article 38 of the Statute of the International Court of Justice. It looks at problem areas to do with the sources, for example, custom and how it fits into Professor Higgins' process theory. If international law is a process dependent on context, then custom which develops out of practice presents a particular problem, for non-compliance with a customary norm may mean it is no longer a norm.
"If a customary rule loses its normative quality when it is widely ignored, over a significant period of time, does this not lead to a relativist view of the substantive content of international law, with disturbing implications?...No-one doubts that there exists a norm prohibiting torture. No state denies the existence of such a norm; and, indeed, it is widely recognized as a customary rule of international law by national courts. But it is equally clear from, for example, the reports of Amnesty International, that the great majority of states systematically engage in torture. If one takes the view that non-compliance is relevant to the retention of normative quality, are we to conclude that there is not really any prohibition of torture under customary international law?" (pp 19-20, footnotes omitted)
Professor Higgins rejects the higher normativity theory, espoused by Professor Schachter amongst others, whereby weightier evidence from practice is needed than is normal to displace certain norms - part of the problem is that one is left trying to define which are the "higher norms" of customary international law which require this greater than normal evidence. She relies on the two elements of custom - practice by the international community as a whole and opinio juris. If it takes almost universal practice to create custom, then a similar level of disregard is necessary before normative value is lost. While this line of argument might be of assistance with respect to the customary norm against genocide, it is inadequate in relation to torture because it is widely practised. Here, she relies correctly on the fact that the opinio juris is that torture ought still to be prohibited under customary international law. Nevertheless, this approach to customary international law means that no customary rule can ever be settled and must constantly be checked to see if it retains the two essential attributes of customary international law - practice and opinio juris. Moreover, taking Higgins' analysis to its logical conclusion, if states were hypocritical in their statements condemning torture, does that not question the original opinio juris (cf. the comments of Arangio-Ruiz and Schwebel cited at p 26 in relation to UN General Assembly resolutions)? Higher normativity for certain rules, on the other hand, does not provide a solution either, rather it is a question-begging concept. However, an argument could be built out of the fact that only 'authorized persons' (see p 2) can engage in the decision-making process that constitutes international law - that is, states, international organisations and international tribunals. The authority of these states, international organisations and international tribunals must flow from somewhere and Rawlsian analysis (5) would require that this authority be based on justice - a just state would not torture or violate any of the other so-called higher normative rules. The problem with this approach is that it is dependent on justice being attributed to all states as an additional and essential quality of membership of the international community .... In effect, therefore, it has to be accepted that customary international law will always necessarily be open to dispute as to its precise scope.
Chapter 3 looks at who may be an actor in international law. This is a question that has implications for many of the succeeding chapters and which will recur in subsequent discussion. The chapter highlights the distinction between recognising states and recognising governments. While according to Professor Higgins international law has traditionally focused on the state, it may be a useful tool in the decision making process to use recognition of governments in order to promote compliance with the norms of the international community, especially as so many new states emerge in the wake of the collapse of the former Soviet bloc. More radically, she is prepared to grant to individuals a much greater status in international law, rejecting the traditional subject/object dichotomy.
"It is more helpful, and closer to the perceived reality, to return to the view of international law as a particular decision-making process. Within that process (which is a dynamic and not a static one) there are a variety of participants, making claims across state lines, with the object of maximizing various values. Determinations will be made on those claims by various authoritative decision- makers - Foreign Office Legal Advisers, arbitral tribunals, courts. Now, in this model, there are no 'subjects' and 'objects', but only participants. Individuals are participants, along with states, international organisations (such as the United Nations, or the International Monetary Fund (IMF) or the [International Labour Organization]), multinational corporations, and indeed private non-governmental groups." (p 50)
However, the chapter does not deal with the status of minority populations, whether indigenous or not, other than as 'private non-governmental groups'. Given the events in Central and Eastern Europe, the former Soviet Union, Rwanda and the Chiapas region of Mexico, amongst many others, the status in international law of national, ethnic, religious and linguistic groups has never been so pressing.
"It has been correctly observed that international law supposes the existence of minorities both in general and of specific types. However, while the existence of human beings and states are (sic) 'axiomatic' in international law, the existence of human groups is problematic. Conceptually, international law struggles with the definitions of actors beyond the 'State'; indeed the problem of defining actors has always troubled political theory in general and international relations in particular....[While] the catalogue and content of individual human rights has become relatively clear, the specificity of protections for groups, particularly minorities, has remained largely uncertain. Paramount among this uncertainty has been the very definition of 'the' or 'a minority' to whom any rights may accrue."(6)
This is not to say, though, that minorities are ignored in the book, rather they are dealt with in Chapters 6 and 7, Human Rights and Self-Determination. As regards the human rights of minorities, the so-called third generation rights, Professor Higgins sees no objection why a collective right belonging to the group cannot be a human right, although it is arguable that only individual rights should be "human" rights. (7) The only objection as far as she is concerned is that groups "do not readily fall into the category of plaintiffs, cannot readily bring actions" (p 102). This of course takes us back to the issue of who are the actors in international law. The problem is avoided by stating that justiciability should not be decisive as to whether there is a human right or not, and by relying on the fact that Article 27 of the International Covenant on Civil and Political Rights (ICCPR) is phrased in such a way as to grant rights to the individual members of the minority group (p 127).(8) The latter reason is not persuasive with respect to other international agreements giving rights to minorities which are not so carefully phrased and until the status of minorities as actors in international law is clarified, this question will remain. As for minorities and self-determination, it is better to deal with it below as part of a wider review of self-determination.
