The Whewell Professor of International Law at the University of Cambridge James Crawford delivered a lecture at The Hague Institute entitled, “The International Legal Outlook for Governments Today.” Dr. Abi Williams, president of The Hague Institute, opened the 22 May event and welcomed the Australian Ambassador to the Netherlands, Neil Mules, who introduced Professor Crawford. The event was held in partnership with the Australian Embassy in The Hague.
Crawford’s talk covered four pertinent topics: changing judicial institutions over the past twenty-five years, the proliferation of international organizations, dispute settlement, and the question of what—if anything—has changed in international relations from a legal point of view.
As an example of the changed nature of judicial institutions, Crawford highlighted the International Criminal Court (ICC). Hardly anyone, he said, would have expected this international criminal law regime to be enforced in as few as ten years. Notably, the Security Council had “kicked the ball into the long grass,” but in less than three years the International Law Commission (ILC) formulated what later would become the Rome Statute. The ILC’s minimalist draft was, however, reworked by European Ministries of Justice and NGOs into a “mini-international justice system,” with considerable powers to the court and the prosecutor. As a result, the United States found it unacceptable. Nonetheless, even today the international criminal law regime continues to evolve, and the United States cannot avoid some involvement; meanwhile, the ICC’s principle of complementarity “seems to act as a stopper.”
The Hague Institute President, Abi Williams
As to the proliferation of institutions, Crawford believes that we risk ending up in a “wilderness of single instances” à la Tennyson. The absence of a system of appeals endangers the unity of subject with each court having its own competence to decide on its own jurisdiction. For example, in a case involving Somali and Eritrean migrants boating towards the shores of Italy from Libya, the Grand Chamber of the European Court of Human Rights ruled unanimously that Italy had acted contrary to Convention obligations by committing a mass expulsion of aliens (Hirsi Jamaa and Others v. Italy). The ICJ, presumably, would have reached another conclusion. Only rarely do courts review decisions. For instance, the ICJ has reviewed cases of other courts in relation to attribution of genocide by the International Criminal Tribunal for the Former Yugoslavia and by the International Criminal Tribunal for Rwanda.
Crawford observed that, in terms of dispute settlement, the ICJ does not appear—or at least no longer appears—to be the forum of first resort. Only a few cases are now pending before it, which raises questions of the integrity of the system of this principal judicial organ of the United Nations. Arbitration is often preferred. Legal forums also seem to be chosen somewhat haphazardly. Successes are for instance the WTO dispute settlement, which according to Crawford is functioning well. Additionally, investment arbitration is growing significantly, with almost one new case per week.
Paraphrasing Clausewitz, Crawford raised a final question: “Is this phase of international law relatively new or is it a continuation by other means?” Few if any international organizations, Crawford argues, have actually reformed themselves. Although international organizations are held responsible under the articles that were designed for state responsibility, there appears to be no mechanism for breaking the chain of “passing the parcel,” which we witness today. Dutch courts have in the Dutchbat-case touched on the issue of responsibility for peacekeeping, but this issue is not fully resolved. The era of multilateral treaty-making might be over. Developments over the last 25 years have without question significantly eroded the concept of state sovereignty. Crawford also pointed out a “problem of creeping concepts,” such as responsibility to protect (R2P).
Amb. Neil Mules
In concluding, Crawford noted that all governments both face new forms of dispute settlement and are—like it or not—part of an international arena. Should the undoubtedly enormous development in international law be assessed as positive? Crawford encouraged the audience to give an answer to this question.
Professor Crawford is considered one of the preeminent authorities in the broad field of public international law. He has made invaluable contributions to the development of international law, by appearing before the International Court of Justice and the International Tribunal for the Law of the Sea. He has served as counsel in many groundbreaking cases; appearing as arbitrator and counsel for the Permanent Court of Arbitration and the International Centre for the Settlement of Investment Disputes; and drafting the Articles on State Responsibility and the Draft Statute for the International Law Commission. In October 2012, he was nominated for election as a Judge of the International Court of Justice.