Towards One World: The Memoirs of C.G.Weeramantry. Volume III: The International Court and Thereafter’

Stamford Lake Publications 2014 Reviewed by Antony Anghie



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This is the third volume of the memoirs of C.G.Weeramantry (`Christie’ to his many friends all over the world, Judge Weeramantry to international lawyers, and `Professor’ to me). The first volume dealt with his childhood and early career in Sri Lanka and the second with his time as a Professor of Law at Monash University in Australia. This volume continues his story from his time on the International Court of Justice to the present. It tells of his experiences on the ICJ and the improbable circumstances in which he was elected. It also covers his time as a visiting professor at Harvard, and the many activities he was involved in after his time on the ICJ, when he returned to Sri Lanka and established the Weeramantry International Centre for Peace Education Research, a vehicle by which he pursued his campaign for peace and sustainable development in his own country and attempted to translate theory into practice.


His career following his time on the ICJ has been extremely demanding, as organizations all over the world have sought his expertise in causes ranging from the promotion of the rule of law and judicial independence to the banning nuclear weapons and the promotion of environmental sustainability. His work in the cause of international peace has won international recognition in the form of the many degrees and awards bestowed upon him, including the UNESCO Peace Award and the Right Livelihood Award (the `Alternative Nobel Prize’). Now in his eighties he continues to work and travel indefatigably, trying as best he can to respond to the many demands on his time. This is an extraordinary life of someone who can surely claim to be one of the greatest individuals Sri Lanka has ever produced.


The book is rich in its accounts of events and personalities, but here, I will focus on his work as an international jurist, simply because it is such a major theme of this volume. Further, despite all the esteem he enjoys in Sri Lanka, I think it is possible that the real nature of his originality and achievement and the battles he fought in articulating a Third World vision of international order, may not be very well known or understood.


The volume begins with Professor’s campaign, his second, for a position on the International Court of Justice. It still seems incredible that, despite overwhelming odds, it succeeded. Daya Perera P.C was Sri Lanka’s Ambassador to the UN at the time, and his hard work and effervescent personality were crucial parts of the campaign as was the high esteem in which Sri Lanka was then held in international circles. In our meetings with Ambassadors, Shirley Amerasinghe was always mentioned with great affection and respect. I should add that the campaign team, consisting of personnel from Sri Lanka’s embassy and a few of Professor’s friends and colleagues, produced its own documents: no public relations firms were needed.


In order to win election, any candidate for the ICJ has to gain a majority of votes in both the General Assembly and the Security Council. Several rounds of voting are sometimes needed, as candidates are gradually eliminated. As the voting commenced, and as it became slowly apparent that Professor could actually win, as the Assembly and then the Council gradually changed their positions over successive rounds, almost as though the great globe itself was slowly shifting and wheeling around, there was a strange and palpable sense that that history being made, destiny being fulfilled (it also happened to be Professor’s birthday).


It is fair to say that the sitting Judges of the ICJ, though welcoming and cordial, had few expectations regarding this obscure lawyer from a very small country who had somehow won election to the Court. Professor had not followed the conventional route to the ICJ, one that usually involved serving on the International Law Commission and, very often, holding high Diplomatic Office. Professor himself was somewhat uncertain about how he would meet the challenges he confronted of proving himself worthy of such an august position. But he had faced a similar challenges before, when first going to the Bar (one of his potential clients had, on meeting him, refused to entrust `this schoolboy’ with his case - he tells the story in Volume One), when assuming his position on the Supreme Court, and then, when taking up his professorship at Monash. He applied himself to the work of the Court with his usual dedication and single-mindedness, extremely sensitive to the enormous responsibility he had to discharge -establishing and applying the international rule of law in addressing some of the most fundamental challenges confronting the international community - territorial disputes, environmental degradation and, inevitably, war and peace.


His impact on the Court was astonishing. Within a few years he established himself as an outstanding jurist with a distinctive, powerful and eloquent voice, and his bold and visionary jurisprudence was greatly appreciated by the many international lawyers who felt that the Court was timid and slow in responding to the massive changes taking place in international affairs.


