2015 Grotius Lecture: Some Thoughts About Grotius 400 Years On

Introduction to the 109th Annual Meeting

Opening Remarks by Laurie Damrosch

• Laurie Damrosch, President of the American Society of International Law, welcomes attendees to the opening event of the 109th annual meeting.

• The tradition of starting with the Grossest Lecture is highlighted, hosted by American University Washington College of Law.

Honoring Distinguished Members

• Judge Sir Kenneth Keith is recognized as this year's honorary member; he attended his first annual meeting as a student in 1965.

• Rosalyn Higgins will be designated a member emeritus for her 50 years with the society, having joined as a graduate student or intern at Yale and UN Legal Affairs.

Personal Anecdotes and Connections

• Damrosch shares personal anecdotes about both Kenneth Keith and Rosalyn Higgins, emphasizing their long-standing contributions to international law.

• A humorous note on age consent laws is made while discussing the couples' anniversaries celebrated during an earlier event.

Introduction of Dean Claudio Grossman

Leadership and Contributions

• Dean Claudio Grossman is introduced as an inspirational leader at American University Washington College of Law, known for programs in international humanitarian law and human rights.

• His extensive experience includes serving on the Committee Against Torture since 2003, where he has been re-elected multiple times as chair.

Upcoming Events and Topics

• An announcement about a closing plenary session on torture featuring Dean Grossman encourages attendees to check program updates for new additions.

The Importance of Tradition in International Law

Significance of the Gracias Lecture Series

• The Gracias Lecture series began as a partnership between American University Washington College of Law and the American Society to address vital issues in international law.

• The tradition reflects ongoing discussions about fundamental challenges facing the international community today.

Legacy of Hugo Grotius

• Hugo Grotius's contributions are acknowledged; his work laid foundational norms that shaped modern international law systems.

Introduction to Distinguished Speakers

Overview of Notable Figures

• The lecture features prominent figures such as Dame Roslyn Higgins, Sir Kenneth Keith, and Dame Rustling Healings, who are recognized authorities in international law.

• Previous lecturers included notable personalities like Radhika Kumaraswamy and Jake Kallenberg, contributing significantly to discussions on international relations and humanitarian issues.

Contributions to International Law

• Sir Kenneth Keith served on the International Court of Justice (ICJ) from 2015, with a distinguished legal career in New Zealand. His contributions to the ICJ are highlighted in today's program.

• Dame Roslyn Higgins has an extensive background in international law, having served as a judge on the ICJ for 14 years and currently presiding over the British Institute of International Comparative Law. Her scholarship covers various topics including human rights and state immunity.

Challenges Facing International Law

Current Global Issues

• The discussion emphasizes serious challenges to normative regulations concerning peace, security, human rights, and environmental concerns amidst rising skepticism towards international law's authority.

• There is a noted emergence of voices questioning the relevance of established paradigms within international law as it relates to global conduct.

Sir Kenneth Keith's Lecture Focus

Major Challenges for Practitioners

• Sir Kenneth Keith addresses significant challenges facing international law practitioners today while reflecting on historical contexts over the past 50 years. He aims to balance theoretical frameworks with practical realities in his discourse.

• He plans to revisit matters related to the law of the sea that he first engaged with during his early career at New Zealand’s Department of External Affairs around 1960.

Historical Context: The Law of the Sea

Development Over Time

• The second United Nations conference on the law of the sea faced challenges regarding territorial claims; New Zealand extended its fisheries zone which was contested by Japan but resolved through negotiation rather than court intervention.

• Historical claims by countries like Chile, Ecuador, and Peru regarding maritime boundaries illustrate evolving practices surrounding continental shelf claims during this period.

Hugo Grotius' Influence

Legacy in Maritime Law

• Hugo Grotius addressed maritime issues centuries ago while representing Dutch interests against Portuguese claims; his work laid foundational principles still relevant today in discussions about trade and fishing rights at sea.

• His treatise "Mare Liberum" published anonymously in 1608 emphasized natural rights concerning freedom of trade among nations—a concept that continues to resonate within contemporary legal frameworks governing maritime activities.

The Influence of Grotius on International Law

The Role of the Dutch East Indies Company

• The legal framework established by Grotius facilitated voyages like that of Abel Tasman, who explored the coasts of Australia and mapped New Zealand.

• The Dutch named New Zealand in a way that aligns it alphabetically with the Netherlands, showcasing their influence in international discourse.

Grotius's Contributions to International Law

• Grotius's work was pivotal in shaping international law; he had significant roles as an advocate and held major public offices.

