UN Peacekeeping

The first of these projects flowed from her realisation that first-hand experience with the administrative machinery of the United Nations had given her an opportunity to present, in forensic detail, the full documentation and results of certain of the organisation's activities. She had initially come into contact with the UN administrative machine when undertaking a UK-sponsored internship in New York in 1958, and she fell under the guidance of Oscar SchachterFootnote ⁶. At this time, the UN organisation was barely 13 years old. Later, when the idea of a specific project, initially suggested by Eli Lauterpacht, took shape, she decided to focus on international peacekeeping. She judged that in the early 60s the paper-trail was still sufficiently small for the data on UN peacekeeping to be collatable by one personFootnote ⁷. Nevertheless, the work turned into a monumental task. Fortunately, by then Rosalyn Higgins was employed as a Staff Specialist at the Royal Institute of International Affairs in London, aka Chatham House, and writing and researching UN issues was what she was “....there for. [Also] to write, to answer members' questions and to give occasional lectures.”Footnote ⁸

During her time at Chatham House, Dr Higgins produced the first two of her epic volumes on early UN peacekeeping operations - Vol. I, Middle East, 1969; Vol. II, Asia, 1971Footnote ⁹. Reviewers of these early volumes commented on the immense amount of work they entailed, including analysing all relevant telexes and ancillary material. As she explained in her Balzan article, “I used a template throughout the volumes, that I applied to each and every [peacekeeping] operation then existing: the background, the enabling resolutions, the functions assigned, relations with the host state, with the contributing states, with the UN member States, financial issues, and the implications of the mandate” (2009, p. 7).

The thoroughness of these works earned Dr Higgins universal praise for her ground breaking endeavours. Even after 40 years, her comprehensive coverage and non-political presentation has stood the test of time. “Yes, that's what lawyers have to do, isn't it? It's very pleasing to hear that everyone working on peacekeeping in the UN Secretariat still has these, although the world of peacekeeping has changed so enormously. No-one's interested in your views on a particular thing, just get all the data out there, make it available, explain what the quarrels were. ......There's no interest in saying the rights and wrongs of [the situation] I would say - here were the issues, this is the way they were handled, here was the position of the parties. ”Footnote ¹⁰

The project was completed in later years, when the formula was repeated in Vol. III, Africa, 1980; Vol. IV, Europe, 1981. Both were written when Dame Rosalyn was Professor of International Law at the University of Kent, but by that stage (the Balkans UN operations had taken place) she had realised that the volume of data had become daunting. When it was put to her that follow-up editions could be contemplated, she admitted that “... those years were years that were nearer to the beginning of the UN than now. Now, you just couldn't do that, not without ten researchers..... I did [my work] without any help at all.Footnote ¹¹” She had identified a window of opportunity in which to produce, with concentrated effort, a unique compilation that a single researcher can now no longer replicate.

Dr Higgns stayed at Chatham House from 1963–74, in an environment in which, although she had no research assistance, she was free to pursue her UN researches. I asked her why in 1974 she left a setting so conducive to research, she said: “It's a very simple answer. When I went there the Director was Kenneth Younger Footnote ¹², who was a wonderful... he'd been a Labour Minister and he was a wonderful internationalist and I felt I flourished under him. Then came... my recollection is that he retired before he died, that's my recollection. Then came Andrew Shonfield Footnote ¹³who was of course very well known as a newspaper economist for the Observer and a very interesting and warm and outgoing man. Really all his interests were at that time EEC interests and he wanted Chatham House to focus on all of that other thing etc and so I knew it was time to go.”Footnote ¹⁴

The Bar

A second example of Dame Rosalyn's willingness to take on extra work when her life seemed already full, was her training for the Bar. After leaving Chatham House in 1974, she moved to the Department of International Relations at the London School of Economics (1974–78). Here she taught a compulsory course in international law for four years and also began consulting for Mobil Oil on the complex situation of the state's rights in the pioneering North Sea petroleum province. Despite her new work regime, and against her better judgment, she allowed her husband TerrenceFootnote ¹⁵ to persuade her to study for the Bar exams. In retrospect, Dame Rosalyn is very conscious that it was he who urged her on and she made a special mention of her debt to him in the Preface to her book Themes & Theories”. “I would not without his insistent urging have gone to the Bar in 1976” (p. vii 2009). During our interview she told me that he had said “Yes, you can do that. You can squeeze that in, why not do it?......I remember saying to him, “I don't need to go to the Bar, I'm doing fine as I am””. She found the additional work a great burden, “.....it being so grim going back and doing subjects you had long since forgotten or had never done and had no natural attitude for. I remember tax law and things like that. So on top of teaching and all the consultancy work as it then was, I then had to do all of that. But anyway, eventually it was behind me, and I got called. That has obviously been very important in my life too.”Footnote ¹⁶ The background in legal practice thus acquired, later proved a boon in her career as a jurist.

