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The Role of International Law: Judge Christopher G. Weeramantry

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Judge Christopher G. Weeramantry commenced his professional work as a lawyer in Sri Lanka in 1948, Judge Christopher G. Weeramantry has over the past six decades been a legal practitioner, a law professor, a domestic judge, an international judge, a legal author, an international lecturer, an arbitrator and a peace worker. He was a Judge of the International Court of Justice from 1991-2000, and its Vice President from 1997-2000. He has also been Acting President and presided in that capacity over some notable cases. Prior to that he was a Justice of the Supreme Court of Sri Lanka and a Professor of Law in Australia.

Judge Weeramantry is one of the thought leaders participating in Ideapod’s launch, promoting the “big idea” of the role of international law. Sign up for the waiting list at www.ideapod.com to share ideas related to promoting the cause of international law.

You are widely considered one of the most distinguished contributors to the theory and practice of international law. Looking back on your extraordinarily rich experience of the last half century and thinking of the coming decades, how do you see the role of international law?

International law has become a key instrument in creating a better future for humanity. It can be regarded as the “common law” of the world in the making. It symbolizes but also provides a framework for a world that has become increasingly interdependent and interconnected.

There was a time when international law was viewed as a subject on the periphery of legal theory and practice. Today it impregnates every facet of domestic law. This applies to most areas of governance, including trade, investment, public health, labour, transport, communications and environment. Even in the rather nebulous area of human rights, the Universal Declaration of Human Rights, which was only a declaration, was followed by two conventions – one on civil and political rights and the other on economicsocial and cultural rights. These represented a dramatic transformation of mere declarations into binding state obligations. The same is true of international humanitarian law.  War crimes, crimes against humanity and genocide are now punishable under international law. The international Criminal Court has been instituted expressly for this purpose.

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Let me turn to an area to which I know you have devoted much thought and energy, namely nuclear weapons. International law does not appear to have made much headway in removing the threat posed by nuclear war? What is your assessment of the situation?

There can be no doubt that the nuclear scourge remains one of the fundamental problems of our time. In this the major powers, and in particular nuclear weapon states, bear a grave responsibility. Regrettably, in recent years a huge blanket appears to have fallen over the suffering already inflicted by the use and testing of nuclear weapons. In a recent communication to the 2015 NPT Review Conference Preparatory Committee I stressed that the use of nuclear weapons is in all circumstances contrary to international humanitarian law. In the 1996 advisory opinion of the International Court of Justice all 14 judges concluded: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

Unfortunately, this has not happened, which is why I have strongly supported negotiations for a Nuclear Weapons Convention. As I have argued on many occasions, there cannot be one law for the nuclear powers and another law for the non-nuclear powers. By the very principles of law and justice, which the powerful states seek to uphold, the nuclear weapon in any shape or form stands condemned. We need therefore a legally binding convention that prohibits the development, production, testing, deployment, stockpiling, transfer, threat, or use of nuclear weapons in any form whatever and offers a phased plan for total nuclear disarmament.

There are, of course, precedents for the legal prohibition of particular weapons. The Hague Convention of 1899 prohibited the use, in international warfare, of dumdum bullets, and the 1997 Mine Ban Convention bans the stockpiling, transfer and use of anti-personnel land mines.  We are, therefore, in the strange situation that states which consider the use of dumdum bullets and land mines to be too cruel to be acceptable in warfare, do not seem to think the same about nuclear weapons!

In recent years you have drawn attention with increasing vigor to the contribution that the world’s major religious and ethical traditions could make to the development of international law. What exactly do you have in mind?

The proposition can be reduced to this: international law would be both richer and more authoritative to the extent that it can effectively incorporate the shared wisdom of the world’s major religious and ethical traditions.

In Hinduism, Buddhism, Islam and Confucian teaching, universally applicable rules of conduct are well-developed. These include matters fundamental to international law such as the sanctity of treaties, the respect due to diplomats, duties towards neighbors  duties of sovereigns, care of the environment and humanitarian law.

In Europe natural law and the teachings of Christianity dominated international law till a marked separation of international law and religion occurred in the 17th Century. Writers like Hugo Grotius deliberately distanced the discipline of international law from religion because they were writing in the midst of wars of religion.

The Thirty Years War raged in Europe between 1618 and 1648 and tore European societies apart, with competing interpretations of scriptures by different sects and churches. As a consequence the practice of justifying legal principles through their accordance with religious teaching grew weaker. With the Peace of Westphalia in 1648 the moral authority formerly exercised by the Papacy or the Holy Roman Empire largely dissipated. Thus Grotius and his contemporaries had good reason for developing the modern principles of international law by turning to human experience and secular understanding of natural law. Moreover with the extraordinary growth of commerce, technology and military power, the practice of states became increasingly removed from its moral foundations. International law also tended to cast itself in a largely monocultural and Eurocentric mould and so shut itself away from other major sources of perennial wisdom. It is time for the sources of ancient wisdom to be reintegrated into the understanding and practice of our contemporary international legal system.

Am I right in saying that you see the environmental crisis as a catalyst for this rethinking of the foundations of international law?

Yes, absolutely. Legal principles are rapidly evolving in international environmental law, and these need to be nourished by ancient wisdom which embodies the experience of thousands of years connecting humanity and the environment.

There is, in fact, a convergence of the insights of all the major religious traditions around a number of key themes, in particular, the stress on simple living and avoidance of ostentatious consumption; the emphasis on responsibilities and not just rights; the stress on spiritual principle as opposed to merely material well-being; the notion of trusteeship of the earth’s resources; the value attached to the common good rather than individual self-interest; and the rights of future generations.

Perhaps I can illustrate this by drawing on one of the hadiths, which are an important source of Islamic learning. We are told to visualize a two decked boat. As is the human tendency, quarrels break out among passengers. There are quarrels on each deck but more importantly a major quarrel erupts between the passengers on the lower deck and those on the upper deck. Passengers on the lower deck need to go to the upper deck to fetch water, but owing to their quarrels this becomes impossible, whereupon a hothead in the lower deck says in effect: “there is water everywhere. Can’t you see this?” He takes an axe and readies himself to chop a hole in the lower deck close to where he is seated. Here is a poignant description of how our environment is in danger of collapse by the selfish, foolish and short-sighted actions of some. It is also a graphic description of how the nuclear bomb could destroy all humanity. The lesson is clear enough: there is no alternative but to settle our disputes and cooperate in the use and long-term management of our resources.

Of course, such principles are likely to gain in their effectiveness and legitimacy to the extent that they become central to the dialogue of faiths and cultures, and to our educational processes. And once these principles infuse the thinking of educators and jurists, they will also over time infuse the principles, concepts and procedures of legislators and judges.

Justice Weeramantry is here interviewed by Professor Emeritus Joseph A. Camilleri, La Trobe University.

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