Chapter 4 on jurisdiction is the first of the substantive topics addressed in the book. Again, Professor Higgins focuses on areas of uncertainty. Her consideration of extra- territorial jurisdiction is somewhat thin, not looking at the comparable quasi-territorial jurisdiction exercised by common law states to much the same effect as extra-territorial principles are exercised by civil law states.(9) The discussion of universal jurisdiction is the usual clear and thoughtful analysis of a confused area of the law, but there are some strange moments. She refers to the 'Third Restatement of the Law: The Foreign Relations Law of the United States' which has, for some reason best known to itself, used Article 19 of the International Law Commission's Draft Articles on State Responsibility in its arguments on universal jurisdiction. As Professor Higgins rightly points out later in the book (pp 165 et seq.), Article 19 is a misconceived attempt to attach criminal responsibility to states, not individuals, and so it is strange to see it being used in Chapter 4 in relation to universal jurisdiction, even if she eventually rejects its authority in this field (pp 62-3). Moreover, while a strict analysis of universal jurisdiction is justified, Professor Higgins fails to comment on the representational principle lato sensu, where one state steps into the shoes of another in order to prosecute where extradition is denied (aut dedere, aut punire/judicare is mentioned at p 63). It would have been interesting to see her views on the responsibility of a state where a hijacker is found, but where no request for his extradition is received. The state where s/he is found has jurisdiction under the Hague and Montreal Conventions, but is it dependent on a request for extradition having been made and rejected? As Professor Higgins states, hijacking is not a crime under customary international law. And what of torture under general international law (p 64)? Finally, her single paragraph on the European Convention on the Suppression of Terrorism, stating that it comes closest "to truly universal jurisdiction" is as puzzling as it is brief. Of all the sections in this book, this was the most disappointing to this reviewer.
Abduction is very clearly analysed, although the section does not include the later case of Bennett v Horseferry Road Magistrates' Court [1994] 1 AC 42, [1993] 3 All ER 138: since the House of Lords' reasoning mirrors that of Professor Higgins, this is no complaint at all, indeed it demonstrates that her arguments can be used to address and possibly predict new developments in international law.
The coverage of human rights in Chapter 6 is stimulating - as one would expect from a member of the Committee on Human Rights. It rightly argues in favour of universalism.
"It is sometimes suggested that there can be no fully universal concept of human rights, for it is necessary to take into account the diverse cultures and political systems of the world. In my view this is a point advanced mostly by states, and by liberal scholars anxious not to impose the Western view of things on others. It is rarely advanced by the oppressed, who are only too anxious to benefit from perceived universal standards. The non-universal, relativist view of human rights is in fact a very state-centred view and loses sight of the fact that human rights are 'human' rights and not dependent on the fact that states, or groupings of states, may behave differently from each other so far as their politics, economic policy and culture are concerned." (pp 96-7; footnotes omitted.)
Obligations are owed to individuals directly because they have rights, human rights.
"Human rights are rights held simply by virtue of being a human person. They are part and parcel of the integrity and dignity of the human being. They are thus rights that cannot be given or withdrawn at will by any domestic legal system." (p 96)
The alternative view is that states have contracted with each other to accord rights to their own populations through international treaties ratified by those self-same states. This view is premised on states being the sole actors in international law and rights requiring justiciable remedies if they are to be real rights. Prior to Protocol 11 to the European Convention on Human Rights and Fundamental Freedoms, human rights systems did not grant individuals access to courts to challenge states for violations of human rights - under the ICCPR an individual might bring a complaint to the Committee on Human Rights (not a court) only if the state had ratified the Optional Protocol; individuals previously only had access to the European Commission on Human Rights, not the Court, and again the state had to have accorded the right of individual petition; the American Convention had a similar split between Commission and Court. However, in Chapter 3 Professor Higgins has stated her wider views on 'actors' and at pp 99-100 she argues that a justiciable remedy is not a prerequisite to a 'right' being granted. While the arguments can be supported in relation to actors, I am less convinced by the practical efficacy of according the title 'rights' to things that cannot be tested before any third-party, independent system of assessment.