Both endeavours paid handsome dividends: her UN compilations set her apart as an expert par excellence on the manner of creation, and subsequent execution of UN international law, while her work as a barrister stood her in great stead when court procedures and attitudes became the focus of her life.

Figure 1:

Dame Rosalyn in Chambers when made QC (1986).

Rules vs policy

A seminal event in Dame Rosalyn's career was the decision to study at Yale in 1959–61 for her doctoral thesis. Here she met a mentor who significantly influenced her career, while the institution itself provided an inspirational haven to which she gravitated on all her many later visits to the USA.

In the early part of her career, “....most people thought policy in law was daft - law was about rules, and all you had to do was know the rules and apply them and there was quite an impatience with it all.”Footnote ¹⁷ But Dame Rosalyn had felt otherwise, and she worked to develop a new approach based on the notion that international law is a process of decision making for resolving problems in which policy factors play an important role, rather than a body of rulesFootnote ¹⁸. In helping her to formulate this viewpoint, she acknowledges a great debt to the legendary Professor Myres McDougalFootnote ¹⁹, then head of the Law School at Yale.

On arrival at Yale she was “immediately brought under the spell of this extraordinary man, Myres McDougal, who anyone will tell you was just this astoundingly charismatic, argumentative, strong personality but if you were in his favour it was a very special bond and he was the one who taught me, which I still believe to this day, that international law is not about rules. Rules are things that can't be gainsaid.”

McDougal's approach to international law came as an “astonishing fact which no-one had ever suggested [at] Cambridge. I had wonderful teaching in Cambridge but there had been nothing outside the black letter law - it was just what it was all about” Footnote ²⁰ For Dame Rosalyn, this was a revelation, and a guiding star by which she plotted her course through the vagaries of the creation of international law by the UN body. She applied in her first book “Development of International Law through the Political Organs of the United Nations”Footnote ²¹, which established her credentials as the authority on the UN as an international law maker, as well as its mechanisms of operation. The book was widely acclaimed, and as Derek BowettFootnote ²² pointed out, gave “the clearest possible proof that international law is being developed in the most significant way by the political organs of the United Nations”. Today, such a statement would appear self-evident, but barely a decade after the UN's founding, the UN was considered a “tiresome newcomer to the scene whose activities are of little relevance to the substance of international law itself”Footnote ²³. Similarly, Oscar SchachterFootnote ²⁴ commented that “this pioneering study...made a major contribution to understanding the elusive “lawmaking” rôle of the political processes in the United Nations.”Footnote ²⁵

Dr Higgins had showed, for the first time, the power and central role of the UN in creating international law, and she firmly established her contention, learned under McDougal's tutelage, that “[International] law is not an abstract application of rules: it is a process directed towards the implementation of policy goals for the common good”Footnote ²⁶. As Schachter put it “she faced squarely the contention that the views of governments expressed in UN debates and resolutions can have little legal significance .....[because they are] adopted for political and self-serving interests...[RH concluded] that it matters not ....“it would be a curious form of puritanism which insisted that convenience and legality could never run side by side””Footnote ²⁷.

During the interview I asked her to summarise the notion. “There are rules .....in treaties, or .....in prior case law, or in custom..... but I think that there is a very, very limited number of rules. Rules are things that simply cannot be gainsaid, and there's not much of that in international law.. .. The job of the international lawyer is to ....look at the facts of the present case and at the policy issues involved, and to find the preferred and better answer...That's it, in a nutshell.”Footnote ²⁸

It was a theme she used as the basis for her three-week long general course in international law which she was invited by the Curatorium of the Hague Academy to give in 1993, and which she prefaced by saying “International Law is not rule. It is a normative system.”Footnote ²⁹ This was the prelude to her taking her place on the bench of the ICJ in 1995.