• His writings, particularly "Mare Liberum," are considered foundational texts for international lawyers, despite being a brief for the Dutch East Indies Company.

Life Events and Their Impact

• Grotius experienced dramatic life changes including imprisonment for sedition, which led to his influential writing during confinement.

• His escape from prison and subsequent diplomatic role as Sweden’s ambassador in Paris marked significant turns in his career.

Philosophical Insights from Grotius

• In his later reflections, Grotius expressed despair over his perceived failures but emphasized the importance of scholarly contributions to law.

• He highlighted the value of transitioning between roles as a scholar and practitioner within legal reform efforts.

Enduring Messages from Grotius's Work

• One key takeaway is that scholarly work can have lasting impact beyond one's lifetime; Holmes noted thinkers' ideas resonate long after they are forgotten.

• Good legal frameworks should support effective public policy; this principle remains relevant today amidst global challenges.

The Nature of Just and Unjust Wars

Differentiation in War Ethics

• The speaker emphasizes the importance of distinguishing between just and unjust wars, referencing natural law and public law principles.

• There is a noted lack of clear boundaries between international law and national law regarding armed conflict.

Historical Context of Armed Conflict Law

• The speaker argues that laws governing armed force should not be viewed as a recent development, citing historical precedents.

• A practical implication arises: if states are subject to international rule of law, they should also engage in compulsory third-party settlement processes.

Challenges in Legal Jurisdiction Acceptance

Reluctance Towards Binding Procedures

• The reluctance of states to accept binding jurisdiction raises questions about their commitment to legal frameworks.

• Historical perspectives from theorists like Gregory Duncan highlight a long-standing opposition to such procedures without valid reasons.

Implementation of International Humanitarian Law (IHL)

Historical Developments in IHL

• The Geneva Convention's requirements for governments to instruct commanders on implementing humanitarian laws reflect ongoing concerns for better enforcement.

• Significant efforts have been made since the 1977 protocols to enhance protections under IHL, including discussions around the role of the International Committee of the Red Cross.

Modern Perspectives on IHL Adequacy

• In 2003, an international conference reaffirmed that existing IHL provisions are adequate for modern conflicts but emphasized the need for better implementation.

Sovereignty vs. International Cooperation

Tensions Between Nationalism and Global Governance

• Despite advancements, there remains a strong emphasis on state sovereignty which complicates international cooperation on humanitarian issues.

• Historical recommendations from past conferences suggest using institutions like the International Court of Justice for compliance disputes; however, many states resist this approach.

International Law and Quarantine: Key Insights

Legal Framework of Cuban Quarantine

• The propriety of the Cuban quarantine is not a legal issue; international law does not address ultimate power concerns.

• Various cases in the International Court of Justice (ICJ) highlight issues like nuclear weapons, armed conflicts, and specific regional disputes such as those from the Balkans and Iran.

Implementation Through National Processes

• Emphasizes the importance of national processes in implementing international law, particularly in mundane areas like trade and communications.

• Highlights ongoing piracy and war crimes trials in countries like Yugoslavia and Rwanda, showcasing national processes' significant role in addressing serious matters.

Historical Context of Jurisdiction on High Seas

• Refers to an 1870s New Zealand case that established exclusive jurisdiction for flag states on high seas, which was overlooked by the Permanent Court of International Justice (PCIJ).

Optimism for Third Party Settlement

• Despite challenges, there has been a positive trend in third-party dispute resolution through institutions like the Hague court. Improvements can enhance roles of international courts and tribunals.

• Cites Lon Fuller’s analogy about choosing appropriate instruments for different tasks to illustrate effective dispute resolution mechanisms.

Fisheries Management Case Study

• Discusses fisheries management in the South Pacific Ocean as an example of well-designed processes for sustainable resource use amidst threats to species. Parties committed to long-term conservation through a treaty framework.

• The South Pacific Regional Fisheries Management Organization emphasizes precautionary and ecosystem approaches while allowing consensus-based decision-making with provisions for majority voting if necessary.

Peru vs Chile Maritime Boundary Dispute

• Introduces Peru's international court proceedings against Chile regarding maritime boundary delimitation amid existing arrangements covering fisheries interests without explicit mention during negotiations.

• Reflecting on the lengthy judgment period post-hearing highlights complexities involved in international litigation concerning historical tensions between nations over resources like fisheries.

Management Commission Meeting and Legal Insights

Overview of the Management Commission's Task

• The meeting of the management commission commenced with the objective of establishing quotas for the upcoming year. This was amidst a challenge from the Russian Federation regarding a measure adopted in an earlier meeting, which was addressed during a hearing at PCA in The Hague.