How did he do it? As always, he worked extraordinarily hard. And then, it became apparent that he had a rich judicial experience and a set of intellectual resources that in fact made him uniquely qualified to serve on the International Court of Justice. His time at the Sri Lankan bar had honed his forensic and analytic skills, forged by the challenge of arguing against the likes of his colleagues such as H.V Perera (whom he still regards as the finest lawyer he has encountered in any jurisdiction). His years on the Supreme Court of Sri Lanka had made him completely familiar with the practicalities of the judicial process. The President of the Court, Stephen Schwebel, pointed this out appreciatively, as the majority of ICJ judges had been academics and diplomats rather than judges. Very importantly, Professor’s time in Sri Lanka had acquainted him with both the civil and common law systems, while virtually every other Judge on the Court was a product of one of these major traditions. He was an expert in the major Western traditions. Instead of being overawed and intimidated by them, he identified what was best about them and used them, to further his own vision.


Most significant perhaps, was the fact that the Sri Lanka legal system - as he points out in Volume One - comprises of many different sub-systems: Roman-Dutch law, Kandyan Law, common law, Thesawlamai, Muslim law. In effect then, while serving as a Sri Lankan Judge, he was engaged in the same intellectual task that lies at the heart of international law that of appreciating, applying and reconciling different legal systems to resolve disputes in a manner that finally appeared both just and legitimate. In addition, of course, he is a brilliant lawyer. He has an uncanny ability to cut through a very complex set of facts to identify the basic and underlying issues, and, even more importantly, to understand how those issues should be viewed from the broader perspectives of global justice and order rather than the narrow concern of simply settling the dispute between the parties. Kindly skepticism gave way to surprise and then something bordering on astonishment as Professor proceeded to calmly and authoritatively outline a distinctive and compelling vision of international law and order.


In his bold and incisive decisions and opinions, Professor articulated a jurisprudence that was consistently sympathetic to the rights of developing countries, of smaller and less powerful states. He was fortunate enough to be a member of the ICJ at a time when it heard cases dealing with the most fundamental issues of international law and order. The decisions he made can be stated in simplified and prosaic terms. In the Nuclear Weapons Case he declared the threat or the use of nuclear weapons to be illegal. He affirmed the rights of the people of East Timor - then under Indonesian rule - to their natural resources, and to self-determination. He was the Presiding judge in one of the largest and most complex cases brought before the Court, the action brought by Yugoslavia in an attempt to stop the NATO bombing. Here, Professor affirmed the law of the United Nations prohibiting the use of force without UN authorization even when such force was being used for a supposedly humanitarian purpose.


In the Lockerbie Case he affirmed that the Security Council was bound by the law of the UN Charter. His decisions were based on some of the most basic principles of international law: the sovereign equality of states, the prohibition on the use of force, and what might be termed, a `jurisprudence of human survival’. He innovated by using resources within classical international law - principles of equity for instance - to fashion a jurisprudence that was directed towards ensuring the survival and flourishing of the human species. This he did in the concrete decisions he made regarding the use of force, environmental protection, the settlement of territorial disputes, maritime boundary delimitations, the powers of the Security Council. (Having said all this I should add that the best decision he ever made was in marrying Auntie Rosemary).


Most significantly, Professor drew, not only the classic Western sources of law to decide these cases, but on the legal systems and principles of cultures all over the world. It is in this way that Buddhist teachings have been included in the jurisprudence of the Court for the first time in its history. He has also drawn on Islamic and Hindu law (one of his favourite phrases is `the kingless authority of the law’), and on the traditional legal systems of Africa and the Aborigines of Australia among many other such sources of law that have been neglected by the Court. He demonstrated how such teachings could provide guidance when deciding difficult issues regarding, for instance, the relationship between environmental protection and economic development. Crucially, his innovative jurisprudence could not be easily dismissed by those who were more orthodox and narrow in their outlook precisely because Professor had already mastered the Western legal traditions that were the foundation of these more conventional approaches.