As for the applicability of the notion in courts, I asked if the policy vs rule dilemma did not introduce elements of uncertainty into the decision making process. Dame Rosalyn was adamant that this was not the case: “..... because conservative people will say that once you move away from the rules towards policy relevance, you are introducing uncertainty. [B]ut the fact that a case ever gets to the court means that isn't the case. ......It's only the arguable points of law, both as to content and as to their applicability in the particular circumstances, that leads to litigation. So I believe those who say, “And the clear rule is” are simply kidding themselves. They are choosing one possible norm over another....I think it is much better to articulate openly what the possible choices are, the policy factors, and why international law should go one way, rather than another in the particular case.”Footnote ³⁰

She gave an example from her time at the ICJ to illustrate her view that international law can be applied to fit the circumstances, and that situations cannot arise where there is no rule to apply. It was apropos the case where the court was asked for an opinion on the legality of the use of nuclear armsFootnote ³¹. “Judge Vereshchetin Footnote ³², in his opinion....writes that there is a lex lata... a gap in the law there and that we just haven't yet reached the time to have laws on such things. I felt, and I think I may have said there, but have certainly said subsequently, I think “No”. Because international law [is a way] of making decisions, you have always got the tools to answer a particular problem even if you can't pull out of the drawer a prior decision on that problem...”Footnote ³³

Human rights

A second notion that Dame Rosalyn acquired early in her career was that human rights are universal. She held, and still holds, strongly that they are not relative to the cultural, religious or political milieu in which they have to be practiced. Her interest in human rights blossomed during her second stay at the London School of Economics (1974–78). Although this stint at LSE had started as merely an interim appointment, after she felt it was time to move on from Chatham House, her involvement in courses in the Department of International Relations brought Dame Rosalyn's into close collaboration with one of her talismanic figures – the late Dr Peter DuffyFootnote ³⁴. Duffy taught courses at Queen Mary College, and he teamed up with Dame Rosalyn for a fruitful, seminal period of collaboration in presenting a course on human rights at LSE. She remembers him with great fondness: “Dear Peter. I brought him to my chambers and he was so outstandingly good. He was a wonderful academic too. He was then at Queen Mary but we did a joint course because, as you know, at that time before LSE declared UDI, all the Masters courses were university-wide.”Footnote ³⁵

Spurred on by Duffy's enthusiastic treatment of the, then, relatively new body of case law at the ECHR, Professor Higgins decided to devise a course on the European Convention of Human Rights when she was invited to Yale to teach there in 1977: “[I said to myself, you]....should use this opportunity in going to Yale to start being pretty knowledgeable about the European Convention on Human Rights. You have to remember we are talking about a time where that had only been going for 15 to 17 years, so you really could be on top of it.” Footnote ³⁶ It was an analogue of the philosophy she had applied to her work on UN peacekeeping, a decade earlier. The notion of universality of these rights, which she had developed with Duffy, remained with her, and when she wrote her book “Problems and Process: International Law and how we use it,” Footnote ³⁷ it was a theme to which she remained true.

When I asked her about her general views, Dame Rosalyn said “Well, I still think that human rights are human rights. In all of my teaching, with Peter Duffy and otherwise, and my writings on human rights, you have to keep the focus on the idea of rights. Students at the beginning of the year in a human rights class I could see came from all over the world. I would say, “You can tell me what you like in class but I don't want to hear you just mouthing your government's point of view, I want you to be thinking.” Then on your broader point, the day that a student says to me, “No, in prison without trial is fine, I don't mind that at all because I come from such and such country.” That's rubbish, isn't it? If you look at it from the point of view of the person concerned, the rights are universal. Talking about cultural relativism is thinking about governments.”Footnote ³⁸ I followed with “And this is a position that you have maintained throughout? “Yes, very firmly.”

There was, however, during our interview, one concession to be made to cultural attitudes in the matter of human rights, if not in the belief, certainly in the application. Apropos her participation in a discussionFootnote ³⁹ with the onetime US Secretary of State Condalezza RiceFootnote ⁴⁰, the question had been raised why the US Supreme Court was usually late and qualified in accepting international norms relating to human rights. Rice had replied “because the culture is profoundly different”Footnote ⁴¹. In our interview I asked Dame Rosalyn to comment on this and she said “Well, I think there is in that culture a great distrust of foreigners and foreign thinking, of arrangements where others may decide the law over your heads, even if the contents of that law is something you fully agree with. So you take something like the Genocide Convention Footnote ⁴², there has never been a moment in history where the US thought genocide was lawful, but they came extremely late to accepting the Convention.”Footnote ⁴³ Similarly, there are wider limits. For instance, the extent of the right to self-determination of peoples has to be set against any move towards the creation of “uninational and unicultural states”. This is a theme Dame Rosalyn explores in chapter two of her book “Problems and Process”,Footnote ⁴⁴ having already defined the limits against a “postmodern tribalism [that] is profoundly illiberal” in her essay “Postmodern Tribalism and the Right to Secession, Comments.”Footnote ⁴⁵