Legal Principles and Fishing Rights

• A discussion on legal principles highlighted that new fishing methods and oil extraction technologies have shifted traditional notions, asserting that land dominates sea territories. This principle has become legally recognized despite its scientific inaccuracies.

• The speaker reflects on the paradox of land dominance over sea when many areas are below sea level, emphasizing climate change discussions and oceanic expanses compared to land masses.

Critique of International Law Developments

• The 1982 Convention on the Law of the Sea is critiqued for lacking clear criteria for equitable results in maritime disputes, leading to dissatisfaction among negotiators and judges alike. Critics argue it suggests "the principle of non-principle."

• Judges expressed concerns about subjective interpretations within court judgments, indicating a trend where states are increasingly reluctant to present cases before international courts due to perceived inadequacies in legal reasoning.

Evolution of Maritime Dispute Resolution

• Despite initial criticisms, there has been an increase in delimitation cases presented to courts over recent years, suggesting a growing reliance on established legal frameworks rather than avoidance by states. Recent decisions have shown broad acceptance among judges involved.

• The International Tribunal on the Law of the Sea applied these developed laws effectively in recent cases like Bay of Bengal, demonstrating robust judicial practices leading to largely unanimous decisions among judges.

Current Global Challenges Requiring Legal Attention

• Contemporary issues such as nuclear threats, climate change, pandemics, human rights violations, and armed conflicts necessitate close scrutiny by international lawyers and policymakers alike. These challenges highlight gaps in existing international regulations concerning natural disasters and health crises like pandemics.

• There is an emerging focus at international levels on comprehensive regulation regarding protection from natural disasters alongside pandemic preparedness efforts led by organizations like the International Federation.

International Health Regulations and Disaster Management

Overview of Global Disasters and Their Impact

• The United Nations Development Programme reported that over the past 20 years, 1.3 million people have died, and 4.4 billion have been affected by disasters caused by natural hazards.

• A staggering 93% of these deaths occur in developing countries, with economic losses from floods, earthquakes, and droughts totaling approximately $2.5 trillion over the last decade.

• Investment in prevention is highlighted; for every dollar spent on measures like seismic strengthening, $7 can be saved in losses.

• Diseases cause even higher mortality rates than natural disasters; malaria alone kills over 500,000 children annually in Africa.

• The Ebola outbreak resulted in more than 10,000 deaths and an estimated economic impact of at least $1.6 billion on three West African countries.

Historical Context of Disease Regulation

• Efforts to regulate the international spread of diseases date back centuries; local quarantines were first implemented during the Black Death plague.

• The latest International Health Regulations (IHR), adopted by WHO in 2005, stem from responses to cholera epidemics between 1820 and 1847.

• Increased cross-border travel and trade have introduced new challenges for controlling emerging infectious diseases due to advancements in communication technology.

• Previous regulations focused narrowly on just three diseases: cholera, plague, and yellow fever; they did not account for a broader range of public health risks today.

• Unwarranted travel restrictions often discourage timely reporting of disease outbreaks.

Legal Framework for Disease Control

Key Issues in Rule Development

• Questions arise regarding who should develop health regulations: official bodies or private NGOs? Should it be local, regional, or international?

• The nature of rules is debated—should they be binding laws or merely guidelines? For instance, some disaster relief guidelines are non-binding while IHR are legally binding.

Principles Underlying Health Regulations

• The IHR emphasize respect for human dignity and fundamental freedoms while aiming to protect global public health without unnecessary interference with trade.

• They assert states' sovereign rights to legislate health policies but also impose obligations related to capacity building and notification about disease outbreaks.

International Law and Humanitarian Response

Context of International Regulations

• The discussion highlights the broader context of international regulations, particularly in relation to emergency declarations and the work of the International Law Commission on boundary harm.

• There are ongoing debates regarding the handling of crises like Ebola, focusing on potential improvements in regulations and their administration.

Draft Articles on Protection During Emergencies

• The first set of draft articles aims to ensure an effective disaster response that respects human rights and affirms human dignity.

• Affected states are obligated to seek external assistance when disasters exceed their capacities; however, such assistance requires state consent, which is a fundamental principle in international law.

Limitations on Consent Refusal

• The draft articles propose limits on arbitrary refusals of consent for assistance, with commentary providing reasoning for this limitation.

• Reactions from states regarding these final texts will be significant for understanding future applications and interpretations.

Broader Responsibilities Beyond Judicial Roles

• The speaker reflects on moving beyond a confined judicial role to emphasize broader responsibilities within legal frameworks.