Chapter 7 looks at self-determination as a right of peoples. The historical analysis clears up many of the confusions which surround self-determination in international law. Most importantly, that self-determination is not solely to do with independence and that it is an on-going right (pp 119-20). Specifically on minorities and self-determination, she rejects the notion that they might be able to secede or to join with their kin-state.
"The emphasis in all the relevant instruments, and in state practice ... on the importance of territorial integrity, means that 'peoples' is to be understood in the sense of all the peoples of a given territory. Of course, all members of distinct minority groups are part of the peoples of a territory. In that sense they too, as individuals, are holders of the right of self-determination. But minorities as such do not have the right of self-determination." (p 124)
The corollary is that the proper protection of the rights guaranteed to members of minority groups under Article 27 of the ICCPR is interlinked with self-determination under Article 1, but they are discrete rights (p 125). While this avoids having to distinguish peoples from minorities, the minority is only protected incidentally under Article 27 as a by-product of rights granted to its members - no rights are accorded to the minority as such. The only strange thing about the discussion of peoples and self- determination is the failure to look at the status of indigenous peoples as peoples for the purposes of Article 1 ICCPR.
The final two chapters look at the use of force in international law. Many of the issues that face the international community are discussed - whether self-defence can be asserted after the failure of a long term cease-fire brokered by the UN, as in Bosnia- Hercegovina (p 241); military response to terrorism (pp 244-5); and humanitarian intervention. On this latter topic, though, the discussion does not go into the lawfulness of foreign troops remaining to install a friendlier government. Turning to the use of force by the UN itself, this is probably the most difficult topic before international lawyers at the present time. What obligations are owed by such forces to the civilian population, the state where they are deployed and what rights do the UN forces have against any aggressors? Is it possible to make peace rather than just keep it? What happens if the state where deployment takes place has ceased to exist in any meaningful sense? There are no answers yet to any of these questions, but Professor Higgins' analysis, understanding international law by examining what it is that it is seeking to achieve, helps to clarify the way one should approach these new developments.
Conclusion: This book helps people with a grounding in international law to think about new developments. It is therefore timeless, for the analysis need only be applied to new developments and events. It will long occupy a place on my bookshelf alongside Allott's Eunomia and Koskenniemi's From Apology to Utopia - and it has the distinct advantage that it can be understood the first time you read it! (10)
Footnotes
(1) The Case Concerning 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 USA, 1992 ICJ Rep.3, 31 Int Leg Mat 662 (1992); Beveridge, 'The Lockerbie Affair', (1992) 41 Int'l & Comp LQ 907 at pp 916-19. Back to text.
"Article 34 - Individual Applications:- The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."Back to text.
(3) The full Table of Contents is as follows:- The Nature and Function of International Law; Sources of International Law - Provenance and Problems; Participants in the International Legal System; Allocating Competence - Jurisdiction; Exceptions to Jurisdictional Competence - Immunities from Suit and Enforcement; Responding to Individual Needs - Human Rights; Self-Determination; Natural Resources and International Norms; Accountability and Liability - the Law of State Responsibility; The United Nations; Dispute Settlement and the International Court of Justice; The Role of National Courts in the International Legal Process; Oiling the Wheels of International Law - Equity and Proportionality; The Individual Use of Force in International Law; The Use of Force by the United Nations. Back to text.
(4) Allott, 'New International Law' in Warbrick and Carty, Theory and International Law: An Introduction at p 109 (1991); see also, Allott, Eunomia: A New Order for a New World (1990). Back to text.
(5) Rawls, A Theory of Justice (1972), and Political Liberalism (1993). Back to text.
(6) Packer, 'On the Definition of Minorities', (footnotes omitted), in Packer and Myntti, The Protection of Ethnic and Linguistic Minorities in Europe, (1993), at p 23 . See also, Hannum, 'Contemporary Developments in the International Protection of the Rights of Minorities', (1991) 66 Notre Dame L Rev 1431 at p 1445.Back to text.
(7) Cf. Rodley, 'Conceptual Problems in the Protection of Minorities - International Legal Developments', (1995) 17 HRQ 48 . Professor Higgins does require that the group right should not be too indeterminate - she uses the right to peace, but it could equally well be applied to rights to participate in political decision-making processes.Back to text.
(8) UNGA Res.2200A(XXI), UNGAOR, 21st Sess, Supp No 16, 52 (1966); 999 UNTS 171; (1967) 6 Int
Leg Mat 368 ; (1967) 61 Am J Int'l L 870.
"Article 27. In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."The phrase "in community with other members of their group" must mean that the right belongs to individual persons, not persons as a group. Back to text.
(9) See New Zealand Crimes Act 1961, s 7; Libman v The Queen, 21 DLR (4th) 174, SCC, 1986; DPP v Somchai Liangsiriprasert, [1990] 2 All ER 866. Back to text.
(10) It should be noted that the difficulty with Allott and Koskenniemi is a reflection on this reviewer, not those two authors! Back to text.