Her expertise and deep thinking on matters relating to human rights were recognised in 1984 with her appointment to the United Nations Committee on Human Rights under the International Covenant on Civil and Political Rights? “....yes, my background in Convention law, which I knew a bit from what I had worked up for Yale, and what I had written and to listening to the wonderful Peter Duffy and preparing [lectures] with him. And knowing a great deal about the UN side of it all. When Sir Vincent Evans Footnote ⁴⁶, who was my predecessor....must have made HMG think maybe I could take this on. This is the Committee, not the awful Commission, but the Committee under the Covenant and Sir Vincent, who was on it from the outset had with a group of other starters, made sure the atmosphere was right. It was nothing to do with politics, cold war issues, absolutely nothing. So that was the first time the Government asked me to do anything and I was very thrilled.”Footnote ⁴⁷

It was during this eleven years of hard, but rewarding work that Dame Rosalyn was re-united with a former colleague from the University of Kent, Professor Claire Palley.Footnote ⁴⁸ Her work there took her down many byways, but answering a question I put to her on states' reservations, she described one area where contingency gave her the chance to strike a blow for human rights in a rapidly changing political landscape. “On a Human Rights Committee you must try and build up the corpus of law on human rights. So I think we did a lot of interesting things those years including general observations which were seven or eight page commentaries we drew up on particular articles under the Covenant and matters of that sort......It was an exciting time to be part of that committee.....during the latter part, the world began to change with Gorbachev Footnote ⁴⁹and Perestroika and all of that.....on reservations, of which I think it's generally known that I was the author, although [it] was apparently regarded as very controversial, I still think that was a good human rights move forward and pretty sound in law.....David Owen Footnote ⁵⁰phoned me one day and ....said, “Yugoslavia is disintegrating. What are we going to do about each of the units and your committee and human rights?” I talked with Fausto Pocar Footnote ⁵¹, the Italian who was then Chairman. I readily say we came up with a theory of international law that along with the things that devolve when the status of a country changes....we started telling the various component parts, “This is the law and you have now succeeded to Yugoslavia's rights and obligations under the Covenant and you are expected for a discussion meeting with us in three months.” They would say, “Oh yes, right” And that way if we got them all in and continued... None of them said, “No, it's nothing to do with me.” So that's what I mean about trying to build and do things.”Footnote ⁵²

LSE

At the LSE, Dame Rosalyn was conscious that the boisterous reputation of the institution gained in the 70s had come to epitomise it as a somewhat anarchistic centreFootnote ⁵³. In her interview, she put the record straight that this was not the case, and that she had found it a conducive environment because she was able to work constructively with people of widely differing political and social views.

“People have said, “Oh, isn't it all very Marxist.” It isn't at all, there is every point of view and everyone very tolerant of everyone else. They used to have these wonderful fortnightly meetings. Lord Desai Footnote ⁵⁴, who is now in the House of Lords – he was the Professor of Economics there. You will know him from TV… And Ken Minogue Footnote ⁵⁵, who sadly died last year, was a very right-wing Thatcherite Professor of Philosophy I think. They were great chums and they put on a weekly debate to which all the students could come. It was wonderful.”Footnote ⁵⁶

Here, her devotion to teaching and the well-being of students was the cause in which she was able to work so harmoniously with a wide cross-section of colleagues. During her previous stay at LSE, she had established a series of well-received courses with Peter Duffy, and now, as a professor in the Law Department, she was in a position to restructure the courses as she saw fit and to establish a rigorous but inclusive teaching regime for her students. Her devotion to her students was evident from the interview: “I have always prided myself on trying to look after the students and even later when practice started to build up I have had a contempt for those who do their practice and fit the students in. It absolutely has to be the way around. So I loved my teaching and as I also had.....I was a moral tutor.... the kids were in and out of the room with their problems.... that was where I learned you can't learn things from what they look like.”Footnote ⁵⁷

Her teaching style, reflecting further evidence Myres McDougal's legacy, was designed to bring out the best in her students, and to be as interactive as possible: “I have always taught by the Socratic method. There is no point having passengers... I did the undergraduate general course in international law....That was open to all undergraduates....I hate teaching where people constantly invite other people along to teach a lecture, that is just lazy teaching.”Footnote ⁵⁸