• Emphasis is placed on both process and principle in legal discussions, referencing Llewellyn's views on technique versus morals.

Reflections by Dame Rosslyn Higgins

Appreciation for Judge Keith's Lecture

• Dame Rosslyn Higgins expresses admiration for Judge Keith’s lecture, noting its scholarly depth and intellectual rigor.

• She agrees with Judge Keith about understanding historical contexts when analyzing legal works.

Significance of Historical Legal Figures

• Discussion includes how historical figures like Grotius articulated foundational ideas that remain relevant today despite lacking formal recognition in treaties or customs.

Personal Insights from Historical Context

• Reflecting on personal experiences with figures like Sakharov illustrates the importance of independent thought amidst oppressive information environments.

Natural Law as a Subjective Concept

• The conversation touches upon natural law's subjectivity and its foundational role in articulating liberal ideas within international law.

The Legacy of Hugo Grotius in International Law

Overview of Grotius' Contributions

• Hugo Grotius, a pivotal figure in international law, published significant works after his escape, notably the "Yer a Belly Act" and others that showcased his literary prowess while living abroad.

• A notable gathering in The Hague celebrated Grotius' 400th birthday, featuring various presentations including an epic poem by Ambassador Pinto from Sri Lanka that reflected on Grotius' life and contributions.

Reflections on Grotius’ Works

• The poem presented at the celebration drew parallels to Coleridge's "The Rime of the Ancient Mariner" and Tennyson's "The Lady of Shalott," highlighting the emotional depth and historical significance of Grotius’ legacy.

• A lengthy service commemorating Grotius included Queen Juliana’s attendance, emphasizing the importance placed on his contributions to international law.

Relevance of Grotius Today

• Discussion centers around how contemporary views on state authority and freedom of the seas contrast with Grotius’ original ideas, questioning if his legal sentiments are now outdated.

• The United Nations Charter reflects limitations on force usage primarily for self-defense; however, this contrasts with Grotius' broader justifications for war.

Evolution of Just War Theory

• Hugo Grotius articulated three justifiable causes for war: defense, recovery of property, and punishment. His views marked a shift towards modern interpretations of international law.

• Despite these principles, current interpretations under the UN Charter have narrowed definitions regarding lawful use of force significantly compared to earlier frameworks.

Challenges in Contemporary International Law

• The collective security system established by the UN has faced significant challenges since its inception; authorized military actions have often been fraught with complications.

• Humanitarian intervention remains contentious within international law; while it could be justified as a 'just war,' practical application is limited under current UN regulations.

Current State and Future Directions

• Modern states often hesitate to intervene in cases of religious persecution unless their own interests or co-religionists are threatened; this complicates humanitarian responses.

• There is an increasing reliance on regional actors for conflict resolution today; however, this trend presents both opportunities and challenges that continue to evolve within international relations.

International Law and Creativity

The Challenge of New Problems in International Law

• The emergence of new, complex issues in international law suggests that definitive answers may not be readily available from traditional sources. However, this does not imply a lack of legal frameworks to address these challenges.

• Judge Keith emphasizes the importance of an approach to international law that focuses on making authoritative decisions rather than adhering strictly to established norms, which may seem outdated or irrelevant.

Insights from Gabriel Garcia Marquez

• A quote from Gabriel Garcia Marquez highlights the necessity for imagination and proactive engagement with future possibilities, stating that mere passage of time will not yield change without active creativity.

• Marquez's reflections suggest that significant advancements (like heart transplants) were once only ideas before they became reality, underscoring the role of creativity in progress. This aligns with the need for innovative thinking within legal contexts.

Importance of Creativity in Legal Discourse

• The discussions emphasize capturing essential messages about creativity and discovery within international law, suggesting that these elements are crucial for evolving legal practices and principles.

• Acknowledgment is given to key figures who contribute significantly to understanding these concepts, reinforcing the value placed on creative approaches in addressing legal dilemmas.

Acknowledgments and Future Engagement

• Gratitude is expressed towards various individuals involved in organizing the event, including Norodom Rush and Mark Aggress, highlighting their roles in fostering dialogue around international law through lectures like this one.

• The American Society of International Law appreciates its partnership with academic institutions like American University, emphasizing collaborative efforts to support educational initiatives such as workshops and conferences throughout the year.

Announcements for Participants

• Attendees are encouraged to check their conference bags for updates regarding additional events scheduled during the meeting, including a plenary session featuring Dean Grossman. An app is also available for electronic access to information about these events.

• Finally, participants are invited to a reception next door following the presentations, fostering further networking opportunities among attendees after engaging discussions on international law topics.