Indeed, unlike many of his colleagues at the Court, he was an expert in both the common and civil law traditions. He had mastered the traditions sufficiently to know what was best about them, and what they could offer, while also understanding their limitations. In this way, he has expanded enormously the jurisprudence of the Court, making it more inclusive and more reflective of the many legal systems at work, more truly a `World Court’. This is one of the principal reasons why international law scholars from throughout the developing world admire and revere his work, as he has accomplished so much in decolonizing international law. The volume then, is a volume of ideas, one in which he sets out his vision and his wisdom about the working of the law and how it might be used to further justice.


None of this, the brilliance, the expertise, the detailed and wide ranging legal knowledge would have been of much consequence without the personal integrity that are the defining features of Professor’s personality. He is a great jurist. More importantly, however, he is an extraordinary human being whose own personal conduct has been guided by the highest ethical standards. The ideal of Justice is not a purely professional or abstract preoccupation for Professor: it governs his everyday dealings with people whom he always treats with kindness and consideration regardless of their rank or station.


A kindly and gentle man - too kindly and gentle, many of his friends would say - his pursuit of the rule of law is single minded and uncompromising. He was urged by many of his supporters to `take it easy’ as his ICJ term was ending and the re-election campaign loomed. Professor was ambivalent about seeking a second term. Had he won re-election, he would certainly have been President of the ICJ. But of course he did not `take it easy,’ instead continuing in his Judgments to lay out the rule of law as he saw it. This simply demonstrates what is manifest to anyone who knows him even slightly, that Professor’s integrity is total and unassailable. His father, Gregory Weeramantry, had been a fine example and it is interesting to think about his influence on his youngest son.


Professor’s judicial independence did not of course go unnoticed by the parties who were at the receiving end of his strictures members of the Security Council whose votes were crucial. Despite the powers that were ranged against him, this was an election we should never have lost. (Then again, we should never have won in the first place). Almost a decade later, when I was discussing the election with a United Nations official, he pointed out to me that major powers were concerned by the fact that Professor was transforming the Court, not only by his jurisprudence, but through his example and support which was encouraging other Judges from the Third World to express their views with confidence and authority. He is enormously respected even by those who disagreed with him. His good faith and sincerity are evident to all. When the volume I co-edited for his 70th birthday, several very eminent international lawyers expressed their regret that I had not invited them to contribute as they wanted to show their appreciation for him. I had underestimated the extent of his circle of admirers.


He has provided invaluable and enduring insights on all the issues he has written about whether it is the Iraq war or the Executive Constitution of Sri Lanka (as an earlier volume recalls, he warned J.R. Jayewardene about the possible consequences of its operations) or the importance of `winning the peace’. Professor has a strong and developed sense of judicial propriety. He is not a political commentator. His particular wisdom is based, not on an analysis of fluctuating circumstances and changing personalities but on a profound understanding of the role of law in creating and furthering a just society. His insights are the product of a superbly discerning mind which has been tireless in its examination of these fundamental issues. What is the role of law in creating a just society? What happens to a society when law itself is corrupted and misapplied and removed from the everyday realities of the people it is supposed to govern? These are the fundamental themes he has been examining and exploring in an astonishingly wide variety of settings, societies and disputes ranging from the Law of Buddhist Temporalities to the exploitation of Nauru by Australia, to the legality of Nuclear Weapons. It is this ongoing set of explorations that make these volumes so valuable. It is perhaps fitting then, that they conclude with a final chapter that is entitled `A Philosophical Perspective’.


On completing this volume I found myself returning to the first volume. It is here after all that we encounter the people and the country that helped make him what he is. He provides us with a model of what Sri Lanka, at its best, can offer the world. It has been my great good fortune to have been associated with him since I was his student more than 30 years ago. Thanks to these volumes however, those who read them can find inspiration from the example of an extraordinary man who is both a great Sri Lankan and citizen of the world.


(The writer is the Samuel. D. Thurman Professor of Law at the University of Utah and has served as a visiting professor at the American University, Cairo, Cornell, Harvard, London School of Economics and the University of Tokyo. He took his LL.B degree from Monash (Australia) and holds and SJD from Harvard).


 
 
 
 
 
 
 
 
 
 
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