International Court of Justice

Once Dame Rosalyn arrived at the ICJ, she had to adapt her approach to entirely different circumstances, but essentially relied upon sensitive pragmatism and an innate understanding of what it was she was trying to achieve. Immediately prior to her elevation to the ICJ bench (in 1995), she had been awarded her DBE, but in a conscious effort to foster a sense of non-exclusiveness, she “decided to break with precedent and just be Judge Higgins....everyone makes their own choices.....I just wanted to be Judge Higgins. I was very thrilled to have the DBE, but I just wanted to line myself up with the rest of the bench. We do have these strange things in England that no-one abroad understands....”Footnote ⁵⁹

Dame Rosalyn's approach to her role on the bench was “always to have in mind the people we are trying to benefit with what you are doing” and for one whose “inclinations are to find things [that] are possible if one can, rather than impossible”, her approach was to “intellectualise within the framework of the law” rather than follow one's natural instincts.Footnote ⁶⁰ This approach during her time at the ICJ lead the court to become “a more liberal and less pompous place over the years,”Footnote ⁶¹ primarily by taking more cognisance of the rulings of other judicial bodies.

Figure 2:

Queen Elizabeth II visiting the International Court of Justice during Dame Rosalyn's Presidency. Lord Higgins on the right hand side.

A further crucial factor in establishing a culture of constructive engagement at the ICJ, which she enacted when she became President, was to reach out to other courts and also to the local (i.e. Dutch) community.

“For years the International Court had been the only international body but now, not only did we have other courts such as Strasbourg and Luxembourg, but right there in the Hague we had the Yugoslav Tribunal and the Rwanda Tribunal and very recently the International Criminal Court. We had to learn to have an efficient, friendly relationship with them.”Footnote ⁶² To this end “[on] my first official assignment, I took myself off to ITLOS Footnote ⁶³in Hamburg to pay them a visit, I think they were totally stunned. I tried always to do that sort of thing after to build good relations between the courts… I deliberately set out to do that and I think we did finish up with good relations all round.”

Similarly, “we had been through a period....of standing on our high horse with the Dutch authorities and I wanted to rebuild good relations with the Netherlands...[By the end of my Presidency].....we certainly finished up well again with the Dutch authorities.”Footnote ⁶⁴

On a personal level, Dame Rosalyn found dealing with a panel of very talented, opinionated jurists to be “undoubtedly very, very challenging..... they are people with strong views and very clever and a lot of politics does flow through these cases, and everyone comes with their own background and way of seeing things.”Footnote ⁶⁵

She explained that it was essential “to guide the discussions after the oral hearings. You draw up a list of what the key points are, people are invited to add to them and then the Court members go away and study their notes and the scripts and then write what is called a judge's note...essentially a draft judgment, but without full notes, ...on these various points. Then you have to in a very fair way preside over the discussions on these and at the end you have to be able to say, “Well, I think on this point we have got a majority, haven't we, and on that point, let's face it, we are so divided that if we don't need that point in the judgment let's try and go another way.”Footnote ⁶⁶ To achieve a strict sense of direction, a golden rule that she applied was that “I believe you, as a judge, should not opine on anything except when Counsel have had a chance to argue in front of you, and the other side come back on it. Otherwise you should keep your thoughts to yourself.”Footnote ⁶⁷

Figure 3:

Dame Rosalyn with UN Secretary-General Kofi Anan during a visit to the International Court of Justice.

Despite, or perhaps because of, these vicissitudes, Dame Rosalyn felt that during her time at the ICJ she achieved the objectives that she had set herself, and that on her departure “we had really good relations [both within and outwith the court]. [Overall, It] was a very happy and fulfilling time for me. I love The Hague, which is why I still live there for a considerable part of each year. There were some very good friends among my colleagues, each of whom was interesting. The issues that come up are always so fascinating. You do feel working on that incredible site, just so privileged each day to be coming to work at the Peace Palace in the gardens with the pond and all the creatures on the pond....really they were blessed years.” Footnote ⁶⁸

Figure 4:

Queen Beatrix of the Netherlands with Dame Rosalyn when she was awarded the Hague Prize in International Law (2011).

Dame Rosalyn Higgins retired from the International Court of Justice in 2009, having brought together the fruits of a lifetime to the apex of a glittering career: scholarly insights, unwavering adherence to her main legal notions, and an ability to work with and bring together colleagues of widely different dispositions. Readers can gauge the depth and extent of her contributions across the spectrum of her interests in the massive two volume memoir compiled during her retirement.Footnote ⁶⁹

I was very grateful to have been able to interview Dame Rosalyn in her elegant London home, and to hear first-hand of her achievements, all recounted in a modest, but confident tone. The experience further strengthened my belief that capturing such oral history adds greatly to any analysis of how eminent legal personalities develop ideas and opinions that set them apart from their peers.Footnote ⁷⁰